1. TERM, RENEWAL AND TERMINATION

The term of this Agreement is one year unless otherwise indicated and approved by 5AVE (e.g., on an Order Form, on the 5AVE website, etc.). If a multi-year payment schedule is selected, the term equals the length of the payment cycle. Free and Trial plans can be canceled at any time.

You will be liable for all the fees of your account according to the terms of this Agreement. This Agreement renews automatically for a term of equal length at the end of each term, unless it is previously terminated by either party or a different plan and/or term is selected to take effect on the next renewal date. Annual and multi-year terms require thirty (30) days written notice for cancellation or downgrades before the end of their term, which requires signing into the account and completing the cancellation process. Cancellations or downgrades requested in the middle of a term will be effective on the next renewal date.

Compliance and HIPAA Platform Accounts incur a termination fee when the Account is closed for any reason. This mandatory termination fee allows 5AVE to maintain transaction logs of the account for the required period of six (6) years for HIPAA and three (3) years for Compliance Accounts. The termination fee for HIPAA Accounts is equal to two (2) months of the Account’s highest monthly fee in the prior six (6) years and for Compliance it is equal to one (1) month of the highest monthly fee in the prior three (3) years.

Either party may terminate this Agreement upon thirty (30) days prior written notice in the event of a material breach that is not cured within thirty (30) days after notice.

Upon the expiration or termination of the Agreement, You will cease to use the Service and remove all references to 5AVE from Your websites.

2. LICENSE

For the term of the Agreement, 5AVE grants to You a limited, non-transferable, non-exclusive right to access and use its proprietary, commercially available Service for Your internal business use. The Service is made available to You as a hosted service. We host and retain physical control over the software and only make it available for access and use by You and Your end users over the Internet. Nothing in this Agreement obligates 5AVE to deliver or make available any copies of computer programs or code from the software to You. You may not rent, lease, distribute, or resell the Service, or use the Service as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, branding, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Service.

3. YOUR DATA PROTECTION RESPONSIBILITIES

You understand that 5AVE offers a platform for creating applications. The platform provides many security features, which vary by edition. However, it is the responsibility of You and Your personnel to build applications in accordance with security best practices and applicable data protection laws. Additionally, You expressly acknowledge that Your personnel have the capability to download data, create API tunnels, as well as authorize third-party services to view or manipulate the data and files stored in Your 5AVE account. You and Your personnel are also able to build applications that allow public or authorized users to view or download data. It is Your responsibility to ensure that Your personnel are properly trained in the use of these features and follow all applicable data protection laws, data management security best practices, and your company’s policies. You hereby acknowledge that You and Your personnel could intentionally or inadvertently expose Your data to unauthorized users if proper practices and procedures for building secure applications are not followed. Further, You alone shall be responsible and liable for any unauthorized or unintentional data disclosure that may occur from the acts, omissions, or negligence of You, Your personnel or the end user.

4. USAGE RULES

The Service is offered to you to help you with the operation of your business.

You may not access the Service if you are a direct competitor of 5AVE. You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You may not, without 5AVE’s prior written consent, allow any employee or consultant to perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan.

You agree not to use the Service to: (i) conduct any business that is unlawful; (ii) infringe or otherwise violate a third party’s rights; (iii) collect information about third parties without their express consent; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vi) send or store infringing, obscene, pornographic, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or in violation of third party privacy rights; (vii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (viii) facilitate online gambling, games of skill or lotteries, including online casino, sports books, bingo, or poker that in any way involves the collection and/or disbursement of gambling funds by and through 5AVE’s platform; (ix) facilitate or support any pyramid or Ponzi schemes, matrix programs, or other “get rich quick” schemes; (x) facilitate or participate in any phishing schemes; (xi) attempt to gain unauthorized access to the Service or its related systems or networks, or (xi) falsify the origin of an electronic message (email, SMS, etc.) in any way.

5AVE reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, from the Service, at 5AVE’s sole discretion, without any notice.

5. NON-5AVE PRODUCTS AND SERVICES

5AVE and/or third parties may make available (i.e., through a Marketplace or otherwise) third party products or services and implementation and other consulting services (“Non-5AVE Applications”). Any use by Customer of any Non-5AVE Products/Services, and any exchange of data between Customer and any Non-5AVE provider, product or service, is solely between Customer and the applicable Non-5AVE provider. 5AVE does not warrant or support Non 5AVE Applications or other Non-5AVE products or services, whether they are designated by 5AVE as “Certified” or otherwise, unless expressly so provided in an Order Form (specifically, 5AVE is not responsible for any disclosure, modification or deletion of Customer Data arising from any Non 5AVE Application or its provider). The Services may contain features designed to interoperate with Non-5AVE Applications; however, 5AVE does not guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation.

6. FREE PLAN

If you are using a 5AVE Free plan you agree that You (i) will not hide or otherwise tamper with 5AVE branding on your applications; (ii) will maintain accurate and up to date contact information; and (iii) will not sign up for more than one free account unless explicitly permitted by 5AVE. 5AVE may, at its sole discretion, (a) immediately terminate your service if any of the requirements above are not met; or (b) change or discontinue the Free plan at any time.

