These terms of service (the “Agreement”) govern the access to and use of the Aheeva cloud-based contact center software-as-a-service (the “Aheeva Services”) provided by Aheeva Technology, Inc. (“Aheeva”) and content or services provided on Aheeva’s websites. For more information about the Aheeva Services, please visit Aheeva’s website at https://www.aheeva.com/ (the “Site”).
This Agreement applies to all Subscribers, End Users, and Agents using the Aheeva Services.
Aheeva reserves the right, in its sole discretion, to modify or update this Agreement from time to time, and Aheeva will notify you of any changes by posting a notice on the Site when it does so. Your continued use of the Services following the posting of any changes to the Agreement will mean you accept such changes.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS.
In this Agreement, with initial letters capitalized, these terms have the following meaning:
“Account” means any accounts or instances created by, or on behalf of, Subscriber or its Affiliates within the Aheeva Services.
“Aheeva Services” means the Aheeva cloud-based contact center software-as-a-service provided by Aheeva, related modules and websites hosted by Aheeva and subscribed for by the Subscriber, and all Documentation, texts, drawings, images, designs, photographs, charts, graphs, audiovisual files, applications, programs, search engines, multimedia components, and databases in respect thereof.
“Agent(s)” means an individual who handles incoming or outgoing customer communications, each identified through distinct Credentials in the Aheeva Services, and for whom Subscriber have purchased access to the Aheeva Services.
“Authorized Partner” means a third-party reseller or distributor who has been authorized by Aheeva to resell, distribute, or provide Aheeva Services or Professional Services.
“Authorized User(s)” means Subscriber’s employees, Agents, and independent contractors working for or on behalf of Subscriber in the ordinary course of Subscriber’s business for whom access to the Aheeva Services have been purchased, regardless of actual usage, pursuant to this MSA.
“Credentials” means a unique username and associated password provisioned to an individual to allow them access the Aheeva Services.
“Confidential Information” means all non-public, confidential, and/or proprietary information provided by the Parties or accessed in connection with the Aheeva Services, whether such information is disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not it is marked, designated, or otherwise identified as “confidential”.
“Content” means the text, graphics, logos, button icons, images, electronic art, animations, multimedia clips, digital downloads, data compilations, algorithms, software, Documentation, tools, and other materials and their organization and presentation, in each case provided, owned, or licensed by Aheeva.
“Documentation” means all online information, written manuals, reference documents, and questionnaires relating to the Aheeva System and/or otherwise provided to Subscriber by Aheeva in respect of the use of the Aheeva Services.
“Force Majeure Event” means, with respect to a party, any event or circumstance, regardless of whether it was foreseeable, that was not caused by that party and that prevents that party from complying with any of its obligations under this agreement, except that a force majeure event will not include a strike or labor unrest that affects only one party, an increase in prices, or a change in law.
“Intellectual Property Rights” means all intellectual property rights, including patents, trade secrets, trademarks, service marks, trade or business names, copyrights and other rights in works of authorship (including rights in computer software), moral and artists’ rights, design rights, domain names, know-how, database rights and semi-conductor topography rights, whether any of the foregoing are registered or unregistered and all rights or forms of protection of a similar nature in any country.
“Losses” means all losses, liabilities, claims, damages, costs, charges or expenses (including legal costs and disbursements on a full indemnity basis), and damages (including any damage to the reputation or goodwill of Aheeva).
“Personal Information” means, in addition to any definition for any similar term (e.g., “personal data” or “personally identifiable information” or “PII”) provided by applicable law, any information which, on its own or when reasonably combined with other available information, relates to an identifiable individual.
“Professional Services” are professional services rendered under the scope of an SOW.
“Pre-release Services” means Aheeva Services or functionalities that is pre-release.
“Order Form” means Aheeva’s services online ordering form or process completed, executed, or approved by Subscriber with respect to Subscriber’s subscription to the Aheeva Services, which may detail, among other things, the number of contact center Agents authorized to use the Aheeva Services under the aforementioned subscription.
“Service Term(s)” means the period of time identified in the service Order Form, beginning on the Start Date, for which Subscriber is purchasing and will be granted access to the Aheeva Services (the “Initial Term”, and any renewal thereof, each, a “Renewal Term”), as applicable.
“SOW” means a document governed by this Agreement describing any Professional Services.
“Subscriber(s)” refers to the person, company, enterprise, or customer whose name is stated on the Order Form for a subscription to the Aheeva Services.
“Subscriber Data” means any electronic data, information or material provided or submitted by or for Subscriber or its Authorized Users into the Aheeva Services, excluding Third-Party Content and Third–Party Products; provided, however, that Subscriber Data does not include: Usage Data or Subscriber Data that is aggregated and de-identified.
“Third-Party Product(s)” means a software application or software functionality that interoperates with the Aheeva Services, and that is not an Aheeva product.
“Third-Party Content” means information obtained by Aheeva from publicly available sources or third-party content providers and made available to Subscriber through the Aheeva Services.
