Avoca Master Customer Agreement

This Master Customer Agreement (“Agreement”) is between Alphablock Labs Inc. (dba Avoca) (“Avoca”) and the entity identified as “Customer” in the order form signed by Avoca and Customer, the checkout page on Avoca’s website, or the order confirmation email generated by Avoca, in each casereferencing this Agreement (the “Order”). Avoca and Customer are each a “Party” and, collectively, the “Parties.” Capitalized terms used but not defined in this Agreement will have the meanings set forth in the Order. Acceptance of this Agreement is a condition to accessing and using the Services or any part thereof. The Parties hereto agree as follows:

1. Overview. Subject to the terms and conditions of this Agreement, Avoca will make available to Customer Avoca’s software-as-a-service AI-powered user interface accessible at www.avoca.ai (the “Services”). Certain specific features and functionalities of the Services are described and governed by additional product-specific terms, which may be made available to Customer from time to time, including the terms located at http://www.avoca.ai/legal/terms-conditions-product. Product-Specific Terms governing any Services used by or made available to Customer are deemed incorporated into this Agreement.
2. Services
   
   1. Ordering Process. Customer will purchase the Services pursuant to the Order.
   2. Access Grant. During the Term, subject to Customer’s compliance with the terms of this Agreement, Customer may access and use the Services in accordance with the Documentation and this Agreement to: (a) facilitate communication with current and prospective customers of Customer (including text-based and voice communication) for Customer’s business purposes (including business generation and scheduling) and (b) use the analytics features of the Service for Customer’s internal business purposes.
   3. Users. Other than as expressly permitted in the Product-Specific Terms, Customer will not make the administrative features and functionality of the Services available to any person or entity other than employees or independent contractors of Customer that Customer authorizes to use the applicable Services on Customer’s behalf (“Users”) using the mechanisms designated by Avoca (“Log-in Credentials”). Customer will ensure that each User keeps such User’s Log-in Credentials confidential and does not share them with anyone else. Customer is responsible for Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Avoca’s breach of this Agreement). Customer will promptly notify Avoca if Customer becomes aware of any compromise of any Log-in Credentials. Avoca may collect, access, use, disclose, transfer, transmit, store, host, or otherwise process (“Process”) Log-in Credentials in connection with Avoca’s provision of the Services or for Avoca’s internal business purposes.
   4. Documentation. During the Term, subject to Customer’s compliance with the terms of the Agreement, Avoca hereby grants to Customer a limited, non-exclusive, non-transferable (except as set forth in Section 16.1 (Assignment)), and non-sublicensable right and license to internally use the then-current version of Avoca’s usage guidelines and standard technical documentation for the Services that Avoca makes generally available to its customers (“Documentation”), solely in connection with Customer’s exercise of the rights granted in Section 2.2 (Access Grant).
   5. Restrictions. Customer will not (and will not permit anyone else to), directly or indirectly, do any of the following: (a) provide distribute, sell, or sublicense the Services to a third party (other than Users), unless otherwise expressly permitted in the Product-Specific Terms; (b) use the Services to develop a similar or competing product or service or to provide products or services to a third party; (c) reverse engineer, decompile, disassemble, or seek to access the source code or non-public application programming interfaces (“APIs”) to the Services, except to the extent such a restriction is not permitted under applicable Laws (and then only with prior notice to Avoca); (d) modify or create derivative works of the Services or copy any element of the Services; (e) remove or obscure any proprietary notices in the Services; (f) publish benchmarks or performance information about the Services, unless otherwise expressly permitted in the Product-Specific Terms; (g) interfere with the operation of the Services, circumvent any access restrictions, or conduct any security or vulnerability test of the Services; (h) transmit any viruses or other harmful materials to the Services; (i) use the Services to take any action that risks harm to others; (j) intentionally harm the security, availability, or integrity of the Services; or (k) access or use the Services in a manner that violates any relevant local, state, federal or international laws, regulations, caselaw, or conventions, including those related to recordings, data privacy or data transfer, international communications, or export of data (collectively, “Laws”). In addition, Customer will comply with any further restrictions relevant to the use of the Services that may be requested or required by an Avoca third-party vendor or data provider, provided that Avoca informs Customer in advance of such restrictions (which requirement may be satisfied by email or a notification displayed in the interface of the Services).
3. Support. During the Term, Avoca will use commercially reasonable efforts to provide the Services in a manner that minimizes errors and interruptions in accessing the Services. During the Term, Avoca will provide technical support to Users for issues and questions arising from the operation of the Services in accordance with Avoca’s then-current support policy (“Support”).
4. Data
   