7. SUSPENSION DUE TO HARM

5AVE may suspend Your account if it reasonably concludes that the activity of Your account is unlawful, or causes harm to 5AVE and/or others. If we suspend Your access to the Service, we will use commercially reasonable efforts to notify you and to resolve the issues causing the suspension of Service. 5AVE shall not be liable to You nor to any third party for any suspension of the Service under such circumstances. It is Your responsibility to ensure that the contact information in your account is accurate for reaching You or Your representative.

8. FEES

Fees and any other charges for the use of the Service and for any add-ons and overages are described on the Order Form or 5AVE website, and may change from time to time. If we change them, we will give you at least 30 days’ notice, after which your continued use of the Service indicates your agreement with the new fees and charges. Any change to fees and other charges will not be applicable to the Term in which the change occurs.

9. LATE PAYMENT

All Service fees are billed in advance according to Your chosen billing cycle. Overage fees are billed monthly arrears. All Fees shall be paid in United States dollars unless otherwise agreed. If undisputed amounts are not paid within thirty (30) days Your account is automatically suspended. Suspended accounts (including their data and applications) are automatically deleted thirty (30) days after suspension. Reactivation of a suspended account requires the payment of all past due invoices and a reactivation fee.

You must notify 5AVE within fifteen (15) days of the end of a billing cycle regarding any amount in dispute and must include reasonable detail regarding such dispute.

10. OWNERSHIP OF INTELLECTUAL PROPERTY

You retain all right, title and interest to all the data that you, your employees or your app end users upload or submit to your account in the course of using the Service “Customer Data”. You, not 5AVE, shall have sole responsibility for the accuracy, quality, integrity, legality, deletion, correction, reliability, appropriateness, and intellectual property ownership or right to use the uploaded, submitted or exported Customer Data, and 5AVE shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or any use or export of such Customer Data from your 5AVE account. 5AVE reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including non-payment or unlawful use of the Services, provided, however, that this right shall not infringe upon a data subject’s right under any applicable data protection laws. Upon termination for cause, your right to access or use Customer Data immediately ceases, and 5AVE shall have no obligation to maintain or forward any Customer Data.

5AVE shall own all rights, title and interest in and to all intellectual property rights in the Service and software, and transactional and performance data. The license granted to You does not convey any rights or ownership in the Service, express or implied, or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by 5AVE.

11. FAIR USE

Many 5AVE plans do not impose fixed limits on the usage of certain resources (e.g. data transfer, triggered actions, API profiles, etc.). Our intention is to provide simple pricing plans that allow customers to enjoy our services with as much freedom and little concern as possible.

These plans are suitable for 99% of our customers. The usage of about 1% of our customers fall outside what we consider “Fair Use” and they will be contacted by our staff to consider a more appropriate plan. Many factors determine Fair Use for any given account, such as the overall size of the account, length of the relationship, level of commitment, industry, geographic region, and customer engagement factors.

12. UPGRADES AND UPDATES

5AVE reserves the right to enhance, upgrade, or modify the Service without notice to you. At 5AVE’s sole discretion some updates may be made available to You free of charge and some other features and functionalities may require additional fees if you choose to use them.

13. CONFIDENTIAL INFORMATION

For purposes of this Agreement, confidential information shall include Customer Data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Notwithstanding any definition contained within, personally identifiable information shall be considered confidential. Each party shall: (a) keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Either party may disclose Confidential Information on a need-to-know basis to its employees or contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of the Services. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation. With respect to any information received by either party from the other as a result of any other relationship between the parties other than in the course of performance hereunder (e.g., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any applicable Nondisclosure Agreement (or similar agreement) executed between the parties.

14. TAXES

All payments, fees and other charges payable by You to 5AVE under this Agreement are exclusive of all federal, state, local and foreign taxes, levies and assessments. You are responsible for the payment of all such taxes, levies and assessments imposed on You or 5AVE arising out of this Agreement, excluding any tax based on 5AVE’s net income.

15. WARRANTIES

5AVE represents and warrants that (i) 5AVE has all rights necessary to grant to You the rights set forth in this Agreement; and (ii) the Service will perform substantially in accordance with the user manuals and/or technical requirements documents that are generally provided by 5AVE in connection with the Service. EXCEPT FOR THE FOREGOING, THE SERVICE AND THE SOFTWARE ARE PROVIDED “AS IS” AND 5AVE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. 5AVE DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE OR SERVICE IS ERROR-FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE.

16. LIMITATION OF LIABILITY

In no event will either party be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of this Agreement. The aggregate liability of either party to the other with respect to this Agreement is limited to the fees collected by 5AVE from You pursuant to this Agreement in the twelve months preceding the imposition of liability.