“Taxes” means taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.
“Usage Data” means any information or data associated with or collected from Subscriber and each Authorized User relating to the usage or results of the Aheeva Services.
- License Grant
- All Content accessible through the Aheeva Services is the property of Aheeva, or its affiliates, agents, or licensors, as applicable, and is protected by copyright laws.
- Subject to Subscriber’s compliance with this Agreement, Aheeva grants Subscriber a limited, non-exclusive, non-transferrable, non-sublicensable license to access and use (and to permit the Authorized Users to access and use) the Aheeva Services and Content solely for the Authorized Use as defined in the Aheeva’s Authorized Use Policy https://www.aheeva.com/authorized-use-policy/, and in accordance with all Aheeva policies posted on its Site, as such policies may be updated by Aheeva from time to time. All other use of the Aheeva Services or Content is prohibited.
- Except as expressly provided in this Agreement, any reproduction, retransmission, distribution, sales, republication, modification, translation of or creation of derivative works based on the Aheeva Services and/or Content, in whole or in part, and any decompilation, disassembly, reverse engineering, hacking or other exploitation of the Aheeva Services is strictly prohibited. Subscriber acquires no rights or licenses to the Aheeva Services other than the limited right to use the Aheeva Services in accordance with this Agreement. All rights not expressly granted in this Agreement are reserved for Aheeva.
- Subscriber grants Aheeva and its affiliates a limited, revocable, non-exclusive license to use Subscriber’s trade name and logo as necessary to perform its obligations under this Agreement and in the marketing or promotion of the Aheeva Services and services provided by Aheeva.
- ACCESSING THE SERVICES
- Subscriber will need an Aheeva Services account to access and use the Aheeva Services. Subscriber is responsible for maintaining the confidentiality of your account login credentials and for all access to and use of the Aheeva Services through such login credentials (whether or not authorized by Subscriber). Subscriber may not share the account with anyone, and agrees to immediately notify Aheeva of any unauthorized use or disclosure of the login credentials.
- By accessing and using the Aheeva Services, Subscriber certifies that
- Subscriber have reached the age of majority in your jurisdiction of residence;
- any information Subscriber provides to Aheeva is and will be true, accurate, current, and complete;
- Subscriber will keep all information up to date.
- Subscriber acknowledges and agrees that Aheeva may deny access and/or use privileges to any user of the Aheeva Services at any time and in its sole discretion, in addition to such other remedies as Aheeva may have, including if Aheeva has reason to believe an account was created with false information or otherwise used for fraudulent purposes or if account security has been compromised.
- Aheeva Support
Aheeva will provide applicable Aheeva standard support for purchased Aheeva Services to Subscriber at no additional charge, and/or upgraded support if purchased. A support ticket may only be opened by Subscriber’s administrators.Before the set go-live date, all Subscriber’s Authorized Users must have undergone an Aheeva training based on their role (agent, supervisor, and administrator).
- subscription to aheeva services
- Aheeva Services are purchased as subscriptions for each Authorized User for the duration of the Service Term.
- Subscriptions for additional Authorized Users to Aheeva Services may be added during the Service Term (and shall be subject to the terms of this Agreement) by placing an order at Aheeva’s online portal, prorated for the portion of that Service Term remaining at the time the subscriptions are added. All added subscriptions will be co-terminus with the underlying subscriptions.
- The number of subscriptions for Authorized Users may be decreased and the reduction will only become effective at the end of the applicable Service Term.
- SUBSCRIBER responsibility
- Subscriber and all Authorized Users must comply with all rules set forth in the Aheeva Authorized Use Policy available at https://www.aheeva.com/authorized-use-policy/, and any applicable acceptable use or similar policies imposed by the applicable telco carrier.
- Subscriber’s shall
- comply with this Agreement, the Documentation, and the service Order Forms,
- ensure that its Authorized Users comply with this Agreement
- be responsible for the accuracy, quality and legality of Subscriber Data, the means by which Subscriber data is acquired, the use of Subscriber Data with the Aheeva Services, and the interoperation of any Third-Party Product with which Subscriber uses the Aheeva Services or Third-Party Content,
- use reasonable efforts to prevent unauthorized access to or use of the Aheeva Services and Third-Party Content, and notify Aheeva promptly of any such incident
- use the Services and Third-Party Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations,
- comply with the terms of service of any Third-Party Product with which Subscriber uses the Aheeva Services or Third-Party Content,
- ensure that Authorized Users use unique access credentials, and that such credentials are not shared or used by more than one Authorized User,
- take all reasonable precautions to prevent unauthorized access to or use of the Aheeva Services and shall notify Aheeva promptly of any such incident,
- be responsible for any unauthorized usage of its credentials,
- use the Aheeva Services only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations,
- comply with the terms of service of any Third-Party Product with which Subscriber uses the Aheeva Services, and
- be responsible for the acquisition, installation, and maintenance of any hardware, software and other equipment deemed necessary for Authorized Users to connect to, access, and use the Aheeva Services, and accept that such equipment, whether software or hardware, will be solely at Subscriber’s expense.