   1. Use of Customer Data. Customer hereby grants Avoca a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to contractors and service providers), non-transferable (except as set forth in Section 16.1 (Assignment)) right to use, copy, store, disclose, transmit, transfer, publicly display, modify, create derivative works from, and Process any materials that Customer (including its Users) inputs or makes available to Avoca, including through the Services, or that are imported from a Third-Party Platform (collectively, “Customer Data”) solely as necessary to: (a) provide the Services and otherwise perform its obligations set forth in this Agreement; (b) facilitate, maintain, and operate an integration with Third-Party Platforms as described in Section 7; (c) derive or generate Telemetry; or (d) comply with applicable Laws.
   2. Telemetry. “Telemetry” means information related to Customer’s and Users’ use of the Services that is used by Avoca in an aggregated or deidentified manner, including to compile statistical and performance information related to the provision and operation of the Services, including, without limitation, information such as technical logs, data, metrics, and learnings about use of the Services. Avoca may Process Telemetry without restriction for Avoca’s business purposes, including to improve the Services or Avoca’s other products and services.
   3. Feedback. To the extent Customer provides Avoca with feedback (including suggestions and comments for enhancements or functionality) regarding the Services, or Avoca’s products, services, or other technology (“Feedback”), Avoca has the full and unrestricted right to use and exploit the Feedback or to incorporate Feedback into any of its products, services, technology, or other materials.
   4. Retention of Rights. Neither Party grants the other any rights or licenses not expressly set out in this Agreement. Without limiting the foregoing, except for the limited licenses granted in this Agreement, (a) Customer retains all of its rights in and to the Customer Data, and (b) Avoca and its licensors retain all of their rights in and to the Services, Documentation, Telemetry, and Avoca technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Avoca.
5. Customer Obligations. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with applicable Laws when using the Services. Customer represents and warrants that it has sufficient rights to grant the rights and licenses provided herein and that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Avoca to Process Customer Data and exercise the rights granted to it in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.
6. Suspension of Service. Avoca may immediately suspend Customer’s access to any or all of the Services if: (a) Customer breaches Section 2.5 (Restrictions) or Section 5 (Customer Obligations); (b) any payments required under this Agreement are overdue by 30 days or more; (c) changes to Laws or new Laws require that Avoca suspend the Services or otherwise may impose additional liability on the part of Avoca; or (d) Customer’s actions risk harm to Avoca, any of Avoca’s other customers, suppliers, or licensors, or the security, availability, or integrity of any of the Services. Where practicable, Avoca will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing).
7. Third-Party Platforms. The Services may support integration with third-party platforms, add-ons, services, or products not provided by Avoca (“Third-Party Platforms”). Use of any Third-Party Platforms integrated with or made available through the Services is subject to Customer’s agreement with the relevant provider and not this Agreement. Avoca does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Services, Customer authorizes Avoca to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf. To the extent an integration with a Third-Party Platform requires that Avoca use Customer’s access credentials for such Third-Party Platform, Customer: (a) agrees to provide such credentials, (b) represents and warrants that Customer has all necessary rights to provide such credentials, and (c) authorizes Avoca to use such credentials on Customer’s behalf in connection with the provision of the Services.
8. Fees and Taxes
   
   1. Fees. Customer will pay the fees for the Services set forth in the Order (“Fees”). All Fees will be paid in U.S. dollars unless otherwise provided in the Order. Fees are invoiced as described in the Order. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. Fees for Renewal Terms are at Avoca’s then-current rates. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Laws, whichever is less. All Fees are non-refundable except as set forth in Section 9.2.1  (Services Warranty) and Section 12.4 (Mitigation).
   2. Taxes. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to the Order, whether domestic or foreign, other than Avoca’s income tax (“Taxes”). Fees are exclusive of all Taxes.
9. Warranties and Disclaimers
   