17. INDEMNIFICATION

5AVE will, at its expense, defend or settle (at its option) any claim brought against You that the Service infringes any copyright, patent, trade secret, or any other proprietary right of any third party and will pay any final judgments awarded or settlements entered into; provided that You give prompt written notice to 5AVE of any such claim and 5AVE has the exclusive right to defend any infringement claim and make settlements thereof at its own discretion. You may not settle or compromise such claim except with prior written consent of 5AVE. You must give such assistance and information as 5AVE reasonably requires.

In the event any infringement claim, action or allegation is brought or threatened, 5AVE may, at its sole option and expense: (i) procure for You the right to continue use of the Service or infringing part thereof; (ii) modify, amend, or replace the Service or infringing part thereof, with other software having reasonably comparable capabilities; or, if neither of the foregoing is commercially practicable, (iii) terminate this Agreement and refund to You the prorated amount of the fees prepaid by You that were to apply to the remainder of the unexpired Term.

The foregoing obligations will not apply to the extent the infringement arises from: (i) any use of the Service in a manner other than as specified in this Agreement; (ii) any use of the Service in combination with other products, equipment, devices, software, systems or data not supplied by 5AVE; or (iii) any alteration, modification or customization of the Service made by any party other than 5AVE or 5AVE’s authorized representative, if such infringement would not have occurred without such modification or combination.

The foregoing states 5AVE’s entire liability for infringement of any intellectual property right.

You shall indemnify, hold harmless and defend 5AVE, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against 5AVE or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and litigation expenses) incurred by 5AVE or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your use of the Services to serve applications and data to your end users; (ii) your breach of this Agreement; (iii) your negligence or willful misconduct; or (iv) your violations of applicable law.

18. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES

5AVE may modify any of the terms and conditions contained in this Agreement or any policy governing the Service by posting the new agreement to the 5AVE website. Your continued use of the Service following 5AVE’s posting of changes constitutes your acceptance thereof.

19. COMPLIANCE WITH LAWS

Each party must comply with all laws, rules or regulations applicable to such party’s activities in relation to this Agreement, including export control laws of the United States.

This Agreement includes the 5AVE Data Processing Agreement (DPA) incorporated herein by reference. By agreeing to this Agreement, you also agree to the terms of the DPA. You may opt out of the DPA in its entirety by contacting 5AVE here. If you choose to opt out, you will be prohibited from using the Services to process personal data regulated by any applicable law.

Should you wish to use the Services in such a way to make you and your application(s) subject to other industry-specific regulations, you will be solely responsible for compliance with such regulations. Further, you may not use the Services in such a way that would subject 5AVE to those regulations without obtaining 5AVE’s prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle “Protected Health Information” (as defined in 45 C.F.R. §160.103) without entering into a separate Business Associate Agreement (BAA) with 5AVE and subscribing to a HIPAA enabled service plan.

5AVE does not and will not provide any legal advice regarding compliance with data privacy or other relevant laws, rules or regulations (“Laws”). You understand that the Service can be configured and used in ways that do and do not comply with Laws and it is Your sole responsibility to monitor its compliance and Your employee’s compliance with all relevant Laws.

20. SEVERABILITY AND WAIVER

Any provision of this Agreement held unenforceable for any reason shall be reformed to the extent necessary to make it enforceable. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

21. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to its conflicts of laws or its principles. You submit to the jurisdiction of the state of California, and agree to the courts of Santa Clara County, California as the appropriate forum. IN NO EVENT MAY THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.

22. U.S. GOVERNMENT RIGHTS

If the use of the Service is acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) or 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Software, including rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, shall be subject in all respects to the license rights and restrictions provided in this Agreement.

23. ASSIGNMENT; CHANGE IN CONTROL

This Agreement may be assigned by 5AVE to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any actual or proposed change in control of You shall entitle 5AVE to terminate this Agreement for cause immediately upon written notice.

24. NOTICES AND SERVICE OF PROCESS

5AVE may notify you via postings on https://Portal.5AVE.com, or by the email as provided in your account. You may contact 5AVE at the address below or by email at legal@5AVE.com.

Address:
5AVE, Inc., ATTN: Legal Department
201 SC Elastic RD
Landrum, SC 29356

Additionally, 5AVE accepts service of process at this address.

1. Definitions

The following definitions apply solely to this Data Processing Agreement:

• The terms “data controller”, “data subject”, “personal data”, “process,” “processing”, “processor” and “data processor” have the meanings given to these terms in EU Data Protection Law.
• “EU Data Protection Law” means any data protection or data privacy law or regulation of any European Economic Area (“EEA”) country applicable to Customer Data, including, as applicable, the GDPR and the e-Privacy Directive 2002/58/EC.
• “GDPR” means the EU General Data Protection Regulation 2016/679.
• “Sub-Processor” means an entity engaged by 5AVE to process Customer Data.
• “Customer Data” means the personal data (as defined by EU Data Protection Law) that is collected by or uploaded to the Service and processed in Your Account.
• “End Users” means your users, visitors or customers who may submit Customer Data which you control using the Service.
• “Security Incident” means a breach of security of the Service or 5AVE’s systems used to process Customer Data leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data transmitted, stored or otherwise processed by 5AVE in the context of this DPA.
• “Your Account” means your password-protected account for use of the Service and for billing in connection with such use. Your Account may be a trial, free, a paid subscription to the Service.

