Avior Privacy & Terms

Avior Terms of Service

1. Service(s)

Only after We have confirmed an Order, during the Subscription Term, We agree to provide Customer with the Subscription Service(s) and Support Service(s) as set forth in each Order in accordance with these Terms. Support Service(s) are included as a part of the Subscription Service(s) and will be provided in accordance with the support level agreement.

2. Subscription Service(s)

Pursuant to the terms of this Agreement and the applicable Subscription Order, We shall provide Customer and User(s) with subscription based access to the Software as follows:

2.1. Service(s) Access

After Our completion of any customization, implementation or configuration services as set forth in an order for Professional Services, commencing on the start date set forth in the applicable Subscription Order (the “Start Date”) and subject to the terms of the Agreement, We grant to Customer and its Users, a limited, non-exclusive, and revocable right to access and use the Subscription Service(s) for Your internal business purposes.

2.2. Users

Customer is responsible for each of its Users’ acts and omissions and remains liable to Us for any User’s (including an authorized third party acting as a User on Customer’s behalf) breach of these Terms.

2.3. New Features

Over the course of the Subscription Term We may introduce new features, functionality, software, or user types, that are only available under a different pricing model or on a version of Software other than the version Customer currently accesses (“New Features”). In the event Customer desires to purchase New Features We reserve the right, in its sole discretion, to update Customer’s account, pricing model, or Software version to facilitate the provision of such New Features.

3. Security of Customer Data

3.1. Data Processing and Protection

We shall process all customer data in accordance with the Privacy Policy, which is hereby incorporated by reference. By entering into this Agreement, Customer agrees to be bound by all the terms and conditions contained in the Privacy Policy.

3.2. Customer Data

Unless otherwise agreed in writing, You are responsible for the accuracy, truthfulness, consistency, completeness, and any output from the Software, and consents to use of all Customer Data in accordance with these Terms, and We will neither have the responsibility to review, nor any liability as to the accuracy of, any information or content posted by Customer or its Users.

3.3. Security

As a part of the Service(s) We shall maintain appropriate administrative, physical, and technical safeguards for the security, confidentiality and integrity of any data or information inputted, edited, authored, generated, managed, or otherwise submitted by Customer or its Users into Customer’s subscription account (“Customer Data”). Such measures and safeguards include, but shall not be limited to, measures for preventing access, use, modification or disclosure of personal and confidential data by Us or Our employees or agents except (a) for providing Services and prevent or address service or technical problems, (b) to abide by the law or (c) on the basis of Customer's express permit.

4. Fees and Payment

Customer shall pay the fees associated with the applicable Services in an Order (“Fees”) as set forth below.

4.1. Invoicing

Except as otherwise specified in the applicable Order: (a) Customer shall pay all Subscription Fees at the beginning of the Subscription Term on a monthly basis no later than ten (10) days from invoice date, (b) if Customer has not paid all Fees in full within ten (10) days from invoice date, Avior has the right to suspend provision of Services until full payment are paid by Customer.

4.2. Fee Payment

Except as otherwise specified in an Order We only accept payment using ACH credit. Prepaid tax services fees are due at the beginning of a month and covers services performed during that month to prepare taxes or other services for previous month. Fee payments are nonrefundable except that if we terminate the Agreement, we will refund you a pro rata portion of any up-front fee paid in connection with any previously designated services. Fees for our cloud applications will apply regardless of whether the application is not used, prevented, delayed, or blocked due to reasons outside of our control.

4.3. Fee Increases

Except as otherwise specified in an Order We may increase Fees for the Subscription Services not more than twice in each twelve (12) month period upon thirty (30) days prior written notice to Customer. Customer will only be responsible for increased Subscription Service Fees for those Subscription Terms after the Subscription Term in which Customer received such price increase notice.

5. Third Party Penalties and Late Fees

5.1. Penalties

Avior is not responsible for customer penalties, fees, or loss of license imposed by a third party or government jurisdiction.

6. Termination

6.1. Term

These Terms begin on the Effective Date above, and shall continue until all Orders associated with these Terms have expired or have been terminated.

6.2. Subscription Term

Except as otherwise specified in a Subscription Order, the Subscription Services will: (a) begin on the Start Date in each applicable Subscription Order and remain in effect for the period specified therein (the “Subscription Term”). Avior shall automatically renew services unless Customer provided Us with a written notice to cancel Subscription Services.

6.3. Termination

Customer may terminate these Terms or an Order without cause upon thirty (30) days written notice. If customer terminates the Agreement before the expiration of the Subscription Term without cause, Customer will not receive a refund for any prepaid Subscription Services Fees, but Avior will refund any prepaid Fees for Professional Services not completed as of the effective date of termination.

