Servora User Agreement

IMPORTANT - READ CAREFULLY: THIS Servora USER AGREEMENT (THE "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU AND ANY COMPANY YOU REPRESENT (COLLECTIVELY, "YOU AND YOUR") AND SERVORA INC. REGARDING THE Servora On-Demand SERVICE (THE "On-Demand Service") AND ALL OTHER SERVICES PROVIDED BY Servora UNDER THIS AGREEMENT ("SERVICES"). PLEASE READ THE AGREEMENT CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN SECTION 5 BELOW OR IN AN APPLICABLE ORDER FORM HERETO, YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE ON-DEMAND SERVICE.

1. Licenses from Servora. Subject to the terms of this Agreement, Servora grants to you during the Subscription Term of the applicable Order Form the nontransferable, nonexclusive right to permit those individuals authorized by you or on your behalf ("Users") to use the On-Demand Service and any materials developed by Servora or its third party suppliers ("Third Party Providers") and delivered to you in the course of performing Services (the "On-Demand Materials") solely in connection with the On-Demand Service, all solely for your own internal business operations. The rights granted to you in this Agreement are subject to all of the following agreements and restrictions: (i) the maximum number of Users that you authorize to access the On-Demand Service shall not exceed the number of User licenses you have purchased, as evidenced in the Order Form; (ii) User licenses cannot be shared or used by more than one individual User; (iii) you shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the On-Demand Service or the On-Demand Materials available to any third party other than an authorized user (iv) you shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the On-Demand Service or On-Demand Materials or access or use the On-Demand Service or On-Demand Materials in order to build a similar or competitive product or service; (v) except as expressly stated herein, no part of the On-Demand Service or On-Demand Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (vi) you shall not disclose any review of the On-Demand Service, including but not limited to the results of any performance tests, to any third party without Servora's prior written approval; (vii) you agree to make every reasonable effort to prevent unauthorized third parties from accessing the On-Demand Service; and (viii) you acknowledge and agree that Servora or its Third Party Providers shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the On-Demand Service and the On-Demand Materials and any suggestions, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the On-Demand Service or the On-Demand Materials.

2. Trial Services. You may order Trial Services for the Servora On-Demand Service, which you may use for trial, non-production purposes only. You may not use the Trial Services to provide or attend third party training on the content and/or functionality of the On-Demand Service. The Trial Period will be 30 days from the Effective Date of the Order Form. Upon lapse of the Trial Period, your usage rights shall terminate. If you decide to use any of the On-Demand Service after the 30 day Trial Period, you must purchase the On-Demand Service from Servora via a separate Order Form. The Trial Services provided for trial purposes are provided "as is" and Servora does not provide technical support or offer any warranties for these services.

3. Your Data. Servora will protect any data provided to Servora by you in the course of using the On-Demand Service or Services. ("Your Data") as confidential in accordance with Section 12. You acknowledge and agree that Your Data may be transferred or stored outside of the country or other jurisdiction where you and your Users are located. In addition, you acknowledge and agree that it is your obligation to inform third parties of the use, processing or transfer of Your Data and to ensure that such third parties have given their consent to such use, processing, and transfer as required by all applicable data protection legislation. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Your Data. Servora's practices concerning the privacy of Your Data in connection with the On-Demand Service is set forth in Servora's Privacy Policy available at http://www.servora.com/corp/default.exec=privacy.