- removal of Third-party content and third-party product
Subscriber will promptly remove, modify and/or disable Third–Party Content or a Third–Party Product if Subscriber receives notice that Third–Party Content or a Third–Party Product is violating applicable law or third-party rights. Aheeva reserves the right to disable the applicable Third–Party Content, Services and/or Third–Party Product if Subscriber does not take required action in accordance with the above, or if in Aheeva’s judgment violation is likely to reoccur.
Subscriber shall confirm such deletion and discontinuance of use in writing, and Aheeva shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Aheeva is required by any third-party rights holder to remove Third-Party Content, or receives information that Third–Party Content provided to Subscriber may violate applicable law or third-party rights, Aheeva may discontinue Subscriber’s access to Third–Party Content through the Aheeva Services.
- Subscriber data
- Subscriber acknowledges that Aheeva is not responsible for the creation, content, or use of Subscriber data by Subscriber or any third pary.
- Subscriber will own all Subscriber Data, and Aheeva will not access, process, or otherwise use Subscriber Data other than as necessary to allow or facilitate the use of the Aheeva Services or as specified in this Agreement.
- Subscriber acknowledges and agrees that Aheeva may use, reproduce, sell, publicize, or otherwise exploit anonymous, aggregate data that is derived from Subscriber Data (“Anonymous Aggregate Usage Data”) in any way, in its sole discretion. Subscriber grants Aheeva worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sub-licensable license to use Subscriber Data to generate Anonymous Aggregate Usage Data.
- Subscriber acknowledges and agrees that Aheeva may permanently erase Subscriber Data if Subscriber violates this Agreement, or if Subscriber accounts are inactive, suspended, or closed for thirty (30) consecutive days or more without restoration. Subscriber acknowledges that such Subscriber Data cannot be recovered once it has been permanently deleted.
- Aheeva is not required to keep any Subscriber Data or Usage Data for more than thirty (30) days after the termination of this Agreement (the “Export Period”). Subscriber acknowledges that such data cannot be recovered once it has been permanently deleted. Aheeva has the right, but not the obligation, to copy and store the data for backup purposes. Subscriber may export the Subscriber Data and Usage Data during the Export Period.
- Aheeva will maintain appropriate measures for protection of the security, confidentiality, and integrity of Subscriber Data and to prevent unauthorized access to or disclosure of Subscriber Data (other than by Subscriber or Authorized Users).
- License by subscriber to Aheeva
- Subscriber grants Aheeva, its affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Third-Party Product and program code created by or for Subscriber using the Aheeva Services or for use by Subscriber with the Aheeva Services, Subscriber Data, and Usage Data each as appropriate for Aheeva to provide and ensure proper operation of the Aheeva Services and associated systems in accordance with this Agreement. If Subscriber chooses to uses a Third-Party Product with the Aheeva Services, Subscriber grants Aheeva permission to allow the Third-Party Product and its provider to access Subscriber Data and Usage Data and information about Subscriber’s usage of the Third-Party Product as appropriate for the interoperation of that Third-Party Product with the Aheeva Services. Subject to the limited licenses granted herein, Aheeva acquires no right, title or interest from Subscriber or its licensors under this Agreement in or to any Subscriber Data, Third-Party Product, or such program code.
- In connection with Subscriber’s use of the Aheeva Services, Subscriber grants Aheeva, its affiliates and applicable contractors a worldwide, perpetual, irrevocable, royalty free license to use and incorporate into its services any information or materials such as feedback, questions, comments, suggestions for features, functionalities, corrections or the like (collectively, “Feedback”) provided by Subscriber or Authorized Users. To the extent that Feedback does not contain information that identifies Subscriber, or otherwise cannot reasonably be used to identify Subscriber (including information or materials that Aheeva has de-identified), such Feedback shall be the exclusive property of Aheeva, and Subscriber unconditionally waives all “moral rights” that it may now have or have in the future relating to such Feedback.
- Professional services
If Subscriber purchases Professional Services from Aheeva:
- Aheeva will perform Professional Services on a time and materials basis unless otherwise stated in a SOW or Order Form,
- Aheeva shall control how the Professional Services are performed,
- Aheeva reserves the right to make all staffing decisions in its sole and reasonable discretion, and
- Subscriber shall make available at no charge all technical data and other assistance as reasonably requested by Aheeva in the performance of Professional Services.
- Pre-release services
Occasionally Aheeva may make available Pre-Release Services at Aheeva’s discretion. Use of the Pre-Release Services is subject to the following:
- Aheeva may decide to make Pre-Release Services available only to selected subscribers at Aheeva’s sole discretion in exchange for their thoughts and feedback. In return, Subscriber agrees to (i) use all aspect of the product, (ii) actively provide thoughts and feedback, (iii) allow feedback to be used in future marketing material for in scope product or feature, and (iv) abide by the terms of the Master Subscription Agreement.
