Terms & Conditions - Avitru

MASTER LICENSE AGREEMENT

THIS MASTER LICENSE AGREEMENT (the “Agreement”), dated as of [●] (the “Effective Date”), is entered into by and between Avitru, LLC, a Utah limited liability company (“Avitru”), for itself and on behalf of the American Institute of Architects (the “AIA”), and the undersigned party (“Licensee”). 

WHEREAS, Avitru has experience and expertise in the business of licensing certain software and specification resources and Licensee desires to use such software and specification resources in furtherance of its business; and 

WHEREAS, Avitru is willing to license certain of its products, software, specification content and resources to Licensee and Licensee desires to license certain of Avitru’s products on and subject to the terms and conditions of this Agreement. 

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 

1)  Definitions.

“Authorized Site” means the authorized site or sites listed on the Licensee Order Form. 

“Authorized Third Party” means a third-party consultant, contractor or subcontractor that is hired by Licensee’s Authorized Site and is not an (1) employee of Licensee, or (2) affiliate of Licensee. 

“Authorized User” means (1) an employee or member of the Licensee’s business or organization that is directly associated with an Authorized Site, or (2) an Authorized Third Party. 

“Avitru Watermark” means the copyright notice set forth on Exhibit A attached hereto that is required to be included on any Licensee Product prior to distribution as permitted hereunder. 

“Licensee Content” means the specifications, data, graphics, text, audio content, information or material, including those portions of the Licensee’s Office Master that are not derived from the Product, owned by Licensee prior to the Effective Date and used in connection with the use of the Product and the development of the Licensee Product. 

“Licensee Order Form” means the Order Form, which this Agreement is attached to, delivered by Avitru to Licensee and executed by Licensee as of the Effective Date, and incorporated herein by reference, that sets forth: (1) the Product, (2) each Authorized Site and the Term for which the license granted hereunder for use of the Product at each Authorized Site is valid for, and (3) the License Fee. 

“Licensee Product” means a specification produced by Licensee through the use of the Product that (1) must include the Avitru Watermark, and (2) is solely and exclusively created for use in the performance of a Specific Construction Project, or used to create or update an Office Master for use in the performance of a Specific Construction Project or for the use in the performance of a future project provided that such use occurs under a valid and existing license with Avitru and in accordance with the terms herein. 

“License Fee” has the meaning assigned to it in Section 8.j of this Agreement. 

“Office Master” means a set of proprietary specification-standards documents used practice-wide by a particular firm or firm’s site. 

“Permitted Use” has the meaning assigned to it in Section 4 of this Agreement. 

“Product” has the meaning assigned to it in Section 2 of this Agreement. 

“Specific Construction Project” means Licensee’s construction project or projects for which the Product was specifically prepared. 

“Term” has the meaning assigned to it in Section 8.c of this Agreement. 

2)  License. Subject to and conditioned on Licensee’s compliance with the terms and conditions of this Agreement, Avitru hereby grants Licensee a limited, non-exclusive, nontransferable and non-sublicensable license to access and use the software, specification content and resources and related documentation that are listed on the Licensee Order Form (collectively, the “Product”) in accordance with the terms and conditions set forth herein. This license only permits the Licensee to allow an Authorized User to use and access the Product for use to prepare Licensee Product in accordance with the Permitted Use in Section 4. 

3)  Ownership; No Implied Rights. The Product is provided to Licensee solely for the Permitted Use under the express terms of the license granted by this Agreement. Except for the limited rights and license expressly granted under this Agreement, nothing in this Agreement grants to Licensee or any third party, by implication, waiver, estoppel or otherwise, any intellectual property rights or other right, title or interest in or to the Product or the Licensee Product. Avitru and AIA shall retain all of their respective rights, title and interest in and to the Product. 

