Terms
Table of Contents
Aviron Industries Inc.
Master Services Agreement
Publication date: 24/03/2025
This Master Services Agreement (“Agreement”) is entered between Aviron Industries Inc., with a place of business at 301-486 St. Catherine Street West Montreal, QC H3B 1A6, Canada (“Aviron”), and the customer listed on the Subscription Order Form (“Customer”). Aviron and Customer are each referred to herein as a “Party” and collectively as the “Parties”. This Agreement is effective as of the date of last signature on the first Subscription Order Form entered into by the parties (“Effective Date”).
NOW INTENDING TO BE LEGALLY BOUND, the Parties agree as follows:
Table of Contents
- In this Agreement:
- “Agreement” means this Master Services Agreement, together with any Subscription Order Forms.
- “API” means application programming interface.
- “Customer Data” means the data submitted by or for Customer to the Aviron Platform or collected, Processed or produced by or for Customer using the Aviron Platform including any output produced as a result of Customer’s use of the Aviron Platform.
- “Data Protection Laws” means all laws and regulations applicable to the Processing of Personal Information under the Agreement, including, as applicable, laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act ).
- “Data Subject” means the identified or identifiable person to whom Personal Information relates.
- “Aviron Platform” means Aviron’s proprietary hosted software platform which enables solutions for maximizing workflow management, automation and operational efficiency for organizations across various functional areas or verticals such as sales and marketing, accounting and finance, operations and administration, healthcare and medical services, product development and engineering, conversational AI, and core technology and infrastructure.
- “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that Aviron generally makes available to subscribers to the Services, as the case may be.
- “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.
- “Personal Information” means any information relating to an identified or identifiable natural person as defined under Data Protection Laws.
- “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
- “Professional Services” means the services provided by Aviron or a Aviron authorized services partner, pursuant to a Subscription Order Form and the terms of Section 3 of this Agreement, which services, the fees therefor and any other terms and conditions applicable thereto shall be described in the Subscription Order Form.
- “Service Level Agreement” or “SLA” means Aviron’s Service Level Agreement set out in Schedule A.
- “Services” collectively means the Subscription, Professional Services, Support Services and any ancillary services available in connection therewith, as such Services may be updated from time to time by Aviron in its sole discretion.
- “Subscription” means the right granted by Aviron to Customer to access and use the Aviron Platform in accordance with this Agreement and the applicable Subscription Order Form, for the Subscription Period specified in the applicable Subscription Order Form.
- “Subscription Fee” means the fee payable by Customer for a Subscription as set out in the Subscription Order Form.
- “Subscription Order Form” means an electronic form provided by Aviron on its website or a written document executed by Aviron and Customer in respect to Customer’s purchases of Services from Aviron.
- “Subscription Period” means the period of time that Customer is authorized by Aviron to access and use the Services (including the Documentation).
- “Support Services” means the technical support services for the Services provided by Aviron as described in the applicable Subscription Order Form.
- “Support Terms” means the terms on which Aviron, or an authorized support partner, provides Support Services for the Services to Customer described in the SLA.
- “User” means an employee or contractor of Customer to whom Customer (or Aviron at Customer’s request) has supplied a user identification and password.
- Right to Access and Use the Services. Subject to the terms of this Agreement, Aviron hereby grants Customer a non-exclusive, non-transferable (except to the extent permitted herein), worldwide, right to access and use and to permit Users and, in certain circumstances where a publicly accessible feature of the Aviron Platform is deployed by Customer, to permit third parties to access and use the Services during the applicable Subscription Period.
- Reservation of Rights. Aviron and its licensors own and shall retain all right, title and interest in and to the Aviron Platform, the Services and Documentation and any enhancements or modifications thereof.