2. Applicability

This DPA only applies to you if you or your End Users are data subjects located within the EEA or the United Kingdom and only applies in respect to personal data (as defined by the EU Data Protection Law). You agree that 5AVE is not responsible for personal data that you have elected to process through third party services or outside of the Service, including the systems of any other third-party cloud services, offline or on-premises storage.

3. Details of Data Processing

• Subject Matter. The subject matter of the data processing under this DPA is personal data as defined in the EU Data Protection Law.
• Duration. The duration of the data processing under this DPA is for the lifetime of the relationship between you and 5AVE as determined by your use of the Service.
• Purpose. The purpose of the data processing under this DPA is the provision of the Service as initiated by you.
• Nature of the Processing. The provision of the Service including computing, storage and such other 5AVE Services at your instruction.
• Type of Personal Data. Customer Data relating to your End Users, staff or other individuals whose personal data is processed as part of the 5AVE Service in accordance with instructions given through Your Account.
• Categories of Data Subjects. Your End Users, staff and any other individuals personal data which you use the Service to process in accordance with EU Data Protection Law.

4. Processing Roles

This DPA applies when Customer Data is processed by 5AVE. In this context, 5AVE will act as “data processor” or “sub-processor” to the Customer who may act either as “data controller” or “data processor” with respect to Customer Data (as defined by EU Data Protection Law).

5. Description of Processing Activities

We will process Customer Data for the purpose of providing you with the Service, as may be used, configured or modified from within Your Account. For example, depending on how you use the Service, we may process your Customer Data in order to: (a) collect, organize, report or analyze data from your End Users through 5AVE-powered forms and applications that may be directly embedded on your website (b) email your End Users on your behalf at your instruction, or (c) authenticate your authorized End Users so they can access data and applications that you control. There may be other processing activities undertaken by 5AVE pursuant to the manner in which you design or employ the Service.

We will process Your Customer Data for the Purpose and in accordance with the Agreement or instructions you give us through Your Account. You agree that the Agreement and the instructions given through Your Account are your complete and final instructions to us in relation to your Customer Data. Additional instructions outside the scope of this DPA require prior written agreement between you and us, including agreement on any additional fees payable by you to us for carrying out such instructions.

6. Compliance With Laws

You will ensure that your instructions comply with all laws, regulations and rules applicable in relation to your Customer Data and that your Customer Data is collected lawfully by you or on your behalf and provided to us by you in accordance with such laws, rules and regulations. You will also ensure that the processing of your Customer Data in accordance with your instructions will not cause or result in us or you breaching any laws, rules or regulations (including EU Data Protection Law). You are responsible for reviewing the information available from us relating to data security pursuant to the Agreement and making an independent determination as to whether the Service meet your requirements and legal obligations as well as your obligations under this DPA. 5AVE will not access or use Your Customer Data except as provided in the Agreement, as necessary to maintain or provide the Service or as necessary to comply with the law or binding order of a governmental, law enforcement or regulatory body.

You are responsible for any liability or expenses arising from 5AVE’s compliance with your instructions or requests pursuant to the Agreement which fall outside the standard functionality made available by through the Service, including transferring Customer Data to third-party services outside of 5AVE Service.

7. Notification of Security Incident

We will provide you notice without undue delay: (a) after becoming aware of and confirming the occurrence of a Security Incident for which notification to you is required under applicable EU Data Protection Laws; (b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident. Notification of Security Incidents will be delivered to one or more of Customer’s account administrators by any means 5AVE selects, including via email. We will provide you with such information about the Security Incident as we are reasonably able to disclose to you, taking into account the nature of the Service, the information available to us and any restrictions on disclosing the information such as for confidentiality. Customer agrees that an unsuccessful Security Incident will not be subject to the same obligations outlined in this DPA under applicable EU Data Protection Laws. Our obligation to report or respond to a Security Incident under this Section is not and will not be construed as an acknowledgement by 5AVE of any fault or liability of 5AVE with respect to the Security Incident. Despite the foregoing, 5AVE’s obligations under this Section do not apply to incidents that are caused by you, any activity in Your Account and/or third-party services.

8. Reasonable Assistance With Compliance

We will, to the extent that you cannot reasonably do so through the Service, Your Account or otherwise, provide reasonable assistance to you in the event of an investigation by a competent regulator, including a data protection regulator or similar authority, if and to the extent that such investigation relates to the processing of Customer Data by 5AVE on your behalf in accordance with this DPA, taking into account the nature of the Service and information available to us. You will be responsible for our reasonable costs arising from our provision of such assistance. 5AVE may charge a reasonable fee for such requested assistance except where such investigation arises from a breach by 5AVE of the Agreement or this DPA, to the extent permitted by applicable law.