4)  Permitted Use. Licensee may use the Product, and permit an Authorized User to use the Product, solely for the following purposes (collectively, the “Permitted Use”):

a) network and distribute the Product for use by an Authorized User at the Authorized Site in accordance with the terms herein; 

b) allow an Authorized User to edit the Product in the development of a Licensee Product in accordance with the terms herein and solely for use on a Specific Construction Project; 

c) reproduce and distribute the Licensee Product to Licensee’s customers and other relevant parties solely for use on a Specific Construction Project, and in a format that includes the Avitru Watermark as required herein; 

d) upload or otherwise place the Product or a Licensee Product on a project extranet, provided it is in locked PDF format and extranet is provided by a commercial firm, in accordance with the terms of this Section 4; and 

e) create or maintain an Office Master or edited guide specification as a template for creating a Licensee Product for use in the performance of a Specific Construction Project or for the use in the performance of a future project provided that such use occurs under a valid and existing license with Avitru and in accordance with the terms herein. 

5)  Restricted Uses. Licensee, shall not, and shall not permit any Authorized User or third party, to access, use or perform any other act on or related to the Product or a Licensee Product except as expressly permitted by this Agreement. Without limiting the foregoing, except as otherwise expressly permitted in this Agreement, Licensee shall not at any time, directly or indirectly:

a) use the Product for any purpose other than for preparing a Licensee Product for use on a Specific Construction Project or for creating and maintaining an edited guide specification for creating a Licensee Product; 

b) use or reuse the Product or a Licensee Product within Licensee’s organization at any site that is not an Authorized Site; 

c) use or reuse the Product or a Licensee Product on a project that is not included in the definition of “Specific Construction Project”; 

d) distribute, provide copies for review, allow access or send the Product to any third party that is not an Authorized User; 

e) distribute, provide copies for review, allow access or send the Licensee Product to any third party without the Avitru Watermark included thereon; 

f) knowingly allow or encourage a customer or third party to edit the Licensee Product once distributed by Licensee, unless such customer or third party provides written documentation to Licensee that is has a valid, existing and requisite license with Avitru, or Avitru provides its written permission and such customer or third party agrees to be bound by the terms herein; 

g) use the Product or any component of the products included in the definition of “Product” to create, improve, enhance, use as a research tool for, or update, a competing master specification system, including, without limitation, a new Office Master except as expressly permitted herein; 

h) copy, distribute, rent, loan, disseminate, copyright, publish, sell, resell, transfer, reproduce or create any derivative versions of the Product or Licensee Product, or any portion of the products included in the definition of “Product” or “Licensee Product”, except as expressly permitted herein; or 

i) upload, distribute or otherwise place any Product, or any portion of the products included in the definition of “Product”, on the internet except as expressly permitted herein. 

6)  End-User License Agreement for SpecBuilder Cloud Software. If the Product purchased by Licensee hereunder includes Avitru’s SpecBuilder and/or e-SPECs Cloud Software (the “Cloud Software”), then Licensee shall be bound by the End-User License Agreement For SpecBuilder Cloud Software attached hereto as Exhibit B (the “End-User License Agreement”) and such terms and conditions shall be incorporated as a part hereof. By signing this Agreement in connection with the use of the Cloud Software the Licensee agrees to be bound by the End-User License Agreement and the parties agree that Licensee’s use of the Cloud Software is subject to the End-User License Agreement and in the event of any conflict between this Agreement and provisions of the End-User License Agreement, this Agreement shall control. Avitru reserves the right to amend the End-User License Agreement upon written notice to Licensee. 

7)  Confidentiality and Licensee Responsibility.

a) Licensee understands and agrees that Licensee must review the Product for completeness and accuracy and edit the Product before incorporating it into a Specific Construction Project. If Licensee finds any errors or defects in the Product then Licensee must promptly notify Avitru in writing with sufficient detail to enable Avitru to identify and correct such errors or defects. 

b) Licensee is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, privacy and maintenance, and copyrights of all Licensee Content. Licensee acknowledges that it is solely responsible for maintaining the confidentiality of passwords used to access the Product and to only permit an Authorized User to access the Product. Licensee is responsible for any and all activities by Licensee or any Authorized User that occur under Licensee’s Product account. Licensee shall take commercially reasonable measures to safeguard and secure the Product from infringement, misappropriation, theft, misuse or unauthorized access. 

