Terms & conditions

Thank you for selecting the services offered by AVIUS AMERICA, LLC. Review these Terms of Service thoroughly.

Terms and conditions of sale

Parties:

The “Supplier” or “Avius” - AVIUS AMERICA, LLC, a Florida limited liability company, whose registered office is at 10162 Love Story Street, Winter Garden, FL, 34787.

The “Customer” - as defined in the Sales Contract.

Agreed terms

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Avius Feedback Buttons: Supplier supplied hardware with 3 hardware buttons to collect feedback.

Avius Feedback Buttons License: Supplier Software to enable Avius Feedback Buttons to collect feedback.

Avius Optimus Training and Setup: Supplier Software configuration and training for The Customer.

Avius Optimus User: Supplier Software user account for an employee of The Customer.

Brand Board: the printed sign that attached to a Floorstanding unit.

Brand Board Clips: the attachment required to attach a Brand Board to a Floorstanding unit.

Business Requirements Specification: the specification agreed between the Customer and the Supplier, and such other specifications as may be requested by Customer during the term of this agreement, which sets out the Customer’s business

requirements regarding the System.

Cellular Connection: the ability for a Survey Device to connect to a cellular network for data communication.

Commencement Date: the date on which the Sales Contract is beginning.

Computer Virus: means any virus, Trojan horse, trap door, back door, Easter egg, worm, time bomb, cancelbot, adware, spyware, malware or other similar programming code or data, malicious or benign, that without knowledge or authorization of Customer may damage, alter, interfere with, intercept, lock out, or expropriate any hardware, system, program, content, data, or personal information.

Conditions of Sale: conditions which apply to the Sales Contract which aren’t stated in this Terms and Conditions document.

Confidential Information: information of commercial value, in whatever form or medium, which has been kept confidential by the party (or any of its affiliates) from whom the information originates and which has not come into the public domain during the term of this agreement in breach of any obligation of confidence, including information relating to the System or any of its constituent parts, the Source Code relating to the System or any such parts, commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing. For avoidance of doubt, Personal Data of Customer is Confidential Information.

Contract Year: any 12-month period as per the dates shown in the Sales Contract.

Counter mounted unit: the counter mounted holder to hold the Survey Tablet or Avius Feedback Buttons available in black or white.

Customer Content: all data, imagery, information and other content (a) transmitted by Customer or on its behalf through the System; (b) provided by Customer or on its behalf for use in connection with the System; or (c) otherwise processed or stored by Supplier on Customer’s behalf pursuant to this agreement.

Customer Representative: a person duly authorized by the Customer to act on its behalf for the purposes of this agreement and identified to the Supplier by written notice from the Customer on the Sales Contract.

Customer Representative Address: the physical address to be used for communications to the Customer Representative.

CX Plus Survey License: Supplier Software with unlimited questions and response options including multi-lingual and custom built analytics.

CX Premium Survey License: Supplier Software with unlimited questions and response options including multi-lingual.

CX Standard Survey License: Supplier Software with unlimited questions and response options.

CX Starter Survey License: Supplier Software limited to an initial question and one comments question.

Data Protection Law: all applicable data protection law and regulations.

Defect: means (a) an error in the System that causes it to fail to operate in accordance with the relevant Documentation or Customer’s Business Requirements Specifications; (b) any Computer Virus; or (c) any failure of the System to meet Customer’s quality assurance or acceptance testing.

Delivery: the cost of shipping Hardware to the Sites.

Dispute Resolution Procedure: the procedure for dealing with disputes under this agreement as set out in clause 36.

Documentation: the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable and/or machine-readable forms supplied or generally published by the Supplier.

End Date: the date on which the Sales Contract is terminating.

Fixed Duration: the number of day between the Start Date and End Date indicating the length of the Sales Contract

Floorstanding unit: the freestanding pedestal to hold the Survey Tablet or Avius Feedback Buttons available in black or white.

FM Plus Survey License: Supplier Software with unlimited questions and response options in addition to digital signage and stall occupancy / footfall counters.

FM Premium Survey License: Supplier Software with unlimited questions and response options.

FM Standard Survey License: Supplier Software limited to an initial question and one follow up and comments question.

GDPR: General Data Protection Regulation is a regulation in European Union law on data protection and privacy in the European Union (EU) and the European Economic Area (EEA). It also addresses the transfer of personal data outside the EU and EEA areas

Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector.

Hardware Delivery Date: as defined in the Sales Contract.