   1. Mutual Warranties. Each Party represents, warrants, and covenants to the other Party that: (a) it is duly organized, validly existing, and in good standing in the jurisdiction of its incorporation; (b) the execution and delivery of this Agreement by such Party and the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of such Party; (c) this Agreement constitutes a valid and binding obligation of such Party that is enforceable in accordance with its terms; and (d) the entering into and performance of this Agreement by such Party does not and will not violate, conflict with, or result in a material default under any other agreement or obligation by which such Party is or may become subject or bound.
   2. Avoca Warranty
      1. Services Warranty. Avoca warrants to Customer that, during the Term, the Services will perform materially as described in the Documentation and Avoca will not materially decrease the overall functionality of the Services (the “Services Warranty”). If Avoca breaches the Services Warranty and Customer, within 30 days of discovering the breach of the Services Warranty, submits to Avoca a written warranty claim identifying in reasonable detail the nature of the breach, then Avoca will use reasonable efforts to correct the breach and cause the Services Warranty to be satisfied. If Avoca cannot do so within 30 days after receipt of a warranty claim that satisfies the requirements of the immediately foregoing sentence, either Party may terminate the Agreement. Avoca will then refund to Customer any pre-paid, unused Fees for the terminated portion of the Term. This Section sets forth Customer’s exclusive remedy and Avoca’s entire liability for breach of the Services Warranty.
      2. Exceptions. Notwithstanding anything to the contrary, the representations and warranties set forth in Section 9.2.1 (Services Warranties) do not apply to: (a) issues caused by Customer Data; (b) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (c) issues in or caused by Third-Party Platforms or other third-party systems (including Customer’s systems); (d) use of the applicable Services other than in accordance with the Documentation; or (e) Trials and Betas (as described in Section 14) or other free or evaluation use of the Services.
   3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 9.1 (MUTUAL WARRANTIES) AND 9.2.1 (SERVICES WARRANTIES), THE SERVICES, ANY SUPPORT, OUTPUT GENERATED FROM THE SERVICES, AND ALL OTHER AVOCA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” AVOCA, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. AVOCA DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES OR ANY OUTPUT FROM THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. AVOCA IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, TELECOMMUNICATION NETWORKS, OR OTHER SYSTEMS OUTSIDE AVOCA’S CONTROL, INCLUDING THIRD-PARTY PLATFORMS AND CUSTOMER’S SYSTEMS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.
10. Term and Termination
    
    1. Term. The term of this Agreement begins on the effective date set forth in the Order (the “Effective Date”), continues for the initial term specified in the Order (the “Initial Term”), and will automatically renew for additional successive renewal terms having the length set forth in the Order (each renewal term, an “Renewal Term”), unless either Party gives the other Party notice of non-renewal at least 30 days before the start of the next Renewal Term. If no Renewal Term is specified in the Order, then this Agreement will expire at the conclusion of the Initial Term. The Initial Term and all Renewal Terms are, collectively, the “Term.”
    2. Termination. Either Party may terminate this Agreement (including the Order) immediately upon written notice if the other Party: (a) fails to cure a material breach of this Agreement (including, where Customer is the breaching Party, a failure to pay Fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that Party and not dismissed within 60 days.
    3. Effect of Termination. Upon expiration or termination of this Agreement: (a) Customer’s rights to access, and Avoca’s obligations to provide, the Services will cease; (b) Customer will promptly pay to Avoca all Fees or other amounts that have accrued prior to the effective date of such expiration or earlier termination; and (c) each Party will promptly return or delete Confidential Information of the other Party, provided that Avoca may retain copies of Customer Data and other Confidential Information of Customer (i) as expressly agreed upon by the Parties, (ii) as necessary to comply with Laws, and (iii) to the extent contained in standard backups, subject to this Agreement’s confidentiality provisions.
    4. Survival. These Sections survive expiration or termination of this Agreement: 2.5 (Restrictions), 4 (Data), 5 (Customer Obligations), 8 (Fees and Taxes), 9.3 (Disclaimers), 10.3 (Effect of Termination), 10.4 (Survival), 11 (Limitations of Liability), 12 (Indemnification), 13 (Confidentiality), 14 (Trials and Betas), 15 (Publicity), and 16 (General Terms), the Product-Specific Terms, and any other sections that, by their express terms, should survive such expiration or termination. Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a Party may have.
11. Limitations of Liability
    