- Restrictions. Customer shall not (and shall not allow Users or any third party to: (a) download or copy the Services or any part of the Services, including but not limited any component which comprises the Services; (b) knowingly interfere with the operation of the Services and any of Aviron’s infrastructure and networks, including by means of intentionally submitting any Malicious Code, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) use the Services or any data obtained by the use thereof to develop any product or service that has functionality similar to the Services or part thereof (e) circumvent any timing restrictions that are built into the Services; (f) sell, rent, lend, transfer, distribute, license, or grant any rights in the Services or Documentation in any form to any person without the written consent of Aviron; (g) remove any proprietary notices, labels, or marks from the Services or Documentation; (h) create any “links” to or “frame” or “mirror” of the Services or any portion thereof; or (i) use the Services in violation of applicable laws.
- Professional Services. If provided for in a Subscription Order Form, Aviron, or its authorized services partner, will provide Professional Services according to the terms and conditions set out in the Subscription Order Form and this Agreement.
- Third Party Offerings. The Services may rely on or require that Customer access services delivered or performed by third parties independently of Aviron related to the Services, or other online, web-based services or other business application subscription services, that interoperate with the Services (collectively “Third Party Offerings”). Customer acknowledges that Aviron does not have any control over such Third Party Offerings. Customer further acknowledges and agrees that Aviron shall not be liable under this Agreement for any delays, rate limits, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to such Third Party Offerings.
- Commencement. Aviron will commence provision of the Services to Customer on the Contract Start Date specified in the applicable Subscription Order Form and shall continue such provision through the Subscription Period. As part of the registration process, Customer will identify an administrative User for Customer’s Aviron account.
- Support. Aviron will provide the Support Services specified in the applicable Subscription Order Form in accordance with the Service Level Agreement.
- Service Levels; Availability. Aviron will use commercially reasonable efforts to achieve the service levels set forth in the Service Level Agreement.
- Intellectual Property Rights. Although Aviron has no obligation to monitor Customer’s use of the Services, Aviron may do so and may prohibit or prevent any use of the Services by Customer if it believes Customer may be (or alleged to be) in violation of terms of the Agreement. Without limiting the foregoing, any use of the Services by Customer that, in Aviron’s reasonable judgment, imminently threatens the security, stability, integrity or availability of the Services, or otherwise harms Aviron, other customers or third parties, may result in immediate suspension of the Services, however Aviron will use commercially reasonable efforts under the circumstances to: (a) notify Customer in advance of such suspension, and (b) provide Customer with a reasonable opportunity to correct its usage prior to any such suspension. Aviron will have no liability for any such suspension. Unless this Agreement has been terminated, Aviron will restore Customer’s access to the Services once it verifies that Customer has resolved the condition requiring suspension.
- Suspension of Services. Aviron shall own all right, title and interest and all intellectual property rights in and to any inventions (whether patentable or not), discoveries, concepts, know-how, technology, software (in executable and source code), templates and modifications to the Services which have been created or developed by Aviron or its authorized services partner on behalf of Aviron, pursuant to a Professional Services engagement. Aviron shall retain all right, title and interest and all intellectual property rights in and to any and all Aviron proprietary information and the Services.
- Users. Customer is responsible for all activities performed by its Users and for its and its Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the means by which Customer acquired Customer Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Aviron promptly of any such unauthorized access or use; and (c) use the Services only in accordance with the Documentation and applicable laws and government regulations.
- Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, internet access, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords), API keys, authentication tokens, and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
- Feedback. Customer shall own all right, title and interest in and to the Customer Data. If Customer elects to provide any suggestions, comments, improvements, ideas or other feedback relating to the Services to Aviron (collectively, “Feedback”), Customer acknowledges and agrees that Aviron may incorporate into the Services any such Feedback without any obligation, payment, or restriction based on intellectual property rights or otherwise, excluding any Customer Confidential Information contained in the Feedback.
- Ownership. As between Aviron and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Aviron does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data.
- Aggregated and Anonymized Data. Notwithstanding anything to the contrary, Aviron shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Aviron will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Aviron offerings and to train machine learning or artificial intelligence models and algorithms, and (ii) disclose such data solely in aggregated or other anonymized form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- Customer’s Obligations. Customer’s instructions to Aviron for the Processing of Personal Information shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Customer acquired Personal Information and provided it to Aviron. Customer hereby represents and warrants to, and covenants with Aviron that Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Aviron to provide the Services.