Intellectual Property Rights: all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or not) and all applications for the same which may now or in the future subsist anywhere in the world, including the right to sue for and recover damages for past infringements.

License: the license granted under clause 12.

Manufacturers’ Warranties: the warranties given by any third-party manufacturer in relation to any item of the Supplier Hardware.

New Releases: a new release of all or any part of the Supplier Software suitable for use by the Customer in which previously identified faults have been remedied or to which any modification, enhancement, revision or update has been made, or to which a further feature, function or functions have been added. A new version of the Supplier Software released by the Supplier after the Commencement Date which provides additional or improved features, functionality or performance.

Normal Working Hours: the hours 9 am to 5 pm EST Monday to Friday.

Organization Setup: the process of setting up the Customer on the Supplier’s reporting servers.

Payment Due Date / Due Date: the agreed payment due date as shown on the Sales Contract.

Payment Schedule: the proposed payment timeline for the Sales Contract.

Personal Data: data subject to protection under Data Protection Law in any jurisdiction.

Price: the aggregate price for the Hardware and Supplier Software (other than Training and any other Support Services) and the License, as specified in the Sales Contract.

Project Manager: the Supplier employee appointed in the Sales Contract who has overall responsibility for the Hardware and Supplier Software and is duly authorized by the Supplier to act on its behalf for the purposes of this agreement.

Ready for Service: installed, tested and having passed or deemed to have passed all Supplier tests.

Reporting Services: the online environment where The Customer will access data collected from the Survey Devices.

Reporting Services Consultancy: ad-hoc work completed by The Supplier to adjust Reporting Services to the request of The Customer charged hourly.

Reporting Services Setup: the configuration of the Reporting Services.

Sales Contract: the documents executed by both parties containing the variables of this agreement and acknowledgement that they will be bound by the terms and conditions of this agreement.

Server: a cloud based (online / internet connected) computer where The Supplier hosts the Reporting Services

Services: the services, works, deliverables, duties and obligations to be performed and carried out by the Supplier under this agreement, and any data migration referred to in the Business Requirements Specification.

Service Level Agreement: part of a service contract where a service and performance standards are formally defined between a Supplier and Customer.

Setup / Question Support: the hours required to onboard a client.

Sign: a sign which the Avius Feedback Buttons mount to, which is then attached to a wall.

Site(s): the location(s) at which the System is to be installed as specified in Sales Contract.

Software Delivery Date: shall be the Hardware Delivery Date.

Source Code: the source code of the software to which it relates, in the language in which the software was written, together with all related flow charts and technical documentation, all of a level sufficient to enable the Customer’s development personnel to understand, develop and maintain that software.

Supplier Hardware: all the computers and other equipment to be supplied by the Supplier to The Customer as set out in the Sales Contract, whether manufactured by Supplier or a third party.

Supplier Software: Supplier’s proprietary software, as set out in Sales Contract.

Support Services: those services defined in the Section 16.6 (Service Level Agreement)

Support Charges: those charges as set out as such in the Sales Contract.

Support Staff: those officers, employees, agents or subcontractors of the Supplier connected with this agreement, including those individuals who perform the Supplier’s obligations under this agreement.

Survey Tablet: the electronic device being used to run the Supplier Software.

Survey Tablet Setup: the process of calibrating the Survey Tablet by The Supplier

System: the system consisting of the Supplier Hardware, the Supplier Software and the Documentation.

Wallmounted unit / VESA: the wall mounted device to hold the Survey Tablet available in black or white.

Wi-Fi only: a Survey tablet without a Cellular Connection.

2. Scope

2.1 The Supplier grants the License and shall supply to the Customer, in accordance with this agreement:

a) the Supplier Hardware;

b) the Supplier Software and the Documentation;

c) the Services specified in the Sales Contract; and

d) the Support Services.

2.2 The Price is specified in Sales Contract.

3. Hardware products to be provided

3.1 The Supplier shall supply all items of Supplier Hardware, together with all related Documentation provided by Supplier or third-party manufacturers of items of Supplier Hardware.

3.2 The Supplier will deliver the Supplier Hardware directly to the Sites already set up by the Supplier and with the Supplier Software ready loaded. Each Site will be provided with the Documentation explaining how to make updates and activate the Supplier Hardware. Supplier personnel shall be available to assist Customer with installation, as may be requested by Customer from time to time.