    1. Consequential Damages Waiver. EXCEPT FOR LIABILITY ARISING FROM EXCLUDED CLAIMS, NEITHER PARTY (NOR ITS SUPPLIERS OR LICENSORS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
    2. Liability Cap. EXCEPT FOR LIABILITY ARISING FROM EXCLUDED CLAIMS, EACH PARTY’S (AND ITS SUPPLIERS’ AND LICENSORS’) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO AVOCA PURSUANT TO THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM GIVING RISE TO THE LIABILITY AROSE UNDER THIS AGREEMENT.
    3. Excluded Claims. “Excluded Claims” means: (a) Claims for unpaid Fees owed to Avoca under the Agreement; (b) Customer’s breach of Sections 2.5 (Restrictions) or 5 (Customer Obligations); and (c) either Party’s indemnification obligations under Section 12 (Indemnification).
    4. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 11 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
12. Indemnification
    
    1. Indemnification by Avoca. Avoca will either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that the Services, when used by Customer in accordance with this Agreement, infringe or misappropriate a third party’s U.S. patent, copyright, trademark, or trade secret (“Avoca Indemnified Claim”), and Avoca will indemnify and hold harmless Customer against any expenses, liabilities, damages and costs of any kind (including attorneys’ fees) resulting from any Avoca Indemnified Claim.
    2. Indemnification by Customer. Customer will, at Avoca’s request, defend Avoca from or settle Claim brought by a third party against Avoca: (a) alleging facts that, if true, would result in Customer’s breach of Section 5 (Customer Obligations); or (b) arising out of Customer’s gross negligence or willful misconduct (each of (a) and (b), a “Customer Indemnified Claim”), and Customer will indemnify and hold harmless Avoca against any expenses, liabilities, damages and costs of any kind (including attorneys’ fees) resulting from any Customer Indemnified Claim.
    3. Procedures. The indemnifying Party’s obligations in this Section 12 are subject to it receiving: (a) prompt written notice of the Claim (provided that failure to provide such notice promptly shall not relieve the indemnifying Party of its obligations unless such failure materially prejudices the indemnifying Party); (b) the exclusive right to control and direct the investigation, defense, and settlement of the Claim; and (c) all reasonably necessary cooperation of the indemnified Party, at the indemnifying Party’s expense for reasonable out-of-pocket costs. The indemnifying Party may not settle any Claim without the indemnified Party’s prior consent if settlement would require the indemnified Party to take or refrain from taking any action (other than relating to use of the Services, when Avoca is the indemnifying Party).
    4. Mitigation. In response to an actual or potential Claim relating to infringement, misappropriation, or violation of intellectual property rights, if required by settlement or injunction or as Avoca determines necessary to avoid material liability, Avoca may at its option: (a) procure rights for Customer’s continued use of the applicable Services; (b) replace or modify the allegedly infringing portion of the applicable Services to avoid infringement or misappropriation without reducing such overall functionality of such Services; or (c) terminate this Agreement and refund to Customer any pre-paid, unused Fees for the terminated portion of the Term.
    5. Exceptions. Avoca’s obligations in this Section 12 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Services or use of Services in combination with items not provided by Avoca (including Third-Party Platforms or Customer Data); (b) to unauthorized use of the Services; (c) if Customer settles or makes any admissions about a Claim without Avoca’s prior consent; or (d) to Trials and Betas or other free or evaluation use.
    6. Exclusive Remedy. THIS SECTION 12 SETS OUT CUSTOMER’S EXCLUSIVE REMEDY AND AVOCA’S ENTIRE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
13. Confidentiality
    