c) Licensee agrees to promptly notify Avitru in writing if Licensee becomes aware of any actual or suspected infringement, misappropriation or other violation of Avitru’s rights in the Product relating to Licensee’s use of the Product. 

d) Upon any suspected infringement, misappropriation or other violation of Avitru’s rights in the Product relating to Licensee’s use of the Product, Licensee understands and agrees that Avitru has the right, during normal business hours and on reasonable notice, to inspect, copy and review the records, servers and systems of the Licensee related to (1) its use of the Product, (2) its distribution of the Product or a Licensee Product, and (3) a Specific Construction Project. The inspection right provided by this Section 7.d shall apply to all forms of Licensee records including, without limitation, records stored in paper, electronic or cloud based format.  

8) General Terms and Conditions.

a)  Disclaimer and Limitation of Liability. Neither Avitru nor the AIA makes any representation or warranty as to (1) any Licensee Product, (2) the completeness or accuracy of the information presented in the Product, (3) that the Product (including the media upon which it is transmitted) will operate in conjunction with any particular software, hardware or operating system, (4) that the Product will not be modified or discontinued, or (5) the accuracy or success of the results of a Specific Construction Project. Other than as set forth herein, the Product is made available to Licensee “as is” on the condition that Licensee will make its own determination as to the Product’s suitability for Licensee’s purposes before its use. 

THE AIA AND AVITRU MAKE NO (AND EXPRESSLY DISCLAIM ANY AND ALL) REPRESENTATIONS AND/OR WARRANTIES HEREUNDER, EITHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT OR ANY LICENSEE PRODUCT, OTHER INFORMATION OR SERVICES PROVIDED HEREIN OR THE MATERIALS, PRODUCTS, SYSTEMS, OR APPLICATIONS TO WHICH THE INFORMATION REFERS.

NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED HEREIN, IN NO EVENT SHALL THE AIA, AVITRU, OR ANY THIRD PARTY WHO HAS PARTICIPATED IN DEVELOPING, MARKETING, OR DISTRIBUTING THE PRODUCT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR SPECIAL DAMAGES OR FOR ANY LOSS OF PROFITS INCURRED BY ANY PARTY IN CONNECTION WITH OR ARISING OUT OF THE USE OF THE PRODUCT. IN ANY EVENT, EXCEPT FOR INDEMNIFICATION OBLIGATIONS ARISING FROM AVITRU’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, AVITRU’s AND AIA’s CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE PRODUCT, INCLUDING ANY USE OF A LICENSEE PRODUCT PRODUCED THROUGH LICENSEE’S USE OF THE PRODUCT, SHALL NOT EXCEED THE TOTAL AMOUNT OF LICENSE FEES PAID TO AVITRU BY LICENSEE DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD. Some states do not allow the exclusion or limitation of implied warranties, so the above exclusions or limitations may not apply to Licensee.

b)  Indemnification. Licensee shall indemnify and hold harmless Avitru and the AIA from any claim, demand, or damage, including costs and reasonable attorneys’ fees, due to or arising out of third party claims related to (a) Licensee’s or an Authorized User’s use of the Product in violation of any term or condition of this Agreement, (b) Licensee’s or an Authorized User’s use of the Product in combination with any software, hardware, operating system or information prohibited by Avitru in writing, (c) any prohibited edits or modifications made by Licensee or an Authorized User to the Product, (d) Licensee’s or an Authorized User’s intentional misconduct, negligent acts or omissions related to a Specific Construction Project, (e) a third party’s use of any Licensee Product unless related to Avitru’s negligent acts or omission in preparation and delivery of the Product, or (f) any violation or breach by Licensee or an Authorized User of this Agreement, any applicable law, or any third party rights. Avitru shall indemnify and hold harmless Licensee from any claim, demand, or damage, including costs and reasonable attorneys’ fees, due to or arising out of third party claims related to (a) any violation or breach by Avitru of this Agreement, any applicable law or any third party rights, (b) Avitru’s intentional misconduct, negligent acts or omissions in preparation and delivery of the Product, or (c) the actual or alleged infringement or misappropriation of a third party’s patent, copyright, trademark, trade secret or other intellectual property right in the Product. 