4. Billing and Payment. You agree to pay in advance for all products and services ordered under this Agreement except as set forth in an Order Form. All fees under this Agreement are irrevocable and nonrefundable. Servora's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed on an Order Form. You will reimburse Servora for reasonable expenses related to providing the Services. You will provide Servora with valid and updated credit card or approved purchase order information and complete and accurate billing and contact information. If you provide credit card information to Servora, you authorize Servora to bill such credit card (a) at the time that you order any products or services, for all products and services set forth in the Order Form, and (b) at the time of any renewal, for the amount charged for any renewal Subscription Term(s) as set forth in Section 5. If Servora, in its discretion, permits you to make payment using a method other than a credit card, Servora will invoice you at the time of the initial Order Form and approximately one month in advance of the start of any renewal or subsequent billing period. All amounts invoiced hereunder shall be due within 30 days of the date of the invoice. Servora's suspension of the On-Demand Service based on your failure to make payment shall not excuse you from its obligation to make payment(s). In the event your account is 30 days or more past due, any and all unpaid payments set forth in an applicable Order Form shall accelerate and become due and payable, notwithstanding any limitation set forth in Section 10. After payment of the total accelerated amount, you shall be entitled to restoration of the On-Demand Service for the remainder of the Subscription Term.

5. Term and Termination. This Agreement is valid for the Order Form to which the Agreement accompanies. The term of the On-Demand Service or other product or services offerings set forth in the Order Form hereunder shall commence upon the date of enablement of the On-Demand Service (as identified in Servora's first invoice after execution of such Order Form), or as otherwise set forth in such Order Form, and shall continue for the period of time set forth in such Order Form (the "Subscription Term"). Except as otherwise provided in an Order Form, renewal charges will be equal to the then-current number of User licenses that have been purchased times the then-current User license fee and renewals will be subject to applicable policies and terms in effect at the time of renewal. In the event of any breach of this Agreement by either party, the non-breaching party shall have the right to terminate the Order Form for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail, provided however that if Servora is the non-breaching party, Servora may immediately suspend your password, account, access to or use of the On-Demand Service during such cure period. Upon any termination of the Order Form, your right to access and use the On-Demand Service and the Services specified in the Order Form (including the On-Demand Materials) shall terminate. At your request, within 30 days of termination of the Order Form, provided you are not in breach of the Agreement or such Order Form, Servora will make available to you a file of Your Data then in its possession. You agree and acknowledge that Servora has no obligation to retain Your Data and that Your Data may be irretrievably deleted after 30 days following the termination of the Order Form or if your account is 30 days or more past due. The following provisions shall survive any termination of this Agreement: Section 5 9, 10, 12, 15 and 21.

6. Third Party Web Sites. If you enter into correspondence with, purchases goods or services from, or participate in promotions of advertisers or sponsors other than Servora through the On-Demand Service, any such activity, and any terms, conditions, warranties or representations associated with such activity, is governed solely by the terms between you and the applicable third party. Servora shall have no liability or obligation for, and does not endorse or accept any responsibility for, the contents or use of third party web sites or any transactions completed with third parties. Servora may provide such links only as a convenience, and the inclusion of any link does not imply endorsement by Servora of the linked web site, notwithstanding the inclusion on such site of the trademarks of Servora or its Third Party Providers.

7. Customer Care Services. Servora and you shall comply with Servora's then-current Customer Care Services Policy. Servora shall have the right to modify the Customer Care Services Policy at any time in its sole discretion.

8. Representations, Warranties & Exclusive Remedy. Each party represents and warrants that it has the power and authority to enter into this Agreement. Servora warrants that (a) the On-Demand Service will perform substantially in accordance with its online documentation under normal use and (b) the Services will be provided in a manner consistent with generally accepted industry standards. You must notify Servora of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies. For any breach of the express warranty for Services as set forth above, your exclusive remedy shall be the reperformance of the deficient Services, and if Servora is unable to reperform the deficient Services as warranted, you shall be entitled to recover the portion of the fees paid to Servora for such deficient Services, and such refund shall be Servora's entire liability.

9. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8 ABOVE, SERVORA AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE ON-DEMAND SERVICE, THE ON-DEMAND MATERIALS, AND THE SERVICES INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF SERVICE. SERVORA AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE ON-DEMAND SERVICE, THE ON-DEMAND MATERIALS, OR THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE ON-DEMAND SERVICE, THE ON-DEMAND MATERIALS, OR THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SERVORA AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE ON-DEMAND SERVICE OR ON-DEMAND MATERIALS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE ON-DEMAND SERVICE WILL MEET YOUR REQUIREMENTS; OR (C) THE ON-DEMAND SERVICE, ON-DEMAND MATERIALS, OR THE SYSTEMS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT NEITHER SERVORA NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE ON-DEMAND SERVICE AND ON-DEMAND MATERIALS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SERVORA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY SERVORA, THE ON-DEMAND SERVICE, THE SERVICES, AND THE ON-DEMAND MATERIALS ARE PROVIDED TO YOU ON AN "AS IS" BASIS.

10. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY OR THE THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, (EXCLUDING FEES UNDER THIS AGREEMENT), USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE ON-DEMAND SERVICE, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHERWISE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SERVORA AND THE THIRD PARTY PROVIDERS EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND IF SUCH LIABILITY RESULTS FROM YOUR USE OF A PARTICULAR PORTION OF THE, ON-DEMAND SERVICE, ON-DEMAND MATERIALS OR SERVICES UNDER THIS AGREEMENT, SUCH LIABILITY SHALL BE LIMITED TO THE FEES YOU HAVE PAID SERVORA FOR THE DEFICIENT PORTION OF THE ON-DEMAND SERVICE, ON-DEMAND MATERIALS OR SERVICES GIVING RISE TO THE LIABILITY. THE LIMITATION OF SERVORA'S LIABILITY SET FORTH IN THE PRIOR SENTENCE SHALL NOT APPLY TO SERVORA'S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 11 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.

11. Indemnities. If someone makes a claim against either you or Servora ("Recipient" which may refer to you or Servora depending upon which party received the Material), that any information, design, specification, instruction, software, data, or material ("Material") furnished by either you or Servora ("Provider" which may refer to you or Servora depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider will indemnify the Recipient against the claim if the Recipient does the following:
notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law); gives the Provider sole control of the defense and any settlement negotiations; and gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have violated someone else's intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any fees the Recipient may have paid for it and any unused, prepaid fees you have paid applicable to the terminated license or service. If you are the Provider and such return materially affects Servora's ability to meet its obligations under the relevant Order Form, then Servora may, at its option and upon 30 days prior written notice, terminate the Order Form. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider's user documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. Servora will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Servora. This section provides the parties' exclusive remedy for any infringement claims or damages.

12. Confidential Information. Each party may have access to information that is confidential to the other party ("Confidential Information"). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential. Confidential Information of Servora shall include the software programs provided as part of the On-Demand Service and the On-Demand Materials. Confidential Information of yours shall include Your Data. A party's Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party without reference to the other party's Confidential Information. The parties agree to use reasonable care to prevent disclosure of the other party's Confidential Information to any third party. The parties agree to hold each other's Confidential Information in confidence for a period of three years from the date of disclosure. Notwithstanding the foregoing, you acknowledge and agree that (1) Servora may disclose your Confidential Information to its Third Party Providers to the extent necessary to provide products or services under this Agreement, provided that Servora has a non-disclosure agreement in place with such Third Party Provider that protects such Confidential Information against disclosure in a manner no less protective than this Agreement, and (2) Servora's obligations regarding personally identifiable information and other information concerning you and your Users shall be governed by the terms of the then-current Privacy Policy available at http://www.servora.com/corp/default.cfm?exec=privacy. Further, Servora may identify you on its Servora's customer lists and in its marketing and advertising materials, and announce that you are a customer of the On-Demand Service, and reproduce your company name, logo, trademark, trade name, service mark, or other commercial designations in connection therewith. This Section 12 constitutes the entire understanding of the parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information.