    1. Definition. “Confidential Information” means information disclosed to the receiving Party (“Recipient”) under this Agreement that is designated by the disclosing Party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Avoca’s Confidential Information includes the terms and conditions of this Agreement and the Services (including any technical or performance information about the Services).
    2. Obligations. As Recipient, each Party will: (a) hold Confidential Information in confidence and implement reasonable measures to prevent its disclosure to third parties except as permitted in this Agreement, including Section 4.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Avoca is the Recipient, Avoca may retain the Customer’s Confidential Information to the extent required to continue to provide the Services as contemplated by this Agreement. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Avoca, the subcontractors referenced in Section 16.8) (collectively, “Representatives”), provided Recipient remains responsible for their compliance with this Section 13 and such Representatives are bound by written agreements (or, in the case of professional advisers like attorneys and accountants, ethical duties) imposing confidentiality and non-use obligations no less protective than this Section 13. Notwithstanding anything to the contrary, nothing in this Agreement will restrict Avoca’s use and exploitation of ideas, concepts, know-how, skills, techniques and other information which in each case are of a general nature. The foregoing will not, however, operate to grant Avoca any rights under any patents or copyrights of Customer.
    3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the Recipient or its Representatives; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using or referencing Confidential Information.
    4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Discloser may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 13, without necessity of posting a bond or proving actual damages.
    5. Required Disclosures. Nothing in this Agreement prohibits Recipient from making disclosures, including of Customer Data and other Confidential Information, if required by Laws, subpoena, or court order, provided (if permitted by Laws) it notifies Discloser in advance and reasonably cooperates in any effort to obtain confidential treatment.
14. Trials and Betas. If Customer receives access to Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Avoca (or if not designated, 30 days). Trials and Betas are optional and either Party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Avoca may never release, and their features and performance information are Avoca’s Confidential Information. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, AVOCA PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS, AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED $50 USD.
15. Publicity. Nothing in this Agreement grants either Party the right to use the name, brand, or logo of the other Party, and neither Party may publicly announce that the Parties have entered into the Agreement, except with the other Party’s prior consent or as required by Laws. However, Avoca may use the name, brand, or logo of Customer (or Customer’s parent company) for the purpose of identifying Customer as a licensee or customer on Avoca’s website or in other promotional materials, or as part of a list of Avoca’s customers in a press release or other public relations materials announcing Customer’s use of the Services. Customer agrees to participate in a case study related to Customer’s use of the Services upon request by Avoca. Avoca will cease further use at Customer’s written request.
16. General Terms
    
    1. Assignment. Neither Party may assign this Agreement without the prior consent of the other Party, except that either Party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its voting securities or assets to which this Agreement relates to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
    2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts having jurisdiction over New York, New York and both Parties submit to the personal jurisdiction of those courts.
    3. Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and sent to 55 5^th Ave Floor 17 New York, NY 10003 or billing@avoca.ai if to Avoca or to the address or email address specified on the applicable Order if to Customer, and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); (c) one day after dispatch if by a commercial overnight delivery service; or (d) upon the earlier of the receipt of a confirmation email or one day after sending if by email. Either Party may update its address with notice to the other Party pursuant to this Section. Avoca may also send operational notices to Customer by email or through the Services.
    4. Entire Agreement. This Agreement, including the Order, Product-Specific Terms and other attachments referenced herein, is the Parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. The Order may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
    5. Amendments. Except as otherwise expressly set forth in this Agreement, any amendments, modifications, or supplements to this Agreement must be in writing and signed by each Party’s authorized representatives or, as appropriate, agreed through electronic means provided by Avoca. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Avoca; any of these Customer documents are for administrative purposes only and have no legal effect. Notwithstanding the foregoing, Avoca may from time to time notify Customer of updates to this Agreement (including by displaying a notification on the Services). Such updated version of this Agreement will become effective on a going forward basis at the start of the first Renewal Term occurring at least 60 days after the date on which Avoca provided such notice to Customer.
    6. Waivers and Severability. Waivers must be signed by the waiving Party’s authorized representative and cannot be implied from conduct. If any provision of the Agreement is held invalid, illegal, or unenforceable, such invalidity will not affect the remainder of the Agreement, and the invalid, illegal, or unenforceable provision will be replaced by a valid provision that has as near as possible an effect to that of the invalid, illegal, or unenforceable provision as is reasonably practicable without such replacement provision risking similar invalidity, illegality, or unenforceability.
    7. Force Majeure. Neither Party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, electrical failures, telephone communication system failures, change in Laws, refusal of government license, or natural disaster.
    8. Subcontractors. Avoca may use subcontractors and permit them to exercise Avoca’s rights, but Avoca remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
    9. Independent Contractors. The Parties are independent contractors, not agents, partners, or joint venturers.
    10. Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using the Services. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use the Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.
    11. Government End-Users. Elements of the Services may include commercial computer software. If Customer or any Users are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
    12. Conflicts in Interpretation. Inconsistencies or conflicts among the terms of this Agreement will be resolved with respect to such inconsistency or conflict in the following descending order of precedence: (a) the terms of the Order; (b) the Product-Specific Terms; and (c) any other provision of this Agreement.

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