4. Hardware delivery and delays

4.1 The Supplier shall deliver the items of Supplier Hardware to The Customer by the applicable Hardware Delivery Dates.

4.2 If any delivery is delayed at the request of, or because of the acts or omissions of, the Customer the Hardware Delivery Date shall be amended to take account of such delay

5. Hardware testing

5.1 Before delivering any item of Supplier Hardware to the Site, the Supplier shall carry out reasonable tests compliant with Good Industry Practice to ensure that such item is in operable condition and is capable of meeting the requirements of the Business Requirements Specifications once installed.

6. Hardware warranties

6.1 The warranties given in this clause 6 are in addition to warranties given in other parts of this agreement.

6.2 The Supplier represents and warrants that:

a) the Supplier Hardware will be of satisfactory quality and will conform to and be suitable for the purpose for which it is intended under the Documentation, Business Requirements Specification, and as specified in detail in the Sales Contract;

b) as far as it is able, the Supplier will pass on to the Customer the benefits of any Manufacturers’ Warranties or assign to Customer all assignable representations and warranties received from the manufacturers of any third-party Supplier Hardware;

c) at the time of its sale to Customer, Supplier has good and marketable title to the Supplier Hardware and has the right to resell the Supplier Hardware referred to in this agreement free and clear of all liens, encumbrances, claims or other restrictions, and that it will not be in breach of any contractual obligation or in violation of any law or judgment in selling such Supplier Hardware to Customer;

d) Customer’s purchase and use of the Supplier Hardware does not and will not directly or indirectly violate, misappropriate or infringe upon any Intellectual Property Rights of any third party or contribute to such violation, misappropriation or infringement;

e) The Supplier Hardware will not violate any applicable law, rule, or regulation, and that Supplier possesses all permits required to comply with such laws, rules, and regulations; and

f) The Supplier Hardware does not and will not contain any Computer Virus. Supplier shall immediately advise Customer, in writing, upon reasonable suspicion or actual knowledge that the Supplier Hardware may or does contain a Computer Virus.

7. Software and documentation

7.1 Supplier represents and warrants that The Supplier shall carry out the Services with reasonable diligence and dispatch, with reasonable skill and expertise and in accordance with Good Industry Practice, and will provide the Services and System in accordance with the Documentation and Business Requirements Specifications.

7.2 The Supplier shall provide the Supplier Software, under the terms of this agreement.

7.3 The Supplier shall provide to the Customer from time to time copies of the Documentation containing sufficient up-to-date information for the proper use and maintenance of the System. Such Documentation may be supplied in electronic form.

7.4 The Customer may make such further copies of the Documentation as are reasonably necessary for the use and maintenance of the System and for training the Customer’s personnel in use of the System. The Customer shall ensure that all Supplier’s proprietary notices are reproduced in any such copy.

8. Services

8.1 On the terms and conditions set out in this agreement, the Supplier agrees to:

a) perform the Services;

b) deliver the Supplier Hardware to the Site(s);

c) provide the System Ready for Service; and

d) perform the Support Services.

9. Delivery, installation and delays

9.1 The Supplier shall deliver each item of Supplier Hardware and Supplier Software to the Site(s) on or before the applicable Supplier Hardware or Software Delivery Date for that item.

9.2 The Customer shall, at its own expense, prepare the Site(s) in accordance with the information provided by the Supplier in advance of each Hardware Delivery Date or Software Delivery Date. The Customer may request reasonable assistance from the Supplier to carry out such preparation.

9.3 The Customer shall have the opportunity to inspect and test Supplier Hardware and Supplier Software upon delivery. Supplier shall promptly replace any Supplier Hardware and/or Software that does not perform consistent with specifications set forth in the Documentation.

10. Payment

10.1 The Supplier shall submit complete and accurate invoices in accordance with the Sales Contract. The Customer shall make payment of each undisputed invoice by the Payment Due Date stated in that invoice.

10.2 The Price and all other payments are net of any sales or other governmental taxes, except for taxes based on Supplier’s income. The Customer shall, in addition, pay to the Supplier the amount of any tax, duty or assessment, which the Supplier is obliged to pay and/or collect from the Customer in respect of any supply under the agreement (other than tax on the Supplier’s income).

10.3 All invoices issued by the Supplier under or in connection with this agreement shall be accompanied by a sufficiently detailed breakdown of the matters being invoiced.

11. Ownership

11.1 The Intellectual Property Rights in the Supplier Software are, and shall remain, the property of the Supplier, and the Supplier reserves the right to grant a license to use the Supplier Software to any other party or parties.