- Subscriber has the option to opt-in or decline the use of Pre-Release Services
- Aheeva holds the right to discontinue Pre-Release Services at any time in its sole discretion.
- By participating in and using Pre-Release Services, Subscriber acknowledges that Pre-Release Services may contain bugs, errors, defects, or harmful components. Accordingly, Aheeva makes no warranties of any kind with respect to the Pre-Release Services, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Notwithstanding anything in this agreement to the contrary or any published documentation that states otherwise, Aheeva does not warrant that the Pre-Release Services: (a) will be error-free, (b) will meet any specified service level, or (c) will operate without interruptions or downtime. Aheeva shall have no liability whatsoever for any harm or damage arising out of or in connection with Pre-Release Services.
- Third-party product
- Aheeva may make Third-Party Products available to Subscriber. If Subscriber decides to use a Third-Party Product, then Subscriber must accept the Third-Party Products provider’s terms of service. Aheeva is not responsible for that Third-Party Product, the content therein, or any claims that Customer or any other party may have relating to that Third-Party Product or Customer’s use of that Third-Party Product. Subscriber acknowledges that
- Subscriber is purchasing the license to each Third-Party Product from the relevant Third-Party Product provider;
- Aheeva is acting as agent for the Third-Party Product provider in providing each such Third-Party Product;
- Aheeva is not a party to the license between Subscriber and the Third-Party Product provider with respect to that Third-Party Product; and
- Third-Party Product provider is solely responsible for that Third-Party Product, the content therein, or any claims that Subscriber or any other party may have relating to that Third-Party Product or Subscriber’s use of that Third-Party Product.Subscriber acknowledges and agrees that Aheeva and its affiliates are third-party beneficiaries of the agreement between Subscriber and the Third-Party Product provider for each Third-Party Product, and that Aheeva and its affiliates have the right to enforce such license each Third-Party Product against Subscriber as a third-party beneficiary thereof. The Third-Party Product provider’s terms of service shall not modify or otherwise supersede the terms and conditions of this Agreement. By purchasing a Third-Party Product, Subscriber grants Aheeva permission to share Subscriber Data with the Third-Party Product provider as necessary in order to provide Subscriber the Third-Party Product.
- The Aheeva Services may contain features designed to interoperate with Third-Party Products. Aheeva does not guarantee the continued availability of such Aheeva Services features and may cease providing them without entitling Subscriber to any compensation if, for example and without limitation, a Third-Party Product provider ceases to make the Third-Party Product available or accessible for integration with the Aheeva Services features in a manner acceptable to Aheeva.
- Aheeva makes no representations, endorsements, guarantees, or any warranties, with respect to Third-Party Products, including but not limited to the continuing availability of such Third-Party Products or the continuing ability to use and integrate the Aheeva Services with such Third-Party Products. Aheeva is not responsible for any disclosure, modification or deletion of Subscriber Data caused by, or resulting from access by, a Third-Party Product or its provider. Aheeva does not warrant or support Third-Party Products, whether or not they are designated by Aheeva as “certified” or otherwise, unless expressly provided otherwise in an Order Form.
- License Fees. Beginning on the Start Date identified on the Order Form, Subscriber shall pay Aheeva, or its Authorized Partner, as applicable, all fees identified in an Order Form (“License Fees”). Except as otherwise stated in the Order Form, (i) License Fees are based on the provision of Aheeva Services and Third-Party Product subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, (iii) quantities purchased cannot be decreased during the Service Term, (iv) Subscriber shall pay Aheeva the License Fees in advance at the beginning of Renewal Term, and (v) the License Fees shall increase by the amount specified on the Order Form as the “Renewal Uplift” at the beginning of each Renewal Term.
- Professional Services Fees. Subscriber shall pay Aheeva, or its Authorized Partner, if applicable, the fees for the Professional Services identified in a SOW or Order Form (“Professional Services Fees”) in the manner provided in the SOW or Order Form, subject to any other terms and conditions contained in this Agreement.
- Usage Fees. Subscriber will be charged usage fees based on Subscriber’s use of the Aheeva Services, as applicable, including but not limited to minutes for calls, phone number line access fees, connection fees, SMS fees, transcription fees, and other variable one-time or recurring service charges (“Usage Fees”). Subscriber must pre-pay Usage Fees in advance. Subscriber agrees to pay all Usage Fees billed by Aheeva. Funds for pre-paid Usage Fees cannot be applied toward License Fees or Professional Services Fees. Funds for pre-paid Usage Fees can be used across multiple consecutive Service terms. Pre-paid Usage Fees cannot be reimbursed if Subscriber does not renew its subscription to Aheeva Services for a following Service Term.
Funds must be always present in the Subscriber’s pre-paid Usage Fees account. When the balance decreases and reaches a pre-paid replenish trigger (RT) set by Aheeva, Aheeva will automatically recharge the Subscriber’s pre-paid account to reach a pre-paid target balance (TB) set by Aheeva using the Subscriber’s payment methods. At no time can the Target Balance be less than $200 USD and the replenish trigger (RT) be less than $50 USD.
