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Nirvaha Corporation Software and Services Agreement for OneClick Commissions
Customer agrees that the terms of this Software and Services Agreement are like any written or signed agreement. By purchasing a subscription to the Software Service (as defined below) or by logging into Nirvaha.com, you agree to be bound by the terms of this Agreement.
Both parties agree to the following terms:
Definitions
IP: Inventions, patent applications, patents, design rights, copyrights, trademarks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world
Technology: All audio and visual information, text, images, documents, software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information contained or made available to Customer in the course of using the Software Service.
User(s): Customers employees, representatives, consultants, contractors or agents who are authorized to use the Software Service and have been supplied user identifications and passwords by Customer or by Nirvaha at Customers request.
Software Service: Nirvaha`s online quoting, billing, and commission application and other applications, data reporting and analysis, (or other corporate ERP software and / or services identified by the parties developed, operated, and maintained by Nirvaha, accessible via http://app.nirvaha.com or another designated web site or IP address, and other online or offline products and services provided to Customer by Nirvaha.
License Grant & Restrictions:
Nirvaha hereby grants to Customer a non-exclusive, non-transferable, worldwide right to use the Software Service, solely for Customers own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer are reserved by Nirvaha and its licensors. If Customer is a direct competitor of Nirvaha, Customer may not use the Software Service except with Nirvaha`s prior written consent. In addition, Customer may not access the Software Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Customer agrees that product email functionality will be used solely for the business purposes intended in the delivery of quotes, orders, invoices, and statements, or by other additional functionality as defined between the Customer and Nirvaha. Customer agrees not to (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software Service or the Content in any way; (ii) modify or make derivative works based upon the Software Service or the Content or (iv) reverse engineer or access the Software Service in order to (a) build a competitive product or Software Service, or (b) build a product using similar ideas, features, functions or graphics of the Software Service. Customer agrees that only one User may use one account of the Software Service and that the number of Users using the Software Service shall not exceed the number of Users Customer has been assigned, provided that Customer may replace any User with any other User at any time.
Payments:
Customer agrees to pay Nirvaha as described in the quote above. Customer agrees to pay within 15 days of invoicing or have their credit card charged by Nirvaha as described in the quote above starting on the Effective Date till the agreement is terminated under the section titled Termination.
Termination:
This Agreement commences on the Effective Date on the customer-signed quote and continues for the minimum period defined in the quote (hereafter “Initial Term”) under the business terms contained in the quote table. Customer may terminate this agreement effective any date after Initial Term by providing 15 days advance notice.
After Initial Term, unless terminated by Customer pursuant to this section, this Agreement shall continue month to month under Nirvaha`s business terms each month.
Termination for breach by Nirvaha
Customer may also terminate this agreement at anytime for breach of the agreement by Nirvaha.
Termination for breach by Customer
Nirvaha may terminate this agreement and disable Customers Users accounts at any time for breach of the agreement by Customer (including without limitation, non-payment by Customer) and Nirvaha shall have no responsibility to retain Customer Data if such breach is not cured by Customer in 30 days.
After any termination , Nirvaha shall not have any further obligation to retain the Data and may delete such data, provided that if termination has not occurred due to a breach by Customer, if Customer requests a copy of Data along with the notice of termination, Nirvaha shall provide Data to Customer within a reasonable time frame.
Data Ownership:
Customer shall own any data or information that Customer provides to Nirvaha during the term of this agreement, except for bug reports or product issues. Upon termination (other than for breach of this agreement by Customer) and Customers request in writing, Nirvaha will provide Customer a file of the Data within a reasonable time frame.
Intellectual property rights:
Nirvaha (and its licensors, as applicable) shall own all right, title and interest, including all IP, in and to the Technology and the Software Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Software Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Software Service, the Technology or IP.
Marketing Rights:
Nirvaha may reasonably use Customers name and logo for Nirvaha`s marketing purposes provided that if Customer is not reasonably satisfied with customer service provided by Nirvaha then Customer may require Nirvaha to stop using Customer`s name and logo. Customer may provide quotes to Nirvaha for marketing and promotional purposes with consent from customer not to be unreasonably withheld.
Customer Responsibilities:
Customer is responsible for all activity occurring under the accounts for Users and agrees to treat all information related to Technology and Software Service as confidential and shall not disclose such information outside of Customers Users. Customer shall: (i) notify Nirvaha of any unauthorized use of any password or account; (ii) report to Nirvaha immediately and use reasonable efforts to stop immediately any copying or distribution of Technology.
Nirvaha Responsibilities:
Nirvaha agrees to treat Data as confidential and shall not disclose such information outside of Nirvaha employees and consultants. Nirvaha shall: (i) notify Customer of any unauthorized use of Data; (ii) report to Customer immediately and use reasonable efforts to stop such unauthorized use.