11.2 The Supplier Software and the Documentation are proprietary to the Supplier and the Customer acquires no rights in or to the Supplier Software or the Documentation other than those expressly granted by this agreement.

11.3 The Intellectual Property Rights in the Customer Content are, and shall remain, the property of the Customer.

12. Software license and documentation

12.1 The Supplier grants, subject to the terms of this agreement, the Customer (and third-party contractors performing services for the benefit of Customer) and its affiliates the perpetual, worldwide, royalty-free, non-exclusive right to use the Supplier Software and the Documentation for any purpose related to Customer’s business. Such rights shall not be withheld or revoked, so long as the Customer is not in default of the terms of this Terms and Conditions agreement and any other agreements between the parties.

13. Use and adaptation of supplier software

13.1 The Customer may use the Supplier Software with other software.

13.2 The Customer may not make adaptations or variations of the Supplier Software without the prior consent of the Supplier. Supplier shall respond promptly to Customer’s requests for adaptations, variations, or upgrades to the Supplier Software and provide a resolution within two (2) days of Customer’s request.

13.3 The Customer may not disassemble, decompile, reverse translate or in any other manner decode the Supplier Software, except as permitted by law.

14. New releases

14.1 At least as frequently as it supplies New Releases to its most favoured customers, the Supplier shall, at no additional cost to Customer, supply the Customer with New Releases in machine-readable form. The Supplier may make such New Releases available for downloading over the internet.

14.2 if a notified Defect halts or substantially impairs the Customer’s operations which use the System, the Supplier shall start work on correcting the Defect immediately after receipt of such written notification, shall use all best efforts to correct the Defect as soon as possibleand shall keep the Customer informed of progress towards the correction of the Defect.

15. Supplier personnel: system and support services

15.1 The Supplier undertakes that its employees and contractors, while on the Site(s) or any other premises of the Customer, will comply with all relevant rules and regulations laid down by the Customer from time to time for the conduct and behaviour of its own employees and contractors, as notified to the Supplier from to time.

15.2 The Supplier alone shall be responsible for the supervision, direction, control, wages, taxes, and benefits of the Support Staff. The Supplier assumes full responsibility for their acts and omissions and acknowledges that they are not employees or agents of the Customer.

16. Support services

16.1 The Support Services include the processing of data into readable format for The Customer, including access to the reporting dashboard and Reporting Services.

16.2 Reporting Services

a) There will be a shared link to access the data which is collected.

16.3 Servers - The data servers are physically stored at “The Be Company”, County Gates in Bournemouth. The server room is protected by access cards and biometric security. Offsite backup servers are located in Reading.

16.4 Technical Support - Technical support is available via the main contact telephone number 863 207 1641 a line manned 08:00 to 5:00 Monday to Friday EST. Email support is supplied and monitored 7 days a week via support@avius.com. All email requests sent to the support email address will be allocated a case number for that request.

16.5 Account Management & Key Points of Contact

a) Ben Story, CEO and

b) Will Gunaratne, Managing Director

c) Christopher Williams, VP of Customer Success

16.6 Service Level Agreement

a) Each service is backed by a Service Level Agreement and regular onsite and offsite backups. The Supplier will comply with the Service Level Agreement, working on the following terms and conditions;

b) Report Server Errors Resolution Time: 24 hours;

c) Online Data Backup: Every 24 hours; and

d) Offsite Data Backup: Every 7 days;

e) Uptime of The Supplier Software and Services: 99% uptime

16.7 Response and Resolution Time

17. System: project management

17.1 The Supplier shall appoint the Project Manager as defined in the Sales Contract, who shall have the responsibility and commensurate authority for the overall progress of the Services and to whom all questions regarding this agreement can be referred.

17.2 The Customer Representative shall co-operate with the Project Manager and shall attend meetings scheduled by the Project Manager at reasonable intervals to advise and assist the Supplier on all matters relating to the Services.

18. Support services: customer’s obligations

18.1 During the term in which the Support Services are to be provided under clause 25.2, except as otherwise provided herein the Customer shall not, without the Supplier’s prior written approval, allow any person other than a representative of the Supplier to modify, repair or maintain any part of the Supplier Software.

19. Confidentiality and publicity

19.1 Each party undertakes not to use the other party’s Confidential Information otherwise than in the exercise and performance of its rights and obligations under this agreement.