- Relationship. In relation to all Personal Information Processed by Aviron under this Agreement, Customer will at all times be responsible for compliance with all Data Protection Laws. To the extent that Aviron Processes Personal Information in the course of providing the Services, it will do so only as a service provider acting on behalf of the Customer. Customer agrees to only provide Aviron the Personal Information necessary to provide the Services. To the extent Customer provides (i) unlawful or unnecessary Personal Information to Aviron, or (ii) instructions with respect the Processing of Personal Information that infringe applicable laws, it shall notify Aviron without delay. Customer shall indemnify, defend, and hold harmless Aviron from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or in connection with Customer's breach of Sections 5.1 and 5.2.
- Aviron’s Obligations. To the extent Aviron Processes Customer’s Personal Information to provide the Services, it shall Process it in compliance with Data Protection Laws. In particular, Aviron shall (i) Process Personal Information only for the purposes of providing the Services and in accordance with the Agreement or Customer’s instructions; (ii) implement appropriate technical and organizational measures to protect the Personal Information; (iii) provide notice, cooperate with and refer to Customer all requests received from a third-party in relation to the Personal Information; (iv) notify, cooperate with and refer to Customer all incidents involving Personal Information (any loss, theft, damage or unauthorized or unlawful access or communication of Customer’s Personal Information or as well as against any loss or other breach of the protection of such information), upon becoming aware of such incidents; (v) in the event of a material breach of this Section 5.3, subject to a written notice of at least 30 days from Customer, allow Customer to carry out reasonable verifications related to the confidentiality of Personal Information during normal business hours and (vi) upon termination or expiration of this Agreement, return all Personal Information to Customer or destroy it, except if Aviron is required to keep it for a longer period, including for archiving purposes.
- Cooperation. To the extent applicable, Aviron shall use commercially reasonable efforts to assist Customer to fulfill its obligations under Data Protection Laws. Customer shall be responsible for any costs arising from Aviron’s assistance under this Section 5.4.
- Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Aviron includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public Customer Data provided by Customer to Aviron to enable the provision of the Services.
- Confidentiality Obligations. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
- Exclusions. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. For the avoidance of doubt, the obligations set out in this Section 6.1 shall be in addition to those set forth in any non-disclosure agreement entered into between the parties.
- Fees. Customer will pay Aviron the Subscription Fees specified in the applicable Subscription Order Form for the Services in accordance with the terms contained herein and in the Subscription Order Form. If Customer’s use of the Services exceeds the pricing metric set forth on the Subscription Order Form, as applicable or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. When Professional Services are performed on a time and material basis, Customer shall pay fees at Aviron’s then-current Professional Services rates or as specified in the applicable Subscription Order Form (such Professional Services fees as well as the Subscription Fees being from time to time referred to as “Fees” herein). Customer shall reimburse Aviron for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by Aviron or its authorized services partner in the performance of any Professional Services, provided that such expenses are approved in advance in writing by Customer.
- Price Changes. Aviron reserves the right to change the Subscription Fees and the rates for the Professional Services at the end of the Subscription Period upon thirty (30) days prior notice to Customer (which may be sent by email).
- Taxes. Unless Customer provides Aviron with a valid tax exemption certificate or other information as may be required under applicable law with respect to any applicable taxes, Customer will pay Aviron for such taxes of the Services after being invoiced by Aviron. Aviron will remain responsible for all taxes that are applicable to any property or services acquired for use or consumption by Aviron in relation to the provision of the Services. For the avoidance of doubt, Aviron’s fees and expenses as set forth in this Agreement are exclusive of applicable taxes payable by Customer.
- Invoicing and Payment. Subscription Fees will be invoiced in advance and otherwise in accordance with the relevant Subscription Order Form. Unless otherwise stated in the Subscription Order Form, Fees are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Aviron.
- Late Payment Charges. Unpaid amounts are subject to a finance charge of 1.5% per month (18% per year) on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate suspension or termination of the Services.