9. Security Measures

5AVE shall implement, and maintain throughout the term of the Agreement and this DPA at all times in accordance with then current good industry practice, appropriate technical and organizational measures to protect Customer Data in accordance with EU Data Protection Law. At your request, 5AVE will provide a written description of the security measures being taken at the time of the request. You agree that you may be required to agree to a non-disclosure agreement with 5AVE before we share any such information with you. We may change our security measures at any time, but will not do so in a way that adversely affects the security of Customer Data. We take steps to ensure that any natural person acting under our authority who has access to Customer Data does not process it except on our instructions, unless such person is required to do so under applicable law, and that personnel authorized by us to process Customer Data have committed themselves to relevant confidentiality obligations or are under an appropriate statutory obligation of confidentiality.

10. Sub-Processors

You agree that we can share your Customer Data with Sub-Processors in order to provide you the Service. We will impose contractual obligations on our Sub-Processors, and contractually obligate our Sub-Processors to impose contractual obligations on any further sub-contractors which they engage to process Customer Data, which provide the same level of data protection for Customer Data in all material respects as the contractual obligations imposed in this DPA, to the extent applicable to the nature of the Service provided by such Sub-Processor. A list of our current Sub-Processors as of the effective date of this DPA is available in Exhibit A below.

5AVE will notify Customer in advance (by email and by notice in the Service) of any changes to the list of Sub-Processors in place on the effective date of this DPA, except for emergency replacements or deletions of Sub-Processors without replacement. If you object to any Sub-Processor and your objection is reasonable and related to data protection concerns, we will use commercially reasonable efforts to make available to you a means of avoiding the processing by the protested Sub-Processor. If we are unable to make available such suggested change within a reasonable period of time, we will notify you and if you still object to our use of such Sub-Processor, you may cancel or terminate Your Account or, if possible, the areas of the Service that involve use of such Sub-Processor. Except as set forth in this section, or as you may otherwise authorize, we will not permit any Sub-Processor to access your Customer Data. Except as set forth in this section, if you object to any Sub-Processors, you may not use or access the Service.

5AVE may change a Sub-Processor where the reason for the change is outside of 5AVE’s reasonable control. In this case, 5AVE will inform Customer of the replacement Sub-Processor as soon as possible. Customer retains its right to object to a replacement Sub-Processor as laid forth in this section.

5AVE will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of any Sub-Processor or their further sub-contractors that process Your Customer Data and cause 5AVE to breach any of 5AVE’s obligations under this DPA, solely to the extent that 5AVE would be liable under the Agreement if the act or omission was 5AVE’s own.

11. Confidentiality

5AVE shall ensure that any person it authorizes to process Customer Data shall protect the Customer Data in accordance with 5AVE’s confidentiality obligations under the Agreement and this DPA. 5AVE will not disclose Customer Data to any government or any other third party, except as necessary to comply with the law or a valid and binding order of a law enforcement agency (such as a subpoena or court order).

12. Information Requests

5AVE shall make available to you all information necessary to demonstrate compliance with the obligations in this DPA and allow for and contribute to audits, conducted by you or an auditor mandated by you. 5AVE will inform you if, in its opinion, an instruction infringes on EU Data Protection Laws. 5AVE will also assist you with conducting any legally required data protection impact assessments (including subsequent consultation with a supervisory authority), if so required by the EU Data Protection Law, taking into account the nature of processing and the information available to 5AVE. 5AVE may charge a reasonable fee for such assistance with information requests, audits, or impact assessments, as permitted by applicable law.

13. Data Subject Requests

You are responsible for handling any requests or complaints from Data Subjects with respect to their personal data processed by 5AVE as Customer Data under this DPA. 5AVE will provide reasonable and timely response notifying you if we receive any such requests or complaints, unless prohibited by applicable law.

14. Data Transfers

You authorize us to transfer Customer Data away from the country in which such data was originally collected. In particular, you authorize us to transfer Customer Data to the U.S. We will transfer Customer Data to outside the EEA using the principles of the EU-U.S. Privacy Shield Frameworks or another lawful data transfer mechanism that is recognized under EU Data Protection Law as providing an adequate level of protection for such data transfers.

15. Return or Deletion of Customer Data

The Service provides features which allow the Customer, the data controller, to download and delete Customer Data. Upon termination of Your Account for any reason, 5AVE will delete Customer Data in accordance to our data retention policies and legal obligations, or at your request by contacting 5AVE here. Your requests to return or delete Customer Data may not be fulfilled to the extent that 5AVE is required by legal obligations or EU Data Protection Law.

16. Limitations of Liability

The liability of each party under this DPA is subject to the exclusions and limitations of liability set out in the Agreement. You agree that any regulatory penalties or claims by data subjects or others incurred by 5AVE in relation to Customer Data that arise as a result of, or in connection with, your failure to comply with your obligations under this DPA or EU Data Protection Law shall count towards and reduce 5AVE’s liability under the Agreement as if it were liability to the Customer under the Agreement.

17. Conflict and Termination of Agreement

In the event of a conflict between this DPA and the Agreement, this DPA will prevail. This DPA shall continue in force until the termination of the Agreement.

Exhibit A

5AVE Sub-Processors:
Amazon Web Services, Inc.
Twilio Inc.