19.2 In relation to the Customer’s Confidential Information, The Supplier shall treat as confidential all Confidential Information of the Customer contained or embodied in the Customer Content, or otherwise supplied under this agreement. Customer Personal Data is Confidential Information.

19.3 In relation to the Supplier’s Confidential Information, The Customer shall treat as confidential all Confidential Information of the Supplier contained or embodied in the System or Documentation, or otherwise supplied to the Customer during the performance of this agreement.

20. Data protection / General Data Protection Regulation (GDPR) and Data Protection Act 1998 / California Consumer Privacy Act 2020

20.1 Customer Personal Data means any Personal Data provided by or on behalf of the Customer.

20.2 Avius shall:

a) only carry out processing of any Customer Personal Data on the Customer’s instructions; and

b) implement and maintain appropriate physical technical and organisational measures to protect any Customer Personal Data against unauthorised or unlawful processing and accidental loss or damage.

Avius represents and warrants that the security measures it takes in performance of its obligations under this agreement are, and will at all times remain, consistent with: (i) Privacy & IT Security Best Practices (as defined by ISO 27001/27002); and (ii) any security requirements, standards, obligations, specifications and event reporting procedures required by any law. Avius will regularly assess, test, and monitor the effectiveness of the information security program’s key controls, systems, and procedures.

20.3 Avius is a data processor for the purposes of collecting and processing Personal Data on behalf of the customer.

20.4 Avius shall promptly and fully notify the Customer in writing of any notices in connection with the processing of any Customer Personal Data, including subject access requests, and provide such information and assistance as the Customer may reasonably require.

20.5 Avius shall notify Customer as soon as possible, and in no case later than twenty-four (24) hours, after Avius becomes aware of evidence that would lead Avius to reasonably conclude that a Security Breach may have occurred. A “Security Breach” for purposes of this agreement means (i) the unauthorized or unlawful access, acquisition, use, disclosure, modification, loss, or destruction of Customer Personal Data; or (ii) any security breaches to Supplier Hardware, Software, or Services that could result in the unauthorized access, disclosure, misuse, alteration, destruction, or other compromise of Customer Personal Data. Avius will take immediate steps to remedy the Security Breach at Avius’ expense in accordance with applicable privacy rights, laws, and industry standards. In addition to any other indemnity obligations, Avius will indemnify

Customer for all costs and damages incurred in responding to and mitigating damages caused by a Security Breach. Avius will promptly use its best efforts to prevent a recurrence of any such Security Breach.

20.6 Avius is a registered data controller and all data is stored securely in accordance with the GDPR. All data is the sole property of the Customer and will not be shared with any other party without explicit permission from the Customer.

• Avius shall comply with all applicable obligations imposed by the California Consumer Privacy Act of 2018, California Civil Code §1798.100, et seq., and any related regulations or guidance provided by the California Attorney General (collectively, the “CCPA”). Avius agrees and acknowledges that:
• Avius shall disclose or make available to Customer the categories and pieces of Customer Personal Data collected by Avius in the preceding twelve (12) months and provide the requested Customer Personal Data to Customer, free of charge, in a readily useable electronic format within ten (10) Business Days of Customer’s request.
• Avius shall delete Customer Personal Data or make such Customer Personal Data available to Customer for deletion, within ten (10) Business Days of Customer’s request.
• Avius shall not sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate orally, in writing, or by electronic or other means, Customer Personal Data to another business or third party for monetary or other valuable consideration.
• Avius shall not retain, use or disclose Customer Personal Data for any purpose other than for the specific purpose of providing the Supplier Hardware or Software performing the Services.
• Avius shall not retain, use or disclose Customer Personal Data outside of the direct business relationship between Avius and Customer.

21. Warranties

21.1 The Supplier warrants and represents that:

a) the Supplier Software and Documentation are proprietary to the Supplier and that it has the right to license all Intellectual Property Rights in and to the Supplier Software and Documentation to the Customer and to provide the Support Services to the Customer;

b) none of the Supplier Software, New Releases and Documentation supplied by the Supplier under this agreement directly or indirectly violates, misappropriates or infringes the Intellectual Property Rights of any third party or contributes to such violation, misappropriation or infringement; and

c) it is in compliance with, and will perform the Services and Support Services in compliance with, all applicable law and regulations; for avoidance of doubt, applicable law and regulations includes all data protection laws;

22. Limitation of liability

22.1 Notwithstanding anything herein to the contrary, neither party excludes or limits liability to the other party for the following acts or occurrences and shall not indemnify the other in such events:

a) fraud or fraudulent misrepresentation;

b) death or personal injury caused by negligence;

c) gross negligence or intentional misconduct;

d) any matter for which it would be unlawful for the parties to exclude liability;

e) its indemnification obligations set forth in this agreement; and

f) breach of Supplier obligations set forth in this agreement with respect to Customer Personal Data.