- Suspension for Non-Payment. Aviron may immediately suspend Customer’s Subscription to use the Services if Customer fails to make any payment due in respect of the Services and does not cure such non-payment within ten (10) business days after receiving notice of such failure. Any suspension of the rights hereunder by Aviron under the preceding sentence shall not excuse Customer from its obligation to make all payment(s) under the Agreement.
- Payment Disputes. If Customer believes that Aviron has billed Customer incorrectly, Customer must contact Aviron no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Aviron’s customer support department. Aviron will not exercise its rights under Sections 8.5 or 8.6 hereof if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
- Audit Rights. Aviron shall have the right, with reasonable notice and during normal business hours, at Aviron’s sole expense and in as non-disrupting a manner as reasonably possible, to verify Customer’s compliance with Customer’s obligations hereunder through a remote or an on-site audit of Customer’s records, facilities and licensing processes by Aviron or a third party representative of Aviron. Customer shall permit up to one such audit per year, including once during the 12 month period following the termination of this Agreement for any reason. Aviron may use such audit reports solely to enforce its rights hereunder and shall otherwise treat audit reports and any information received in connection with such audits as Confidential Information. In the event that an audit establishes that Customer is in material breach of its obligations hereunder, Customer shall reimburse Aviron for the cost of the audit and shall promptly pay to Aviron all outstanding Fees.
- Term; Renewal. This Agreement commences on the Effective Date and shall continue until terminated earlier in accordance with the provisions of this Agreement or applicable law. This Agreement shall remain in effect and govern all Subscription Order Forms until (i) the end of the Subscription Period such Subscription Order Form, (ii) such Subscription Order Form is terminated by the Parties, or (iii) there has been full performance of the Parties’ respective obligations under such Subscription Order Form. Subscription renewal terms are specified in the Subscription Order Form. The term of the Professional Services engagement shall be specified in the Subscription Order Form.
- Subscriptions. Subscriptions commence on the contract start date specified in the relevant Subscription Order Form and continue for the Subscription Period specified therein unless terminated earlier as provided for in this Agreement.
- Termination. In addition to any other remedies it may have, either Party may also terminate this Agreement upon thirty (30) days’ prior written notice (or on five (5) days’ notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services (including the reimbursement of costs and expenses that Aviron is entitled to) up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- Limited Warranties. Aviron hereby represents and warrants to Customer that: (a) during the Subscription Period the Services will perform materially in accordance with the Documentation therefor; (b) the Services will not contain any Malicious Code; and (c) it owns or otherwise has sufficient rights in the Services and Documentation to grant to Customer the rights to access and use the Services and Documentation granted herein.
- General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. AVIRON MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE SERVICES; (III) ANY THIRD PARTY OFFERINGS; AND/OR (IV) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CUSTOMER DATA TRANSMITTED TO OR FROM AVIRON VIA THE SERVICES. AVIRON DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE SERVICES WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE AVIRON PLATFORM CAN BE FOUND IN ORDER TO BE CORRECTED. THE CUSTOMER ACKNOWLEDGES THAT THE SERVICES INCORPORATE THE USE OF GENERATIVE ARTIFICIAL INTELLIGENCE TECHNOLOGIES, WHICH ARE INHERENTLY PROBABILISTIC AND MAY PRODUCE INACCURATE, BIASED, OR UNPREDICTABLE OUTPUTS; ACCORDINGLY, AVIRON MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY, RELIABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY AI-GENERATED CONTENT, AND THE CUSTOMER ASSUMES ALL RISKS ARISING FROM ITS USE. AVIRON DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY PROVIDERS OF THIRD PARTY OFFERINGS OR THIRD PARTY HOSTING PROVIDERS. NO REPRESENTATION OR STATEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, SUPPORT SERVICES AND PROFESSIONAL SERVICES NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY AVIRON.