6.4. Effect of Termination

Upon expiration or termination of all Subscription Orders, Customer’s rights granted under these Terms shall terminate and Customer and its Users shall no longer have access to the Services. 7. Confidentiality

7.1. Confidential Information

In connection with these Terms, each of the parties may disclose to the other party information that relates to the disclosing party’s or disclosing party’s customers’ business operations, financial condition, customers, products, services, or technical knowledge (“Confidential Information”). Unless otherwise specifically agreed in writing, each party agrees that: (a) all information communicated to it by the other in connection with the Agreement and identified as confidential, (b) any information exchanged between the parties in connection with Customer’s purchase of any additional Services, and (c) all information communicated to it that reasonably should have been understood by the receiving party, because of confidentiality, descriptions or similar legends, the circumstances of disclosure or the nature of the information itself, to be confidential to the disclosing party, will be Confidential Information and will be deemed to have been received in confidence and will be used only for purposes of these Terms. Our Confidential Information includes the Software, Services, Fees, the terms of the Agreement, development plans, and any security specifications, reports or assessments related to the Software or Us. Customer Confidential Information includes Customer Data.

7.2. Unauthorized Access

Each party will: (a) notify the other party promptly of any material unauthorized possession, use, or knowledge of the other party’s Confidential Information by any person that may become known to such party, (b) promptly furnish to the other party details of the unauthorized possession, use, or knowledge, or attempt thereof, and use reasonable efforts to assist the other party in investigating or preventing the recurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information, (c) use reasonable efforts to cooperate with the other party in any litigation and investigation against third parties deemed necessary by the other party to protect its proprietary rights, and (d) promptly use reasonable efforts to prevent a recurrence of any such unauthorized possession, use, or knowledge of Confidential Information.

8. Ownership

8.1. Our Ownership

We retain all ownership of and title to, and all intellectual property rights in, the Software, Services, and all software, equipment, processes, facilities, and materials utilized by or on behalf of Us to provide the same, including all patents, trademarks, copyrights, trade secrets, and other property or intellectual property rights. Customer acknowledges and agrees that We shall own all right, title and interest in and to any modifications, derivative works, changes, expansions or improvements to the Software, and Services, without any other or subordinate right whatsoever being held by Customer. Customer shall acquire no rights therein other than those limited rights specifically conferred by these Terms. Customer may not create derivative works based upon the Software, or Services in whole or in part, or develop or request third parties to develop or modify any software based on ideas, processes, or materials incorporated therein. All rights related to the Software, or Services that are not expressly granted to Customer under the Agreement are reserved by Us. Except if expressly permitted by Us in writing these Terms does not grant the Customer any right to use Our trademarks or any other Avior brand elements.

8.2. Customer Ownership

Except for a license granted to Us to use Customer Data solely for the purpose of performing the Services, We acquire no right, title, or interest from Customer or its Users to Customer Data, including any intellectual property rights therein. Subject to these Terms, Customer, its Users and each of its Affiliates hereby grant Us a limited, royalty-free, fully-paid up, non-exclusive and non-transferable license to process Customer Data solely as necessary to provide the Services for Customer’s and such Affiliates’ benefit as provided in these Terms for so long as Customer or any User uploads or stores such Customer Data in the Software.

9. Warranty Disclaimers

9.1. Customer Acknowledgements

Customer accepts responsibility for selection of the Services to achieve Customer’s intended results. Customer is solely responsible for obtaining all necessary rights and consents to enter Customer Data into the Software and hereby warrants that providing Customer Data to Us under these Terms will not violate or infringe the rights of any third party.

9.2. Warranty Disclaimer

EXCEPT FOR WHAT SPECIFICALLY SET FORTH IN THESE TERMS, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS.” AVIOR, ITS LICENSORS, AND SERVICE PROVIDERS DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND AVIOR EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES. We do not warrant that the Software or Subscription Services: (a) will be uninterrupted or error free or (b) will operate in combination with other software unless such software is expressly approved or recommended by Us. Customer acknowledges and agrees that We and Our licensors are not responsible for: (i) the accuracy or integrity of any Customer Data, (ii) delivery of services or connectivity provided by third parties to Customer and its Users, or (iii) any loss or corruption of Customer Data that occurs as a result of transmitting or receiving Customer Data or viruses due to Customer’s, or its Users’, connection and access to the internet.

10. Intellectual Property Rights

10.1. Ownership of IPR

All rights, title and interest in and to all Our patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights in or related to the Service(s) shall belong to and remain exclusively with Us. We are the owner or the licensee of all Intellectual Property Rights in Our Websites, and the content or material published on it. You must not use any part of the content on Our Websites for commercial purposes without obtaining a license to do so from Us or Our licensors. Further, We claim no intellectual property rights over the content You upload or provide to the Service(s).

11. Indemnification

11.1. Indemnification by Us

We will (a) defend Customer from and against any claim by a third party alleging that the Software, when used as authorized under these Terms, directly infringes such third party’s patents, copyrights, or trademarks, and (b) in relation to such claim, Avior indemnify and hold harmless Customer from any damages and costs finally awarded or agreed to in settlement by Avior (including reasonable attorneys’ fees).