13. Your Responsibilities. You will ensure that any use of the On-Demand Service and Services by you and your Users is in accordance with the terms of this Agreement, and that you obtain any consents required for Servora and its Third Party Providers to perform the On-Demand Service and Services under this Agreement. You are responsible for ensuring that your network and systems comply with specifications that Servora provides. Servora is not responsible for your network connections or for conditions or problems arising from or related to your network connections (e.g., bandwidth issues, excessive latency, network outages), or caused by the Internet.

14. Notices. Servora may give notice applicable to Servora's general On-Demand Service customer base by means of a general notice on the On-Demand Service portal and notices specific to you by electronic mail to your e-mail address on record in Servora's account information or by written communication sent by first class mail or pre-paid post to your address on record in Servora's account information. If you have a dispute with Servora or you wish to provide a notice under this agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Servora Inc.

15. Restrictions on Use. You agree not to use or permit use of the On-Demand Service or the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, "junk mail", "spam" or chain letters; (e) constitute an infringement or intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. Servora reserves the right to remove or disable access to any material that violates the foregoing restrictions or to terminate the On-Demand Service or the Services for a violation of your obligations under this section. Servora shall have no liability to you in the event that Servora takes such action. You agree to defend and indemnify Servora against any claim arising out of a violation of your obligations under this section.

16. Verification. At Servora's written request, you shall furnish Servora with a document signed by your authorized representative verifying that the On-Demand Service is being used pursuant to the provisions of this Agreement and the applicable Order Form. You are responsible for implementing reasonable means to monitor your compliance with the terms of this Agreement. Servora reserves the right to audit your use of the On-Demand Service at Servora's expense. Servora shall schedule any audit at least thirty (30) days in advance. Any such audit shall be conducted during regular business hours at your facilities and shall not unreasonably interfere with your business activities. If such audit reveals that you have underpaid fees to Servora, you shall promptly pay to Servora such fees at the prices set forth in the applicable Order Form.

17. Export. You agree that U.S. export control laws and other applicable export and import laws govern your use of the On-Demand Service, including technical data and Servora software programs. You agree that neither the On-Demand Service, On-Demand Materials, any Servora software programs nor any direct product thereof will be exported directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.

18. Force Majeure. Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either of us may cancel unperformed services upon written notice. This section does not excuse either of our obligations to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the On-Demand Service and/or Services provided.

19. Services Tools. Servora may use tools, scripts, software, and utilities (collectively, the "Tools") to review and administer the On-Demand Service, and to help resolve your service requests. The Tools will not collect, report or store any of Your Data residing in the On-Demand Service, except as necessary to troubleshoot service requests or other problems in the On-Demand Service. Since data collected by the Tools is current, the data may also be used to assist in managing Servora's product and service portfolio and for license management.

20. Statistical Information. Servora may compile statistical and performance information related to the provision of the On-Demand Service or the Services, and may make such information publicly available, provided that such information does not incorporate Your Data and/or identify your Confidential Information. Servora retains all intellectual property rights in such information.

21. General provisions. Any action related to this Agreement will be governed by California law and controlling U.S. federal law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction will not apply to this Agreement. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Order Form shall be subject to the exclusive jurisdiction of the state courts of Los Angeles, or Los Angeles counties, California. This Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with any applicable Order Form, represents the parties' entire understanding relating to the On-Demand Service, the Services and the On-Demand Materials, and supersedes any prior or contemporaneous, conflicting or additional, communications. The exchange of a fully executed Order Form by fax shall be sufficient to bind the parties to the terms and conditions of this Agreement and Order Form. The terms and conditions of this Agreement may only be amended by written agreement of the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Servora and you as a result of this Agreement or use of the On-Demand Service. You may not assign this Agreement without the prior written approval of Servora. Any purported assignment in violation of this section shall be void. Servora reserves the right to provide some or all of the On-Demand Service, On-Demand Materials or Services from locations, and/or through use of Third Party Providers worldwide. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of Servora's proprietary rights, no action regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued. Any rights not expressly granted herein are reserved by Servora.