- Internet Connectivity Disclaimer. Aviron makes the Services available for access via the Internet. Customer is responsible for and shall ensure that Customer’s computer equipment and internet connection meets the minimum specifications published by Aviron in the Documentation and updated from time to time on Aviron’s website, and Customer shall periodically update Customer’s computer equipment and/or Internet connection to meet such minimum specifications. Customer hereby acknowledges that the Services may be interrupted due to (a) website or service downtime for scheduled maintenance at Aviron’s sole discretion, or (b) interruptions in Internet connectivity or other website or service downtime caused by circumstances beyond Aviron’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware or software not within Aviron’s control or network intrusions. Customer hereby acknowledges and agrees that Aviron shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases Aviron from any claims relating thereto.
- Indemnity. Subject to this Agreement, Aviron shall defend Customer against any claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Services and Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “IP Claim”) and pay all costs, damages and expenses (including reasonable legal fees) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement entered into by Aviron arising out of such IP Claim; provided, that Customer (a) promptly gives written notice of the IP Claim to Aviron; (b) gives Aviron sole control of the defense and settlement of the IP Claim (provided that Aviron may not settle or defend any IP Claim unless it unconditionally releases Customer of all liability); and (c) provides to Aviron, at Aviron’s cost, all reasonable assistance and information.
- Exceptions. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Aviron, including Third Party Offerings, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery to Customer, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement.
- Remedies. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Aviron to be infringing, Aviron may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.
Customer will defend Aviron against any claim, demand, suit or proceeding made or brought against Aviron by a third party alleging that Customer Data, or Customer’s use of the Services infringes or misappropriates such third party’s intellectual property rights or other rights or otherwise violates applicable law (a “Claim Against Aviron”), and will indemnify Aviron from any damages, legal fees and costs finally awarded against Aviron as a result of, or for any amounts paid by Aviron under a court-approved settlement of, a Claim Against Aviron, provided Aviron (a) promptly gives Customer written notice of the Claim Against Aviron, (b) gives Customer sole control of the defense and settlement of the Claim Against Aviron (except that Customer may not settle any Claim Against Aviron unless it unconditionally releases Aviron of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
- Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL OR REPUTATION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
- Limitation of Liability for Direct Damages. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL AVIRON’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
- Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS UNDER SECTIONS 11 OR 12 HEREOF, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.
- Application of Exclusions and Limitations. The foregoing limitations and exclusions of liability shall apply even if a party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply regardless of whether the action arose under contractual liability, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or extra-contractual liability or tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of Aviron shall also apply to its officers, directors, employees, and agents as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Aviron may assign this Agreement in its entirety (including all Subscription Order Forms), without consent of the Customer, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. If the Customer is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of Aviron, then Aviron may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Force Majeure. Neither Aviron nor Customer shall be deemed to be in default of any provision of this Agreement (other than Customer’s obligation to pay amounts due to Aviron hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, civil disturbance, strikes, fires or other catastrophes.
- Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
- Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.
- Governing Law. This Agreement shall be governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to its conflict of laws provisions, and any dispute or conflict arising out or relating to this Agreement shall be submitted to the exclusive jurisdiction of the courts of the Judicial District of Montreal (Quebec, Canada). The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.
- Entire Agreement. This Agreement is the entire agreement between Customer and Aviron in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written license agreement with Aviron or a distributor of Aviron.
- Purchase Orders etc. Except for Subscription Order Forms accepted by Aviron, the terms and conditions of this Agreement shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Services and Documentation.
- Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Signature, Counterparts, and Delivery. This Agreement may be signed electronically, including through DocuSign and similar applications. This Agreement may be signed in any number of counterparts (including counterparts by scanned or electronic signature) and each counterpart will be deemed an original; taken together, all counterparts will be deemed to constitute one and the same instrument. Delivery of a printed counterpart (whether or not the counterpart was signed electronically) or electronic delivery (including by email transmission or transmission over an electronic signature platform) of an executed counterpart of this Agreement are each as valid, enforceable and binding as if the signatures were upon the same instrument and delivered in person.
SERVICE LEVEL AGREEMENT
DEFINITIONS
Unless as defined below, the capitalised terms herein shall have the meanings set out in the Master Services Agreement.