If the Subscriber’s pre-paid Usage Fees account balance is zero when Subscriber incurs Usage Fees charges, Aheeva will apply the charges on Subscriber’s payment methods and will suspend services described in section 13.3 until the outstanding charge is paid in full and the pre-paid Usage Fees account balance is replenished to reach the pre-paid target balance (TB). Subscriber shall pay all invoices for variable one-time or recurring service charges no later than seven (7) days after the invoice date.
- Payment Terms. Unless otherwise provided on an Order Form, Subscriber shall pay all License Fees in advance at the beginning of the applicable term, and pre-pay the Usage Fees as per section13.3. Aheeva may immediately suspend, restrict, or terminate the Subscriber’s access to the Aheeva Services, without notice or liability, if Subscriber fails to pay any portion of the License Fees or Usage Fees when due, until the outstanding fee is paid in full. In addition, Aheeva may add interest charges to any past-due amounts at a rate equal to the maximum rate allowed by law, prorated for each day payment is past due. Service suspension or cancellation will result in Subscriber’s loss of the phone numbers associated with the Aheeva Services. Acceptance of late or partial payments (even if marked “Paid in Full” or with other restrictions) shall not waive any of the rights of Aheeva to collect the full amount of the service fee. Subscriber agrees to reimburse Aheeva for reasonable attorneys’ fees, and any other costs associated with collecting delinquent or dishonored payments. Aheeva may assess reinstallation charges against Customer in the event Aheeva suspends, restricts, or terminates the Subscriber’s access to Aheeva Services as a result of Subscriber’s nonpayment or breach of this Agreement.
- Taxes. Unless otherwise stated on an Oder Form, Aheeva’s fees do not include any Taxes. Subscriber is responsible for paying all Taxes associated with its purchases hereunder.
- Accelerated Payment. If any charge or fees owed by Subscriber under this or any other agreement for Aheeva Services is thirty (30) days or more overdue, Aheeva may, without limiting its other rights and remedies, accelerate Subscriber’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable.
- During the Term, Aheeva and/or Subscriber (the “Parties”) may provide the other Party with (or the other Party may obtain access to) Confidential Information. For the avoidance of doubt, this Agreement and all pricing and other terms contained in any Order Form are Confidential Information of Aheeva.
- The receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third-party (except its affiliates, directors, officers, employees, agents, independent contractors, service providers, and representatives who have a need to know such Confidential Information (collectively, “Representatives”)) without the prior written consent of the disclosing Party. The receiving Party shall be responsible for a breach by its Representatives of the confidentiality and non-disclosure provisions in this Agreement. The receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder.
- The receiving Party may disclose Confidential Information as required by law or court order; provided that the receiving Party provides, to the maximum extent permitted by law, the disclosing Party with prompt written notice thereof and uses the receiving Party’s commercially reasonable efforts to limit disclosure. At any time, upon the disclosing Party’s written request, the receiving Party shall return to the disclosing Party or destroy (at the receiving Party’s option) all of disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof; provided that Confidential Information may be retained by the receiving Party to the extent (i) required to comply with bona fide record retention requirements, (ii) it has been backed up pursuant to automatic back-up procedures provided the information will be destroyed if it is ever restored, or (iii) required to comply with applicable law.
- The obligations in this section 14 shall not apply to any information that: (a) is made generally available to the public without breach of this Agreement; (b) is developed by the receiving Party independently from and without reference to the Confidential Information; (c) is disclosed to the receiving Party by a third-party without any obligations of confidentiality; or (d) was in the receiving Party’s lawful possession prior to the disclosure and was not obtained by the receiving Party either directly or indirectly from the disclosing Party.
- Nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in, or making any representations or warranties in respect of, any Confidential Information disclosed under this Agreement (and each Party’s reliance on such Confidential Information is at its sole risk and responsibility).
- Each Party acknowledges that any violation of the provisions of this section 14 may cause irreparable damage or injury to the other Party, the exact amount of which may be impossible to ascertain, and that, for this reason, in addition to any other remedies available to a Party, it is entitled to proceed immediately to court in order to obtain interim, interlocutory, and final injunctive relief restraining the other Party from breaching, and requiring the other Party to comply with, its obligations under this Section 6, without a requirement that a finding of irreparable harm, proof of actual damages or other criteria for the awarding of injunctive relief be made. Each Party agrees not to plead sufficiency of damages as a defense, and acknowledges the importance of strict compliance with the terms of this Section 6, and that each Party’s interest in the strict enforcement of this Section 6 will outweigh the balance of convenience or harm that a Party may suffer as a result of the strict enforcement of this Section 6. Nothing in this Section 6 will be construed to limit the right of a Party to obtain injunctive relief in any other circumstance in which it may be otherwise entitled to such relief.