c)  Licensee Liability for Unauthorized Use. In the event Licensee or an Authorized User (1) uses or reuses the Product or a Licensee Product at any site that is not an Authorized Site, or (2) uses or reuses the Product or a Licensee Product on a project that is not included in the definition of “Specific Construction Project”, then Licensee shall be obligated to pay to Avitru the License Fee that would be due for such use had Licensee or an Authorized User properly licensed the Product or Licensee Product as set forth herein. In addition, if Licensee fails to discontinue use of the Product or any Licensee Product as set forth herein after the termination, expiration or cancellation of this Agreement (as set forth in Section 8(c) of this Agreement), notwithstanding anything to the contrary stated herein, Licensee shall continue to be bound by the terms of this Agreement and shall be obligated to pay Avitru the License Fee for the time period during which such unauthorized use occurs. 

d)  Term, Renewal and Termination. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect for twelve (12) months (the “Initial Term”). This Agreement shall automatically renew for successive one (1) year terms on the same terms and conditions herein unless earlier terminated pursuant to any of the Agreement’s express provisions, or either party provides written notice of nonrenewal at least sixty (60) days prior to the end of the Term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”). If either party provides timely notice of its intent not to renew this Agreement, then, unless otherwise sooner terminated in accordance with this Section, this Agreement shall terminate upon the expiration of the Term. Either Party may terminate this Agreement with respect to the Product if the other party fails to cure a breach of this Agreement within thirty (30) days following written notice of the breach. Avitru may terminate this Agreement with respect to the Product if the AIA discontinues its service to Avitru. The termination, expiration, or cancellation of this Agreement shall not affect the respective rights and obligations of the parties arising under it before the effective date of termination, and shall not limit the parties’ rights and remedies under applicable law or in equity. Immediately upon termination, expiration, or cancellation of this Agreement for any reason, the rights granted to Licensee shall terminate and be of no further force or effect and Licensee shall immediately (i) discontinue all access to and use of the Product and any Licensee Product, (ii) destroy all components of the Product and any Licensee Product and remove the Product and any Licensee Product from any website or database hosted by Licensee, and (iii) within thirty (30) days of termination, expiration, or cancellation certify in writing signed by an officer or principal of Licensee that the Product and any Licensee Product has been destroyed and removed from Licensee’s continued access and use, including all copies of the Product and any Licensee Product, and that the Product or any Licensee Product has not been made available for use by any other party; provided, however, that notwithstanding anything to the contrary set forth in this Section 8(d), Licensee shall be permitted to maintain possession of non-editable, non-editable PDF copies of Licensee Products developed for a Specific Construction Project solely for archival project record purposes. Licensee acknowledges that Avitru may cut off Licensee’s access to the Product to give effect to the termination provisions in this Agreement. 

e)  No Export. Licensee understands and agrees that this Agreement permits Licensee to use and distribute the Product solely within the United States unless otherwise agreed to by Avitru in writing. Licensee agrees not to export or re-export the Product or any Licensee Product, directly or indirectly. 

f)  Confidentiality. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) Confidential Information. “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential”. The Receiving Party hereby agrees that the Confidential Information will be used by it solely for the purpose of this Agreement. Except as otherwise provided herein, the Receiving Party shall not use such information for its own benefit, or publish, or otherwise disclose to others, or permit the use by others for their benefit or the detriment of the Disclosing Party, any Confidential Information; provided, however, that nothing in this Section 8(f) shall prevent Avitru from collecting information of the Licensee and aggregating such information with other Avitru customers’ information in a manner that does not identify the name or identity of Licensee. 

g) Governing Law. This Agreement will be governed in all respects by the laws of the State of Utah. 