22.2 Neither party shall in any circumstances be liable to the other party whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:

a) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;

b) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or

23. Assignment and subcontracting

23.1 Subject to clauses 23.3 and 23.4 (with respect to Customer), neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

23.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

23.3 Either party may assign, transfer or subcontract any or all of its rights and obligations under this agreement to a member of its Group for so long as that company remains a member of the assignor’s group. The assignor shall procure that such company assigns any rights assigned to it in accordance with this clause 23.3 back to the assignor or another member of the assignor’s Group immediately before it ceases to be a member of the assignor’s Group.

23.4 Customer may assign or transfer its rights, duties, and obligations under this agreement, without approval of the Supplier, to a party that succeeds to all or substantially all of Customer’s assets or business (whether by sale, merger, operation of law or otherwise).

23.5 A party assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to clauses 23.3 or 23.4 shall be made without the proposed assignee first executing a confidentiality and non-disclosure agreement containing terms and conditions that are at least as restrictive as the confidentiality and non-disclosure terms and conditions contained in this agreement.

24. Duration

24.1 This agreement shall, subject to clause 24.2, commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 25, for the term specified in the Sales Contract.

24.2 The Support Services shall commence on the Commencement Date and shall continue until the Support Services are terminated in accordance with any of the other provisions of clause 25.

25. Termination

25.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may at any time terminate this agreement and/or the Support Services and/or the Sales Contracts with immediate effect by giving written notice to the other party if:

a) the other party fails to pay any undisputed amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

b) the other party commits a material breach of any term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;

e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; and

f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

25.2 On termination of the License, the Customer shall either return to the Supplier or, at the Supplier’s option, destroy all material copies of the Supplier Software and Documentation, and Supplier shall return to Customer, or at the Customer’s option, destroy all Customer Personal Data and upon request, certify destruction of such Customer Personal Data.

25.3 This agreement shall automatically terminate on termination or expiration of the License, but expiration or any termination of this agreement (however caused) shall have no effect on the License.

25.4 Other than as set out in this agreement, neither party shall have any further obligation to the other under this agreement after its termination or expiration.

25.5 Notwithstanding its obligations in this clause 25, if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party’s Confidential Information, it shall notify the other party in writing of such retention (if legally permitted), giving details of the documents and/or materials that it must retain.

25.6 On termination of this agreement for any reason other than Customer for cause or breach, the Customer shall immediately pay any undisputed and outstanding unpaid invoices and interest due to the Supplier. The Supplier shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Customer shall pay these invoices, provided they are undisputed, within 30 days following receipt. In the event of termination by Customer for cause or breach, Supplier shall refund to Customer any prepaid amounts.

26. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

27. Remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

28. Entire agreement

28.1 This agreement and any documents referred to into it constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.

28.2 Each party acknowledges that, in entering into this agreement and the documents referred to in it or annexed to it, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this agreement or not) other than as expressly set out in this agreement or those documents.

29. Modification

No modification of this agreement shall be effective unless it is in writing and agreed by the parties (or their authorized representatives).

30. Severance

30.1 If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.

30.2 If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.

31. Third-party rights

31.1 No person other than a party to this agreement shall have any rights to enforce any term of this agreement except for any successors, heirs or assignees of the parties taking the place of such party.

32. No partnership or agency

32.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party, except as expressly authorized by the Customer or the Supplier (as the case may be).

33. Force majeure

33.1 Neither party shall in any circumstances be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 20 days or more, the party not affected may terminate this agreement by giving 3 days’ written notice to the other party.

33.2 If termination occurs under clause 33.1, all sums paid to the Supplier by the Customer under this agreement shall be refunded to the Customer, except that the Supplier shall be entitled to payment on a quantum merit basis for all work done before termination, provided that the Supplier takes all reasonable steps to mitigate the amount due.

34. Notices

34.1 Any notice or other communication required to be given under this agreement, shall be delivered to the Customer Representative via the Customer Representative Email address as defined in the Sales Contract.