Aheeva and/or Subscriber may issue publicity or marketing communications concerning its involvement with the other party, subject to such other party’s prior written or verbal approval, which must not be unreasonably denied. Subscriber hereby grants a limited, worldwide, royalty-free license to display Subscriber‘s name and logo on its website and in marketing materials during the Service Term. Subscriber may revoke this license by providing written notice to Aheeva at email@example.com. Subscriber shall cooperate with Aheeva to issue a press release announcing that it has selected Aheeva as a service provider no later than forty-five (45) days after signing this Agreement and shall cooperate with Aheeva to issue a case study no later than ninety (90) days after implementation is complete, discussing the success metrics, and shall participate in other marketing-related activities related to the Aheeva implementation.
- Intellectual property
Aheeva is and will be the exclusive owner of, and retain all Intellectual Property Rights in and to, the Aheeva Services. Subscriber agrees to, and shall cause Authorized Users to, cooperate fully and in good faith with Aheeva to safeguard and preserve Aheeva’s Intellectual Property Rights in and to the Aheeva Services. In addition, Aheeva shall exclusively own and retain all right, title and interest in and to all of its intellectual property of every kind, including in and to all inventions (whether patented or not), copyrights and works of authorship (whether subject to copyright registration or not), know-how, software applications, routines, source and object code, algorithms, APIs, processes and workflows, and improvements, enhancements, derivations or modifications of any of the foregoing that were or are developed by Aheeva in connection with the Aheeva Services or the Documentation. Unless otherwise stated in an Order Form or Schedule or Appendix to this Agreement, Aheeva shall own all deliverables provided under this Agreement, and Subscriber shall receive a limited license to use such deliverables solely in connection with the Aheeva Services.
- Subscriber will defend, indemnify, and hold Aheeva, its affiliates, and their employees, directors, and officers harmless from and against all claims, demands, actions, suits, discovery demands, including, without limitation, third–party subpoenas, government investigations or enforcement actions brought against Aheeva by a third-party and any damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) related thereto alleging: (i) Subscriber’s use of any feature of the Aheeva Services violates Subscriber’s contractual, regulatory, or other legal obligations, including but not limited to the Authorized Use Policy https://www.aheeva.com/authorized-use-policy/; (ii) Aheeva’s use of any Subscriber Data as permitted by this Agreement or any Subscriber Data infringes or misappropriates a third-party’s Intellectual Property Rights; (iii) a Third–Party Product provided by Subscriber or the combination of a Third–Party Product provided by Subscriber and used with the Aheeva Services infringes or misappropriates a third-party’s Intellectual Property Rights; or (iv) Subscriber’s use of the Aheeva Services or Third-Party Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form. Aheeva shall (a) promptly give Subscriber written notice of the claim against Aheeva, (b) give Subscriber sole control of the defense and settlement of the claim against Aheeva (except that Subscriber may not settle any claim against Aheeva unless it unconditionally releases Aheeva of all liability), and (c) give Subscriber all reasonable assistance, at Subscriber’s expense.
- Aheeva shall indemnify and defend Subscriber from and against all claims, brought against Subscriber by a third-party alleging that Subscriber’s use of the Aheeva Services as permitted by this Agreement infringes or misappropriates a third-party copyright, trade secret, trademark or patent (“IP Claim”); provided Subscriber: (a) promptly notifies Aheeva of all allegations of any such IP Claim, (b) grants Aheeva exclusive control over the defense and settlement of any such IP Claim, and (c) gives Aheeva any information it reasonably requests in connection with the defense of the allegation. If Aheeva receives notice or information about the IP Claim, Aheeva may in its discretion and at no cost to Subscriber: (i) modify the Aheeva Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Subscriber’s continued use of such Aheeva Services in accordance with this Agreement, or (iii) terminate Subscriber’s subscriptions for such Aheeva Services upon thirty (30) days’ written notice and refund Subscriber any prepaid and unused fees covering the remainder of the Services Term of the terminated subscriptions. The above defense and indemnification obligations do not apply if: (1) the allegation does not state with specificity that the Aheeva Services are the basis of the IP Claim against Subscriber; (2) an IP Claim against Subscriber arises from the use or combination of the Aheeva Services or any part thereof with software, hardware, data, or processes not provided by Aheeva, if the Aheeva Services or use thereof would not infringe without such combination; (3) an IP Claim against Subscriber arises from Aheeva Services for which there is no charge; or (4) an IP Claim against Subscriber arises from Third-Party Content, a Third-Party Product or Subscriber’s breach of this Agreement, the Documentation or applicable Order Forms.
- Section 17.2 states Aheeva’s sole liability to, and Subscriber’s exclusive remedy against, Aheeva for any IP Claim.
- Representations and warranties
- Each Party represents and warrants that it has the necessary rights, power, and authority to enter into this Agreement and perform its obligations herein.