- Actual Availability shall mean the actual Availability of the Aviron Platform as calculated in accordance with the formula in Section 2.2 below.
- Agreed Availability shall mean the agreed Availability of the Aviron Platform as defined in Section 6.1 below.
- Availability shall mean that the Aviron Platform is available at the Connection Point(s) and can be properly accessed and used by the Users.
- Business Hours shall mean the business hours specified in Appendix 1 hereto.
- Aviron’ Helpdesk shall mean Aviron’s helpdesk which can be reached via e-mail at the contact details specified in Appendix 1 hereto.
- Confirmation Time shall mean the time from a Trouble Report request until Aviron confirms receipt thereof.
- Connection Point(s) shall have the meaning ascribed to it in Appendix 1 hereto.
- Downtime refers to the number of minutes during the Measure Period when the Aviron Platform is not available at the Connection Point(s) (excluding any Downtime associated with a Service Window).
- Incident shall mean any defect, disruption, interruption or any other malfunction of the Services.
- Measure Period shall mean the period during which the Availability is being measured as specified in Section 6.1 below.
- Measure Time shall mean the period each day during which the Availability is being measured as further detailed in Section 6.1 below.
- Monthly Fee shall mean the monthly service fees paid by Customer to access and use the Services.
- Service Levels shall mean the service levels for the Services and the Incident resolution services as specified in Section 6 below.
- Service Credits shall mean the service credits specified herein.
- Service Window (SW) shall mean: (i) Aviron’s planned maintenance windows for the Services which shall occur at the times specified in Appendix 1; and (ii) any other service windows made upon Aviron’s prior written notice.
- Severity Level shall mean the classification of severity levels of Incidents as specified in Section 4 below.
- Trouble Report (“TR”) shall mean a report of an Incident made by Customer to Aviron’s Helpdesk.
AVAILABILITY OF THE SERVICES
- The provision of the Services shall, for each Measure Period, meet or exceed the Agreed Availability as specified in Section 6.1 below.
- The Actual Availability of the Services shall be calculated in accordance with the following formula:
A = Availability
MP = Measure Period (in minutes)
SW = Service Windows (in minutes during the MP)
DT = Downtime (in minutes during the MP) - Downtime is calculated from the earlier of: (i) when an interruption or disruption of the Services has been registered by Aviron’s monitoring system for the Services; or (ii) a Trouble Report has been issued by Customer to Aviron’s Helpdesk. Downtime will end when the Incident has been finally resolved, to the reasonable satisfaction of Aviron.
- The Availability of the Services shall be monitored and measured by Aviron.
TROUBLE REPORTS
- In case of an Incident affecting the Services, Customer shall issue a Trouble Report to Aviron’s Helpdesk which, as a minimum, shall include the following information:
- Identity and e-mail address of the submitter of the Trouble Report;
- A brief description of the Incident and its impact on the performance of the Services;
- If possible, a brief description on how the Incident can be reproduced; and
- Any other special information relating to the Incident as Customer deems necessary (such as e.g. examples of input, the resulting output and the expected output).
- Customer’s Trouble Report identification number shall be used in all subsequent communication between the Parties relating to the Trouble Report.
- In case of an Incident affecting the Services, Customer shall issue a Trouble Report to Aviron’s Helpdesk which, as a minimum, shall include the following information:
SEVERITY LEVELS
- An Incident shall be classified in accordance with the Severity Level classifications. Aviron, acting reasonably, is responsible for determining the Severity Level of the Incident.
Severity Levels Description Critical Incident A Critical Incident in the Services occurs when the Aviron Platform, or any core functions therein, cannot be used or is seriously affected. Serious Incident A Serious Incident in the Services occurs when certain functions in the Aviron Platform, or part thereof, is affected, disabled or otherwise not fully in compliance with the agreed specifications, but all the core functions of the Aviron Platform can be used. Minor Incidents Minor Incidents in the Services are Incidents which have no significant effect on the functionality or usability of the Aviron Platform.
- An Incident shall be classified in accordance with the Severity Level classifications. Aviron, acting reasonably, is responsible for determining the Severity Level of the Incident.