35. Dispute resolution

35.1 Any dispute which may arise between the parties concerning this agreement shall be determined as provided in this clause 35.

35.2 For the purpose of this clause 35, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute.

35.3 Unless this agreement has already been terminated by the date of the notice of dispute, the Supplier shall, in every case, continue with the Services and the Support Serviceswith all due diligence regardless of the nature of the dispute and the Customer shall continue to make payments in accordance with the Sales Contract. In addition, Customer’s right and license to the Supplier Software and Customer’s right to use the Supplier Hardware shall not be impacted by a dispute.

35.4 After service of the notice of dispute, the following procedure shall be followed by the parties (all periods specified in this clause 35.4 shall be extendable by mutual agreement):

a) within five days, the Project Manager and the Customer Representative shall meet to attempt to settle the dispute;

b) if the Project Manager and the Customer Representative are unable to reach a settlement within seven days from the date of service of the notice, the managing directors of each of the parties shall meet within the following seven days to attempt to settle the dispute;

c) if no settlement results from the meeting specified in clause 36.4(b) for the following 28 days the parties shall attempt to settle the dispute by mediation by an independent mediator, with costs to be shared equally between the parties; and

d) in the case of a dispute over purely legal issues, or where disposition of the legal issues would dispose of all other issues in dispute, the matter shall be brought before the State or Federal courts located within the State of the Customer Representative’s Address as stated in the Sales Contract, and the parties agree to co-operate in the speedy conduct of such legal proceedings.

e) if any litigation is brought between the parties relating to the enforcement of this agreement or arising out of the enforcement of this agreement, the prevailing party shall be entitled to recover its attorney’s fees, court costs and all expenses, even if not taxable as court costs (including, without limitation, all such fees, costs and expenses incident to appeals, investigative fees and computer research fees), incurred in that action or proceeding in addition to any other relief to which such party may be entitled.

36. Governing law and jurisdiction

36.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State defined in the Sales Contract under the Customer Representative’s Address.

37. Facsimile, electronic signatures, and multiple counterparts

37.1 This document may be executed in multiple counterparts each of which shall be valid and deemed to be an original. Execution of this document and transmittal by electronic means, such as e-mail, shall be valid and deemed to constitute originals of this document.

38. Insurance

38.1 Supplier shall procure and maintain, at its own expense, for the term of this Agreement and for two (2) years thereafter, the following insurance in full force and effect, each of which (except Worker’s Compensation Insurance and Employer’s Liability Insurance described in 38.1a) will be endorsed to name of Customer and its parent and affiliated companies as an additional insured for wrongful acts of Supplier and shall include a waiver of subrogation in favor of the additional insured:

a) A Workers’ Compensation and Employer’s liability Insurance policy ($100,000 per incident).

b) A Cyber insurance policy covering Professional Liability, Employee Crime and Cyber Crime and Network Security & privacy liability (up to $1,200,000 limit varies by type of claim).

c) A Professional indemnity policy (up to $6,000,000 limit varies by type of claim).

d) A General liability policy covering Employers, Public, and Products (up to $6,000,000 limit varies by type of claim).

39. Indemnity

39.1 Supplier shall indemnify, defend and hold harmless Customer, its officers, directors, employees, agents, affiliates, successors and assigns (“Customer Indemnitees”) from any claims, liability, damage, loss or expense arising out of or resulting from: (a) the acts or omissions of Supplier or its contractors in the performance of this Agreement or any breach hereof (including without limitation Suppliers obligations with respect to Customer Personal Data); and (b) the Supplier or its contractors’ negligence or willful misconduct with respect to the performance or nonperformance of their duties or obligations under this Agreement, including, but not limited to, injury to or death of any person (including employees), damage to or destruction of property, payment of taxes, payment of any compensation to Supplier’s employees, and reasonable attorneys’ fees and expenses.

40. Company ownership

40.1 AVIUS AMERICA, LLC is 100% owned by AVIUS LTD. AVIUS LTD is a UK registered company (Company Number: 5781390) with the registered address of 1^st Floor Dean Park House, 8-10 Dean Park Cresent, Bournemouth, Dorset, BH1 1HL, England. AVIUS AMERICA, LLC are a reseller of AVIUS LTD’s software, with the intellectual property rights being the sole property of AVIUS LTD. AVIUS LTD falls under the jurisdiction of the UK.

Avius America LLC Terms and Conditions v.9.0