- Subscriber represents and warrants that it will only use the Aheeva Services in compliance with applicable laws (including, but not limited to, all applicable laws governing intellectual property rights and the collection, use, and disclosure of personal information), and will not, directly or indirectly, export, re-export, transmit, or divert, or allow the export, re-export, transmission or diversion, of the Aheeva Services in contravention of any applicable export control laws, restrictions or regulations.
- EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SUBSCRIBER ACKOWLEDGES AND AGREES THAT THE AHEEVA SERVICES AND THE PRE-RELEASE SERVICES, THIRD-PARY CONTENT, AND THE DOCUMENTATION ARE PROVIDED “AS IS, WHERE IS” AND AHEEVA HEREBY DISCLAIMS ALL LIABILITY FROM ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, AHEEVA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT THE AHEEVA SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (A) MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS; (B) OPERATE WITHOUT INTERRUPTION; (C) ACHIEVE ANY INTENDED RESULT; (D) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES; OR (E) BE SECURE, UNINTERRUPTED OR ERROR FREE.
- UNLESS OTHERWISE PROVIDED IN AN ORDER FORM, THE AHEEVA SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR COMMUNICATION MESSAGES TO ANY EMERGENCY SERVICES. NEITHER AHEEVA NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND SUBSCRIBER WILL HOLD AHEEVA HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES.
- Limit of liability
- IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (i) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, BUSINESS INTERRUPTION, PUNITIVE OR EXEMPLARY DAMAGES; OR (ii) ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT) SAVINGS, GOODWILL, BUSINESS OPPORTUNITY, BUSINESS, OR REVENUES; WHETHER OR NOT CHARACTERIZED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE BY ONE OR BOTH PARTIES AND WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EXCEPT WITH RESPECT TO ITS OBLIGATIONS UNDER SECTION 17.2, IN NO EVENT SHALL AHEEVA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO AHEEVA PURSUANT TO THIS AGREEMENT FOR THE SERVICES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM.
- SUBSCRIBER ACKNOWLEDGES THAT THE USE OF THE AHEEVA SERVICES REQUIRES SUBSCRIBER TO HAVE NETWORK INFRASTRUCTURE AND INTERNET CONNECTIVITY THAT IS BEYOND THE CONTROL OF AHEEVA. IN ADDITION, SUBSCRIBER AGREES AND ACKNOWLEDGES THERE MAY BE SERVICE DEGRADATION OR INTERRUPTIONS OF A THIRD-PARTY PROVIDER’S NETWORK FROM ROUTINE MAINTENANCE OR ERRORS (WHETHER IDENTIFIED OR NOT) AND FOR ANY OTHER REASONS AND AGREES THAT AHEEVA SHALL NOT BE HELD LIABLE FOR SERVICE INTERRUPTIONS RESULTING THEREFROM.
- Term and Termination
- Term. This Agreement takes effect on the Effective Date specified in the applicable Order Form and shall continue for the service term specified in the Order Form (the “Initial Term”) unless the Agreement has been terminated. Unless otherwise stated in the applicable Order Form, each Order Form shall automatically renew for successive Renewal Terms of the same length as the Initial Term, unless either party gives written notice to the other party of its intention not to renew no later than thirty (30) days prior to the end of the then-current Initial Term or Renewal Term, as applicable. The Initial Term, together with any renewal period(s), shall constitute the “Term”.
- Either Party may elect not to renew the Agreement, or any Order Form, by providing at least thirty (30) days’ prior written notice to the other Party before the end of the Initial Term or any Renewal Term, as applicable.
- Either Party shall have the right to terminate this Agreement at any time after the expiry of the initial Service Term. For greater certainty, Subscriber shall not be entitled to any reimbursement of pre-paid fees upon termination.
- Either Party may terminate this Agreement for a material breach of this Agreement which is not cured (if the breach is capable of cure) within thirty (30) days after receipt of notice describing such breach. Notwithstanding the foregoing, this Agreement will terminate immediately upon (a) the institution by or against either Party of insolvency, receivership, or bankruptcy proceedings for the settlement of the other Party’s debts, (b) either Party making an assignment for the benefit of creditors, or (c) either Party’s dissolution or ceasing to do business.
- After the termination of this Agreement for any reason, Subscriber shall cease using Aheeva Services, and each Party shall return all originals and copies of the other Party’s Confidential Information in its possession to the other Party or confirm that such Confidential Information has been returned or destroyed; provided, however, that (1) each Party may retain copies of the other Party’s Confidential Information that are stored on the receiving Party’s information technology back-up and disaster recovery systems until the ordinary course deletion thereof, so long as such Confidential Information is not accessible in the ordinary course of business and is not accessed except as required for back-up, recovery, contingency planning or business continuity purposes; and (2) the receiving Party shall keep such retained Confidential Information confidential and subject to the confidentiality and non-disclosure obligations herein while in the possession of the receiving Party.