11.2. Indemnification by Customer

Customer, on behalf of itself and its agents, will indemnify and hold harmless Us and Our Affiliates, and their officers, directors, employees, agents, consultants and contractors (a “Avior Indemnity”) from and against any claim, lawsuit or cause of action (including attorney fees and costs) brought by a third party against Our Indemnity to the extent that it is (a) based on a claim regarding the access to the Software or Services in violation of these Terms, an Order or the Documentation; (b) based on a breach of any express warranty contained in these Terms; or (c) in violation of any third party intellectual property right or confidential information. Except to the extent that Customer fails to defend Us as required herein, Customer shall have the right to control the defense of all such claims, lawsuits, and other proceedings. Except to the extent that Customer fails to defend Us as required herein, We shall not settle any such claim, lawsuit, or proceeding without Customer's prior approval, and Customer shall have no liability for any such unapproved settlement so made.

12. Limitation of Liability

12.1. Avior Ownership

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE SOFTWARE, SOLUTION, SERVICES, OR THE PERFORMANCE OR NONPERFORMANCE OF SERVICES OR ANY ORDER, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, or (B) ANY LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, ARISING OUT OF CUSTOMER’S MISUSE OF, OR INABILITY TO USE, THE SOFTWARE IN ACCORDANCE WITH THE DOCUMENTATION, OR THE PERFORMANCE OR NONPERFORMANCE OF THE SOFTWARE OR SERVICES. OUR MAXIMUM LIABILITY UNDER THE AGREEMENT IS LIMITED TO THE FEES PAID BY CUSTOMER UNDER THE APPLICABLE ORDER TO WHICH THE CLAIM RELATES DURING THE ONE (1) MONTH PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.

13. Miscellaneous

13.1. Relationship of the Parties

The parties agree they are independent parties. Neither party shall be considered to be a partner, joint venture, employer, or employee of the other under the Agreement. The Agreement creates no agency in either party, and neither party has any authority whatsoever to bind the other party in any transaction or make any representations on behalf of the other party.

13.2. Assignment

Neither party may assign these Terms, nor any of its interest herein, without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed; provided, however, that no such prior approval shall be required for an assignment in connection with a sale of all or substantially all of a party’s business related to the subject of these Terms or any merger, sale of a controlling interest, or other change of control of such party. In the event of assignment as mentioned in the previous sentence, the assigning party shall provide written notice as soon as is reasonably practicable. These Terms apply to and binds the permitted successors and assigns of the parties.

13.3. Governing Law

These Terms shall be construed in accordance with the laws of the United States and the State of Texas. The parties agree that all actions or proceedings arising in connection with these Terms shall be tried and litigated exclusively in the state or federal (if permitted by law and a party elects to file an action in federal court) courts located in Dallas County, Texas. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, these Terms in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non-convenient or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section. Any action of any kind brought by you and arising out of or in any way connected with these Terms must be commenced within one (1) year of the date upon which the cause of action accrued.

13.4. Force Majeure

Neither party will be in default nor otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond its reasonable control, including any act of God or the common enemy or earthquakes, floods, fires, epidemics, riots, or failures or delays in transportation or communications (each, a “Force Majeure Event”). The parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of these Terms.

13.5. Injunctive Relief

Each party acknowledges and agrees that a breach or threatened breach by either party of its obligations under Section 3 will cause immediate and irreparable harm to the non- breaching party for which monetary damages may not constitute an adequate remedy. Accordingly, the breaching party acknowledges and agrees that the non-breaching party shall be entitled to injunctive relief for the breaching party’s obligations herein, without the non- breaching party having to prove actual damages and without the posting of bond or other security. Such remedy shall not be deemed to be the exclusive remedy for the breaching party’s breach of these Terms, but shall be in addition to all other remedies available to the non- breaching party at law or in equity.

13.6. Entire Agreement

These Terms supersede all previous discussions, negotiations, understandings, and agreements between the parties with respect to its subject, including any non-disclosure agreements and/or obligations which will be expressly superseded in their entirety by these Terms. No oral statements or material not specifically incorporated herein will be of any force and effect. No changes in or additions to these Terms and Conditions will be recognized unless incorporated herein by amendment and signed by duly authorized representatives of both parties. The application of Customer’s terms and conditions in any purchase order are hereby expressly excluded and objected to by Us. If there is any inconsistency between these Terms and the terms of any Orders or other documents referenced in these Terms or an Order, these Terms shall have priority and then the express terms of an Order.

13.7. Waiver

The waiver by either party of a breach or violation of any provision of these Terms will not operate as, or be construed to be, a waiver of any subsequent breach of the same or any other provision hereof.

13.8. Unenforceability

In the event any provision of these Terms is held to be unenforceable for any reason, the unenforceability thereof will not affect the remainder of the Terms. With respect to any unenforceable provision, the applicable arbitrator or court shall deem the provision modified to the extent necessary, in such adjudicator’s opinion, to render such term or provision enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties set forth herein.

14. Definitions

14. Supplemental Terms