1. Definitions

Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the 5AVE Bridge Terms of Service (“Agreement”).

2. Uptime Guarantee

We provide a 99.9% uptime guarantee. This means that for any given month, while unlikely, it is possible that 5AVE Bridge may experience an average downtime of up to 2678 seconds excluding scheduled maintenance. If an outage exceeds a cumulative of 2678 seconds in a month, we will credit 5% of the Your base monthly recurring fee for the affected account, per hour of downtime.

THE TOTAL CREDIT ALLOWANCE PER MONTH IS CAPPED AT 100% OF THAT MONTH’S MONTHLY RECURRING FEE FOR THE AFFECTED ACCOUNT.

This guarantee covers 5AVE’s application and database servers. This guarantee does not cover third-party services including email/SMS delivery, scheduled tasks, data import/export tasks, payment processors, and content delivery network (CDN) services.

3. Scheduled Maintenance

Scheduled Maintenance means any maintenance on the equipment and services that affect the uptime of 5AVE Bridge, for which You are notified at least 24 hours in advance.

Notice of Scheduled Maintenance will be provided to your account administrator by a method elected by 5AVE (email or telephone). Nothing in this agreement shall prevent 5AVE from conducting emergency maintenance on an as-needed basis. In the event that scheduled maintenance may unduly affect Your operations, it shall be Your responsibility to so notify 5AVE Technical Support via https://tickets.5AVE.com to discuss any necessary arrangements.

4. Credit Procedures and Exceptions

You must notify us via opening a support ticket at https://tickets.5AVE.com indicating that you wish to pursue your rights as guaranteed by this SLA within 10 days of the incident to be eligible for credit. 5AVE is not required to provide SLA-guaranteed services or credits to customers who are in default of their contractual obligations. Upon opening a support ticket, we will verify the claim and if the problem is verified and meets the requirements of this SLA, we will measure downtime.

Credits shall not be allowed for conditions (i) caused by You or others authorized by You; (ii) due to the failure of power, facilities, equipment, systems or connections not provided by 5AVE; (iii) the result of scheduled maintenance or upgrades where You have been notified in advance; (vi) attacks (i.e. hacks, denial of service attacks, viruses) by third parties, and other acts not caused by 5AVE and (vii) events of force majeure, including acts of war, god, earthquake, flood, embargo, riot, sabotage, labor dispute (outside of 5AVE’s own employees), government act, or failure of the Internet, and actions or inactions of Your personnel, affiliates and vendors.

Credits are accumulated monthly with Monthly Cumulative Downtime being reset at the beginning of each calendar month. Any two consecutive months in which Monthly Cumulative Downtime is in excess of 270 minutes would be considered a breach of contract by 5AVE and You would have the option to terminate with cause.

Credits are applied to future invoices or paid by check/wire if credit occurs in final service month.

5AVE monitoring systems and records shall be the information source of record for the accumulation of Monthly Cumulative incidents.

5. Other Limitations

The remedies set forth in this Service Level Agreement shall be Your sole and exclusive remedies for any Service Interruption, outage, unavailability, delay, or other degradation, or any 5AVE failure to meet the service objectives.

6. For More Information

If you have any questions or comments about this Agreement, contact us on the 5AVE.com website.

1. Scope

This Privacy Statement explains how we collect, use and disclose information, including Personal Data, in connection with 5AVE Services. For these purposes, “Personal Data” means information related to an identified natural person or that could reasonably be used (by itself or in combination with other data reasonably available) to identify a natural person.

This Privacy Statement describes the choices available to you regarding our use of your Personal Data and how you can access and update this information. This statement also covers our treatment of any Personal Data that our business partners share with us or that we share with our business partners.

2. Information We Collect

When you visit our websites, register for the Service, speak with us on sales or technical calls, or request more information about 5AVE Services, we may request that you provide Personal Data about yourself, we may record a live encounter, and we also collect navigational information. In some cases, if you do not provide sufficient Personal Data, we may not be able to provide all of our available products and services.

PERSONAL DATA

5AVE collects Personal Data such as name, title, phone number, email address, mailing address, and IP address. Additionally, when you sign up for a 5AVE paid service, we collect your billing information, including your credit card number, expiration date, and billing address. 5AVE may also receive Personal Data from its business partners based on your consent.

NAVIGATIONAL INFORMATION

5AVE also automatically collects navigational information such as your browser including your browser type, referrer page, domain name, access time, entry page, exit page, operating system type, and search engine keywords used.

COOKIES AND OTHER TRACKING TECHNOLOGIES

As is true of most websites, 5AVE and our third-party partners, such as our advertising and analytics partners, use cookies and other tracking mechanisms (web beacons, device identifiers and similar technologies) to recognize you across websites and provide certain functionality. 5AVE uses cookies and similar technologies to administer our websites, monitor behavioral trends to improve our content and Services, and protect the security of 5AVE Services. For more information, please see 5AVE’s Cookie Policy, where we have provided a mechanism to opt out of certain cookies and tracking technologies.