- Aheeva may suspend access to the Aheeva Services immediately if Subscriber: (a) fails to timely pay any amounts due under this Agreement; (b) is in material breach of this Agreement; or (c) is using the Aheeva Services in violation of law or applicable regulations. Suspension notices under this Section may be sent to the Subscriber’s billing email address stated on the Order Form.
- Should Subscriber object to this Agreement or any subsequent modifications to it or become dissatisfied with the Aheeva Services in any way, Subscriber’s only recourse is to immediately discontinue the use of Aheeva Services and terminate the account.
- Class Action Waiver
To the extent permitted by applicable law, the parties hereby waive their rights to assert any claim as a plaintiff or class member in any purported class action, collective action, private attorney general action, or other representative proceeding.
- Dispute resolution
- Class Action Waiver. To the extent permitted by applicable law, the parties hereby waive their rights to assert any claim as a plaintiff or class member in any purported class action, collective action, private attorney general action, or other representative proceeding.
- Resolution and Choice of Law. If there is any dispute or claim arising out of or relating to this Agreement (a “Dispute“), such Dispute shall be initially referred to a senior executive of each Party (collectively, the “Executives”). The Executives will meet as soon as reasonably possible after a Dispute is referred to them, giving due regard to the nature and impact of the issue under consideration, to seek to resolve such dispute in good faith. If the Executives are unable to rectify the Dispute, the parties agree that any proceeding relating to the Dispute shall be brought in the City of Montreal, Quebec, Canada.
- Jury Trial. The parties hereby waive any right to a jury trial in connection with a dispute related to this Agreement.
- Attorneys’ Fees. If any legal proceeding is instituted to enforce the terms of this Agreement, the prevailing party shall be awarded its costs of litigation, including attorneys’ fees and other associated costs.
- General Provisions
- Waiver. The delay or failure by any party to enforce any provision of this Agreement does not constitute a waiver of future enforcement of that or any other provision.
- Links. Certain links provided in the Aheeva Services may take Subscriber to websites that are owned and operated by third parties (“Third-Party Sites”). Aheeva provides these links as a convenience only and does not endorse or have any control over any Third-Party Sites or their content, or any products, services, or information they provide. If Subscriber decides to visit any Third-Party Sites, Subscriber does so at its own risk and waive any claims against Aheeva.
- Force Majeure. Aheeva will not be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Aheeva employees), Internet service provider failure or delay, Third–Party Product, or denial of service attack.
- Assignment. Subscriber may not assign its rights or obligations under this Agreement (including all Order Forms) to a third-party without the prior written consent of Aheeva; provided, however, that Subscriber shall have the right to assign, without any consent of Aheeva, its rights and obligations under this Agreement to any other entity pursuant to a merger, consolidation or reorganization or sale of substantially all its assets or equity. Aheeva may freely transfer, assign, or delegate this Agreement and/or any Order Form(s) or SOW(s) or its rights and duties under this Agreement and any Order Form(s) or SOW(s). Any purported assignment contrary to this section 24.4 shall be void.
- Parties Relationship. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Severability. If any portion of this Agreement is deemed invalid or unenforceable by a court of competent jurisdiction, such portion shall be deemed severed from this Agreement and the Parties agree that the remaining portions of this Agreement shall remain in full force and effect.
- Entire Agreement. This Agreement sets forth the entire agreement between the parties and supersedes any verbal or written agreement with respect to the subject matter hereof. The Agreement binds the Parties as well as their respective successors, legal representatives, and assigns. This Agreement will prevail over any additional, conflicting or inconsistent terms and conditions which may appear on any purchase order furnished by Subscriber, and such purchase order terms and conditions will have no force or effect, notwithstanding Aheeva’s acceptance or execution of such purchase order. Subscriber agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Aheeva regarding future functionality or features.
- Execution, Digitized Copies and Counterparts : This Agreement may be executed in two or more identical counterparts (whether by electronic signature, in facsimile, email, in PDF or original, or acknowledgement through a webpage), each of which shall constitute an original as against the party whose signature appears thereon, and all of which together shall constitute one and the same instrument.
- Notice. Aheeva shall deliver notices to the Subscriber’s billing address or billing email address stated on the Order Form. Except as otherwise provided herein, Subscriber shall deliver notices to:
Aheeva Technology, Inc.
Attn: Legal Department
300-150 Blvd. De la Côte-Vertu
Saint-Laurent, QC, H4N 1C6
All notices must be in writing and must be delivered by hand, by email, by registered or certified mail (postage prepaid), or by commercial overnight delivery service. Notice will be deemed to have been duly given: (1) upon delivery, if delivered by hand to an officer of the receiving party; (2) when sent to the appropriate confirmed email address, if delivered by email; (3) three business days after being mailed by registered or certified mail, postage prepaid, or on the day tracking information indicates delivery, if applicable; or (4) the next business day, if sent by commercial overnight delivery service, or on the day tracking information indicates delivery, if applicable.
- The parties confirm that it is their wish that this Agreement be written in the English language only. Les parties confirment leur volonté que la présente convention soit rédigée en anglais seulement.