h)  Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties with respect to its subject matter and supersedes and replaces any and all prior written, oral agreements, or purchase order terms. Nothing contained in this Agreement shall be construed to limit either party’s rights and remedies available at law or in equity. A party’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. Licensee may not in whole or part, assign, transfer, novate, subcontract or sublicense this Agreement or any right or obligation under it except with Avitru’s prior written consent, and any assignment made in violation of this provision shall be invalid. However, Licensee may assign this Agreement, without Avitru’s written consent, to any successor in interest by way of merger or the acquisition of substantially all of Licensee’s assets; provided that (1) assignor’s account with Avitru is current at the time of assignment, (2) assignee is not a direct competitor of Avitru, and (3) assignee will be bound by Avitru’s then-current terms and conditions. 

i)  Changes in Terms and Conditions upon Renewal. Avitru reserves the right to revise future prices of the Product and change these terms and conditions upon a renewal of this Agreement. In no event shall Avitru increase any price payable hereunder for any annual period by more than seven percent (7%) over the preceding annual period. Such changes or revisions shall only become effective upon delivery of a written notice to Licensee. 

j)  License Fee and Payment Terms. In consideration of the rights granted hereunder, Licensee shall pay to Avitru the license fees set forth on Licensee Order Form for use of each Avitru Product (“the License Fee”) during the Term. The License Fee is non-refundable. The Licensee Fee shall be received on or prior to the Effective Date. All subsequent payments due hereunder shall be made on a Net 30 day schedule. In the event any payment due hereunder is not paid in full within ten (10) business days following receipt of notice that such payment is past due, Avitru may, in its sole discretion, terminate this Agreement and Licensee’s access to the Product. 

END-USER LICENSE AGREEMENT FOR AVITRU SOFTWARE 

The parties to the Master License Agreement to which this EULA (as defined below) is attached to and made a part of, hereby agree as follows: 

License 

1) License. Subject to the provisions of this End-User License Agreement for Avitru Software (“EULA”), Avitru grants to Licensee a revocable, non-transferable, non-sublicensable, and non-exclusive License to use Avitru’s SpecBuilder and/or e-SPECs Cloud Software, as applicable (the “Software”), solely in object code form. 

2) Third Party Software. By entering into this EULA, Licensee acknowledges that the Software may be subject to additional license agreements between Avitru and other third-parties regarding software and content that is embedded in the Software, and Licensee is the end-user of Software licensed to Avitru. Licensee acknowledges that the Software may include elements that are licensed to Avitru under, and are subject to, such third-party license agreements. Licensee agrees that it takes the license granted herein subject to any such third-party license agreements, and all of Avitru’s rights in any third-party software are subject to such third-party license agreements reservation of rights. Licensee acknowledges and agrees that Licensee is licensed to use the Software only in accordance with the express provisions of this EULA and not further or otherwise. 

3) Support. Avtiru will provide telephone and electronic support during Avitru’s published support hours for Licensee to report problems related to Licensee’s use of the Software and for assistance with regard to such problems. Avtiru will use commercially reasonable efforts to provide Error Corrections for all verifiable, reproducible Errors reported to Avitru. “Error” means a significant failure of the Software to substantially conform to the Documentation. “Error Correction” means either a software modification or addition in object code form that when made or added to the Software establishes substantial conformity to the Documentation or a procedure or routine that, when included in the regular operation of the Software, eliminates the practical adverse effect on Licensee of such nonconformity. An Error Correction shall be considered a portion of the Software within the meaning of the license grant in 1.1 above. Licensee acknowledges that Avitru may not issue Error Corrections for all Errors. Licensee shall receive periodic improvements and/or additions to the Software, including Error Corrections (“Updates”). All such Updates shall become part of the Software. Updates shall not include any new feature or substantial additional functionality which, in Avitru’s sole discretion, is subject to additional licensing fees and/or provisions. Avitru’s support obligations shall be excluded in the following circumstances: (a) following willful damage to the Software or negligence in its use by Licensee; (b) where the Software has not been used, maintained, and/or stored in accordance with any instructions or recommendations given by Avitru to Licensee or in accordance with the provisions of this EULA; (c) where problems with the Software arise from software not supplied by Avitru; (d) where the Software is used other than in the correct configuration; and/or (e) following any unauthorized use of or modification to the Software. 