The 5AVE Bridge Service uses cookies tied to Personal Data for their essential operation, such as maintaining the security of authenticated user sessions. While you can disable cookies used in the 5AVE Bridge Service at the browser level, it is not recommended because certain features and/or controls may not function as designed or as required to effectively and securely use the Service.

SURVEYS

From time to time, 5AVE may invite you to participate in an online survey administered by 5AVE or a third-party agent. In addition to questions about your experience with 5AVE Services, these surveys include Personal Data such as name and email, and may request additional profile information. The results of these surveys help us better understand the needs of our customers in order to improve 5AVE Services, and may be shared in aggregate format with third parties.

TESTIMONIALS

We display personal testimonials of satisfied customers on our website in addition to other endorsements. With your consent, we may post your testimonial along with your name, company, title, logo, or profile photo.  If you wish to update or delete your testimonial, contact us here.

REFERRALS

5AVE may invite you to participate in referral program to inform your colleagues and friends about 5AVE Services. If you choose to use our referral service to tell a friend about 5AVE Services, we will ask you for your friend’s name and email address, which we understand you are authorized to provide.  To request removal of your Personal Data from our referral program, contact us here.

3. How We Use Your Information

5AVE uses the information we collect through our websites and Services to measure our business success, to identify effective ways to communicate with or educate our customers and prospects, to meet requests for certain product features and services, and to communicate about product updates and service incidents.

5AVE acts as an agent (the data processor) for each of our customers, in that 5AVE processes Personal Data only on the instructions from our customers (the data controller). As per our customer agreements, 5AVE does not access or make use of any data collected on the customer’s behalf except as necessary to provide our services to that customer. We do not aggregate, transfer, or otherwise disclose it to anyone but the customer, or pursuant to the customer’s instructions. We do, however, reserve a right to disclose data we collect if required by law or valid order of a court or other governmental authority.

Our legal basis for collecting and processing your Personal Data when you evaluate 5AVE Services, register for a 5AVE account, or purchase 5AVE Services is based on the necessity to perform a contract or take steps enter into a contract. Our legal basis for collecting and processing your Personal Data when you when you subscribe to receive 5AVE marketing emails is based on consent. There may be instances where processing Personal Data is in our legitimate interests (which is not overridden by your data protection interests), such as for research and development, to market and promote 5AVE Services, and to protect our legal obligations and interests.

4. Information We Share

5AVE will not rent, sell, or share Personal Data about you with third parties except to provide services that you have requested, when we otherwise have your permission, or under the following circumstances:

• When we need to disclose Personal Data to third-party agents that work on our behalf in order to provide 5AVE Services, but only to the extent needed to enable them to provide such services. For example, 5AVE uses third party agents for infrastructure hosting services and payment processing. All such third parties function as our agents performing services at our instruction and on our behalf pursuant to contracts which require they provide an equivalent level of privacy protection as is required by this Privacy Statement and any applicable data processing agreement in place.
• When we need to transfer your Personal Data to provide you with a service or product you are requesting through a 5AVE business partner. For example, if you sign up for a 5AVE account through one of our authorized resellers.
• When we conform to edicts of the law, to respond to subpoenas, court orders, or legal processes.
• When you have violated our agreements for the 5AVE Services you are using or have used.
• When we act under exigent circumstances to protect the personal safety of our customers or the public.
• If we (or our assets) are acquired, or if we go out of business, enter bankruptcy, or go through some other change of control, Personal Data could be one of the assets transferred to or acquired by a third party.

5. How to Access and Update Your Information

You have the ability to access, change and delete the Personal Data you submitted when you registered for the Service. If you are a registered 5AVE account user, you can access, change and delete your Personal Data at any time by signing into your account and editing your profile (under the Account option). If you are unable to sign into your account, reset your password or contact 5AVE Support. 5AVE takes steps to verify your identity before granting access to your account or Personal Data. If these options do not fully meet your needs, contact us here.

EUROPEAN PRIVACY  RIGHTS

5AVE acknowledges that you have the right to control your Personal Data, as provided by applicable data protection laws. Your rights include:

• You can request access, correction, updates, portability and/or deletion of your Personal Data.
• You have the right to object to 5AVE processing your Personal Data and request the processing be restricted.
• If you have consented to the processing of your Personal Data, you have the right to change your mind at any time, but this will not affect any processing that has already taken place nor will it affect any processing that is required for legal obligations.
• If we are unable to solve your request to your satisfaction, you have the right to complain to a data protection authority.

To exercise any of these rights, you can submit your request by contacting us here or by mail to 5AVE, Inc., 201 SC Elastic RD, Landrum, SC 29356, USA, Attention: Privacy. We will respond to your privacy requests within 30 days and notify you of the action(s) we have taken or required steps to fulfill the request.

Your requests to access, correct, or delete Personal Data may be restricted in certain situations, for example, if fulfilling the request would compromise Personal Data about another individual, or if you ask to delete information which 5AVE, 5AVE business partners, or 5AVE account owners are permitted by law or have compelling legitimate interests to keep.