CORRECTION OF INCIDENTS
- Aviron undertakes to perform the following actions in relation to each Trouble Report:
- Confirm receipt of the Trouble Report within the Confirmation Times specified in Section 6.2 below;
- initiate troubleshooting activities and perform the actions specified in Sections 5.2 - 5.4 below; and
- as regards Critical Incidents and Serious Incidents, immediately inform Customer if Aviron’ troubleshooting activities manifests that there is no Incident in the Services; and
- advise Customer of any perceivable impact which a correction may have on the Services.
Aviron shall further advise Customer when it considers a Trouble Report as being closed. - Critical Incidents.
For Incidents classified as Critical Incidents, Aviron shall initiate actions immediately after receipt of the Trouble Report and shall deploy commercially reasonable efforts to provide a resolution of the Incident as soon as possible. Aviron shall keep Customer continuously informed of the progress of the correction work and shall, at Customer’s request, provide Customer with written progress reports. - Serious Incidents
For Incidents classified as Serious Incidents, Aviron shall initiate actions promptly after receipt of the Trouble Report and shall deploy commercially reasonable efforts to provide a resolution of the Incident as soon as possible. Aviron shall report progress as reasonably requested by Customer. - Minor Incidents
For Incidents classified as Minor Incidents, Aviron shall initiate actions, as soon as reasonably possible following receipt of the Trouble Report, considering Aviron’ then current workload and planning.
- Aviron undertakes to perform the following actions in relation to each Trouble Report:
SERVICE LEVELS
- Service Levels – Availability. The provision of the Services shall meet or exceed the following Availability Service Levels. Performance is measured between the agreed Connection Points listed in Appendix 1 below.
Measure point Measure Period Measure Time Agreed Availability The Connection Point(s) specified in Appendix 1 Calendar Quarter 00:00–24:00 99.95% - Service Levels – Incidents. Aviron shall respond and work toward resolution of Incidents in the Services in accordance with the below Service Levels. The time frames set out in the tables will be calculated from the issuance of a Trouble Report to Aviron’s Helpdesk.
Severity Levels Response Time Resolution Time (Target) Critical Incident 1 hour (during Business Hours) 4 hours (during Business Hours) Serious Incident 4 hours (during Business Hours) 2 business days Minor Incidents 1 business day N/A
- Service Levels – Availability. The provision of the Services shall meet or exceed the following Availability Service Levels. Performance is measured between the agreed Connection Points listed in Appendix 1 below.
SERVICE CREDITS
- Service Credits – Availability. In the event the Actual Availability is below the Agreed Availability during any Measure Period, Customer shall be entitled to a credit corresponding to 5x the number of minutes of Downtime above the Permitted Non-Availability and calculated as follows:
Where:
- C is the amount of the Service Credit;
- DT, SW, MP and SW have the meaning set out in Section 2.2;
- MF = the monthly fees paid by Customer for the Services;
- PNA = the number of minutes of permitted non-Availability in a Measure Period and is calculated as follows:
- Payment of Service Credits. Payment of the Service Credits shall be made solely as a credit on future invoices. Notwithstanding any other provision of this Schedule, the amount of Service Credits in any given month shall not exceed 100% of the Subscription Fees for such month.
- Service Credits – Availability. In the event the Actual Availability is below the Agreed Availability during any Measure Period, Customer shall be entitled to a credit corresponding to 5x the number of minutes of Downtime above the Permitted Non-Availability and calculated as follows:
| Definition | Description |
|---|---|
| Business Hours | 08:00am - 5:00pm Eastern Time |
| Connection Points | We calculate unavailability using server monitoring software to measure the server side error rate, ping test results, web server tests, TCP port tests, and website tests. Connection Points excludes the following:
|
| Planned Service Windows | Planned maintenance will occur between 8:00 PM – 6:00 AM Eastern Time on any day of the week, with at least 48 hours’ prior notice |
| Aviron’s Helpdesk contact details | E-mail: sla@aviron.ai |