Use, etc. 

4) Restrictions. Licensee shall not, to the fullest extent permitted by law: (a) copy or reproduce the Software; (b) merge the Software with any other software; (c) translate, adapt, vary, or modify the Software; or (d) disassemble, decompile, or reverse engineer the Software, or otherwise attempt to derive the source code of the Software. 

5) Further restrictions. Licensee shall not: (a) provide, disclose, demonstrate, or otherwise make available the Software to any third party except as expressly permitted herein; or (b) use the Software to provide any training for any third party; or (c) sell, lease, rent, transfer, hire-out, license, sub-license, assign, distribute, publish, charge, pledge, encumber, or have any software written or developed that is based on or derived from the Software; provided, however, that Licensee may offer a limited sub-license to its customers to access the Software for the sole purpose of allowing its customers access to non-editable versions of eSPECs. Notwithstanding the foregoing, in the event that Licensee is required to offer a limited sub-license to its customers to access the Software to allow its customers access to e-SPECs for purposes of editing eSPECs, Licensee must first obtain Avtiru’s written permission to do so and Licensee’s customer must agree to be bound by the terms set forth herein. 

6) Obligations. Licensee shall at all times: (a) supervise and control access to and use of the Software in accordance with the provisions of this EULA; (c) provide Avitru from time to time on request with contact details for the person(s) responsible for supervising and controlling such access and use. 

Confidential Information 

7) Confidential Information: Confidential Information means, collectively and without regard to form, any information which either party treats as confidential, including Trade Secrets (as defined below) and Trade Secrets means any information that (i) derives actual or potential economic value from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. For the purposes of this EULA, Trade Secrets includes the Software and derivative works. Confidential Information shall also include any information that is non-public proprietary information of value to Avitru, and any data or information defined herein as a Trade Secret but which is determined by a court of competent jurisdiction not to rise to the level of a trade secret under applicable law. 

Acknowledgements, disclaimers, etc. 

8) Acknowledgements. Licensee acknowledges and agrees that the Software is not error-free and agrees that the existence of any errors in the Software shall not constitute a breach of this EULA by Avitru. 

9) NO IMPLIED WARRANTIES, ETC. LICENSEE ACKNOWLEDGES AND AGREES THAT THE SOFTWARE IS PROVIDED “AS IS” AND THAT THE EXPRESS UNDERTAKINGS OF AVITRU HEREUNDER ARE INTENDED TO REPLACE AND SUPERSEDE ANY WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS AND OBLIGATIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, CUSTOM, TRADE USAGE, COURSE OF DEALING OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE SCOPE OF THE PRECEDING SENTENCE, AVITRU GIVES NO WARRANTY OR GUARANTEE THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT THE USE OF THE SOFTWARE WILL BE UN-INTERRUPTED, OR THAT ANY ERRORS AND/OR DEFECTS IN THE SOFTWARE CAN OR WILL BE CORRECTED. 

10) DISCLAIMER OF WARRANTIES – THIRD PARTY PRODUCTS. REGARDING THIRD PARTY PRODUCTS EMBEDDED OR INCLUDED IN THE SOFTWARE. LICENSEE ACKNOWLEDGES THAT THE SOFTWARE IS A PRODUCT PROVIDED TO AVITRU BY A THIRD PARTY AND AVITRU’S ABILITY TO MAKE REPRESENTATIONS AND WARRANTIES REGARDING THE SOFTWARE IS THEREBY LIMITED. AVITRU MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, OR EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SYSTEM INTEGRATION, NON-INFRINGEMENT, DATA ACCURACY, OR QUIET ENJOYMENT (ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED). DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THIRD PARTY PRODUCTS SHALL BE UNINTERRUPTED OR ERROR-FREE. 