If Personal Data pertaining to you as an individual has been submitted to us by a 5AVE customer and you wish to exercise any rights you may have to access, correct,  or delete such data, please inquire with our customer directly and 5AVE will respond to the customer’s request within 30 days.

CALIFORNIA PRIVACY RIGHTS

California residents may request certain information regarding 5AVE’s disclosures in the prior calendar year, if any, of their Personal Data to third parties for their own direct marketing purposes. If you are a California resident, you can make such a request by contacting us here. You must clearly state the nature of your request and provide sufficient information for us to process your request; at a minimum your name, email address, and California postal address.

YOUR CHOICES

At any time, you can unsubscribe from our marketing emails by accessing our unsubscribe page, or by clicking on the “unsubscribe” link located at the bottom of our marketing emails.

We reserve the right to send you account-related communications, such as service announcements and administrative messages, that are considered part of your 5AVE Service, and we do not offer you the option to opt out of these messages.

6. International Data Transfers

Because 5AVE offices and Services are globally dispersed, we may process information in many countries, and therefore your Personal Data may be transferred to servers located in different geographical areas. 5AVE processes information as both a data controller and a data processor, and we take the necessary steps in these distinct capacities to ensure the protection for international transfers in compliance with applicable data protections laws and regulations.

5AVE adheres to the principles of the EU-U.S. Privacy Shield Framework (the “Privacy Shield Framework”) as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of Personal Data transferred from the European Union and the United Kingdom to the United States. 5AVE has certified to the Department of Commerce that it adheres to the Privacy Shield Principles. If there is any conflict between the terms in this privacy policy and the Privacy Shield Principles, the Privacy Shield Principles shall govern. To learn more about the Privacy Shield program, and to view our certification, please visit https://www.privacyshield.gov.

Under the Privacy Shield Framework guidelines, 5AVE is responsible for the processing of the Personal Data it receives and subsequently transfers to a third party acting as an agent on its behalf. 5AVE adheres to the Privacy Shield Principles for onward transfers of Personal Data from the European Union and the United Kingdom, including the onward transfer liability provisions.

With respect to Personal Data received or transferred pursuant to the Privacy Shield Framework, 5AVE is subject to the regulatory enforcement powers of the U.S. Federal Trade Commission. In certain situations, 5AVE may be required to disclose Personal Data in response to lawful requests by public authorities, including to meet national security or law enforcement requirements.

5AVE commits to resolve complaints about our collection or use of your Personal Data as follows. Individuals in the European Union and United Kingdom can direct any inquiries or complaints by contacting us here. If you have an unresolved privacy or data use concern that we have not addressed satisfactorily, you may contact our U.S.-based third party dispute resolution provider (free of charge) at https://www.jamsadr.com/eu-us-privacy-shield. Under certain conditions, more fully described on the Privacy Shield website, you may invoke binding arbitration when other dispute resolution procedures have been exhausted.

7. Data Security and Integrity

The security of your Personal Data is important to us. We use robust security measures to protect the Personal Data submitted to us, both during transmission and once it is received. All information transferred within the 5AVE Bridge Service, customers’ deployed applications, and the 5AVE website(s) is automatically served through a secure connection (HTTPS). However, no method of transmission over the Internet, or method of electronic storage, is 100% secure. While 5AVE has implemented and will maintain appropriate security measures to protect your Personal Data, we cannot guarantee its absolute security. We use commercially acceptable means to maintain the integrity of your Personal Data and have implemented physical, technical, and administrative safeguards to protect your data from unauthorized access, use, disclosure, and destruction.

8. Data Retention

We retain Personal Data that you provide to us where we have an ongoing legitimate business need to do so (for example, as long as is required in order to contact you about 5AVE Services, or as needed to comply with our legal obligations, resolve disputes and enforce our agreements).

We regularly review collected data and set data retention policies in order to delete data in accordance with contractual agreements, legal obligations and applicable data protection laws.

9. Children and Privacy

5AVE Services are intended for adults. We do not intentionally or knowingly collect Personal Data from children as defined by applicable law, and we request that children not submit any Personal Data to us. If you are aware that your child or any other child is using our Services, please contact us here.

10. Do Not Track Response

Certain web browsers may allow you to enable a “do not track” option that sends signals to the websites you visit indicating that you do not want your online activities tracked. However, some browsers with the “do not track” option selected may still accept cookies. Because there is no industry standard for how companies should respond to “do not track” signal, we do not respond to “do not track” signals at this time. If we do so in the future, we will modify this statement accordingly.

11. Material Changes

We reserve the right to make changes to this statement at any time to reflect changes to our data practices, so please review it frequently. Should we make material changes to the manner in which your Personal Data is processed, we will notify customers via email (sent to the email address specified in the user profile) and also post a notice on our website and Services.

12. Contact 5AVE

To comment or ask questions about this Privacy Statement and our data practices, or if you need to update, change or remove your information, contact us here or at the address below:

5AVE, Inc.
ATTN: Privacy
201 SC Elastic RD
Landrum, SC 29356
privacy@5AVE.com
800-922-9663