Service levels:
Nirvaha will use commercially reasonable efforts to make the Software Service available with an Annual Uptime Percentage of at least 99.9%. Customer agrees that the maximum disk space usage per user is limited to 1GB. Nirvaha agrees that additional space will be available to Customer for purchase at a price not to exceed reasonable market prices.
Representations:
Each party represents and warrants that it has authority to enter into this Agreement.
Indemnification:
Customer shall indemnify and hold Nirvaha, its licensors and each such party`s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys` fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customers representations and warranties; or (iii) a claim arising from the breach by Customer or Customers Users of this Agreement, provided in any such case that Nirvaha (a) promptly gives written notice of the claim to Customer; and (b) provides to Customer all available information and reasonable assistance.
Nirvaha shall indemnify and hold Customer and Customers parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys` fees and costs) arising out of or in connection with: (i) a claim alleging that the Software Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Nirvaha of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Nirvaha; provided that Customer (a) promptly gives written notice of the claim to Nirvaha; (b) provides to Nirvaha all available information and reasonable assistance. Nirvaha shall have no indemnification obligation, and Customer shall indemnify Nirvaha pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Software Service with any of Customers products.
Nondisparagement:
Both parties agree that they will not disparage each other or their products, services, agents, representatives, directors, officers, shareholders, attorneys, employees, vendors, affiliates, successors or assigns, or any person acting by, through, under or in concert with any of them, with any written, electronic, online or oral statement. Nothing in this paragraph shall prohibit either party from providing truthful information in response to a subpoena or other legal process.
Disclaimer of Warranties:
NIRVAHA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE SERVICE OR ANY CONTENT. NIRVAHA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SOFTWARE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SOFTWARE SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SOFTWARE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SOFTWARE SERVICE OR THE SERVER(S) THAT MAKE THE SOFTWARE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SOFTWARE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY NIRVAHA AND ITS LICENSORS. NIRVAHA`S SOFTWARE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NIRVAHA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability:
IN NO EVENT SHALL EITHER PARTY`S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SOFTWARE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SOFTWARE SERVICE, OR LOSS OF OR INCORRECT DATA, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SOFTWARE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY`S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Export Control:
This site provides Software Services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The User of Software Service acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury`s List of Specially Designated Nationals or the U.S. Department of Commerce`s Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Software Service, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000 Nirvaha and its licensors make no representation that the Software Service is appropriate or available for use in other locations. If Customer uses the Software Service from outside the United States of America, Switzerland and/or the European Union, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the Technology, nor any information acquired through the use of the Software Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
Notices:
Nirvaha may give notice by means of an electronic mail to Customers e-mail address on record in Nirvaha`s account information, or by written communication sent by first class mail or pre-paid post to Customers address on record in Nirvaha`s account information. Such notice shall be deemed to have been given when received by Customer.
Customer may give notice by means of an electronic mail to Nirvaha`s e-mail address on record with Customer, or by written communication sent by first class mail or pre-paid post to the current address available on Nirvaha`s web site, currently such address being:
Nirvaha Corp, 875 124 Ave NE, Suite 203, WA 98005
Assignment:
This Agreement may not be assigned by either party unless such assignment is to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger, provided that if either party assigns this agreement to a direct competitor of the other party, then the other party can terminate this agreement and require the first party to return all of its IP and Data.
Governing law, Venue:
This agreement shall be governed by the laws of the state of Washington. Both parties agree that they shall file any claim, suit, or take any action solely in the jurisdiction of King County, in the state of Washington. The parties agree that in the event of a dispute each party shall be responsible for its own fees and expenses (including attorney`s fees).
Entire agreement:
This agreement constitutes the entire agreement between the parties and replaces and supersedes all prior agreements, negotiations, discussions, whether written or oral regarding the subject matter of this agreement.
Severability:
If any provision(s) of this agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
Independent relationship:
No joint venture, partnership, employment, or agency relationship exists between Customer and Nirvaha as a result of this agreement or use of the Software Service.
Waivers:
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.
Force Majeure:
Neither party will be liable for any delay or failure to perform any of its obligations hereunder by reason of fire, explosions, earthquakes, storms, flood, wind, drought and acts of God or the elements; court orders; acts, delays and failures to act by civil, military or other governmental authority; failures of suppliers, service providers or other third parties; strikes, lockouts, labor disputes, riots, insurrections, terrorism, sabotage and war; breakdown or destruction of, or damage or casualty to, any equipment, facilities or other property not caused by the party, unavailability of materials, supplies, parts, equipment, personnel or other necessary items on commercially reasonable terms; interruption, suspension, curtailment or other disruption of utilities; or other matters beyond the party`s reasonable control.