11) Limitation of Liability and Exclusive Remedy. EXCEPT AS SET FORTHI IN SECTION 12 OF THIS EULA, LICENSEE’S EXCLUSIVE REMEDY IS TO CEASE USING THE SOFTWARE. IN NO EVENT SHALL AVTIRU OR ANY AVITRU PARENT, SUBSIDIARY, OR AFFILIATE, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY OTHER DAMAGES OF ANY KIND OR NATURE OR IN ANY MANNER WHATSOEVER, REGARDLESS OF THE CAUSE OF ACTION; INCLUDING ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR GOODWILL, OR TAX LIABILITY RESULTING FROM THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE (OR ANY PORTION THEREOF), MAINTENANCE, OR ANY OTHER PRODUCTS OR SERVICES, PROVISION OF OR LACK OF SUPPORT, OR OTHERWISE, EVEN IF AVITRU HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. 

12) Indemnity. Licensee shall indemnify and hold harmless Avitru from any claim, demand, or damage, including costs and reasonable attorneys’ fees, due to or arising out of third party claims related to (a) Licensee’s use of the Software in violation of any term or condition of this EULA, (b) Licensee’s or an use of the Software in combination with any software, hardware, operating system or information prohibited by Avitru in writing, (c) any prohibited edits or modifications made by Licensee to the Software, (d) Licensee’s intentional misconduct, negligent acts or omissions related to its use of the Software, (e) a third party’s use of the Software unless related to Avitru’s negligent acts or omission in preparation and delivery of the Software, or (f) any violation or breach by Licensee of this EULA, any applicable law, or any third party rights. Avitru shall indemnify and hold harmless Licensee from any claim, demand, or damage, including costs and reasonable attorneys’ fees, due to or arising out of third party claims related to (a) any violation or breach by Avitru of this EULA, any applicable law or any third party rights, (b) Avitru’s intentional misconduct, negligent acts or omissions in preparation and delivery of the Software. 

Duration and termination 

13) Commencement and termination. This agreement, and the License granted hereunder, shall come into effect upon Licensee’s payment for or first use of the Software, whichever is earlier, and shall continue in force unless and until terminated. 

14) Avtiru’s exclusive right to terminate. Avtiru may terminate this Agreement, and the License granted hereunder, at any time by notice in writing (including e-mail) to Licensee, such termination to take effect as specified in the notice. 

15) Consequences of termination. In the event of any termination of this Agreement:

• Any License granted by Avitru under this Agreement shall automatically terminate without further notice, and Licensee shall make no further use of, or carry out any other activity in relation to, the Software; and 

• Payments already made by Licensee for use of the Software for any future period shall refunded by Avtiru on a pro rata basis. 

• Notwithstanding anything to the contrary in this Section 15, if this Agreement is terminated by Avtiru, or Licensee ceases use of the Software, for any reason other than Licensee’s breach of this Agreement, Avtiru, in its discretion, may to the extent reasonable permit Licensee’s continued access to the Software for a period of 90 to 365 days following termination for the sole and exclusive purpose of Licensee’s extraction of Licensee’s data from the Software for Licensee’s future use. 

General 

16) Invalid clauses. If any provision or part of this EULA is held to be invalid, amendments to this EULA may be made by the addition or deletion of wording as appropriate to remove the invalid part or provision but otherwise retain the provision and the other provisions of this EULA to the maximum extent permissible under applicable law. 

17) No agency. Nothing in this EULA shall create, evidence, or imply any agency, partnership, or joint venture between the Parties. Neither Party shall act or describe itself as the agent of the other, nor shall it make or represent that it has authority to make any commitments on the other’s behalf. 

18) Governing law and dispute resolutions. The validity, construction, and performance of this EULA shall be governed by and construed in accordance with the laws of Utah. 

19) No use of names, etc. Neither Party shall use the names, marks, trade names, trademarks, logos, or registered images of the other Party without that Party’s prior written consent. 

20) Entire agreement. This EULA sets out the entire agreement between the Parties relating to the Software and supersedes all prior oral and written agreements, arrangements, or understandings between them relating to such subject. 

21) Entire agreement. This EULA is entered into in furtherance of the Master License Agreement between the parties and nothing is herein is intended to supersede the provisions therein. This EULA may not be assigned or transferred without the prior written consent of Avtiru.