NIRVAHA CORPORATION

 SOFTWARE SERVICES

AGREEMENT

 

PLEASE READ THE FOLLOWING SOFTWARE SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE ACCESSING OR USING ONECLICKSTATEMENTS.COM THE (“SOFTWARE SERVICES”). THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SOFTWARE SERVICES.  BY CLICKING ON THE “CREATE ACCOUNT” BUTTON OR BY ACCESSING OR USING THE SOFTWARE SERVICES, YOU HAVE INDICATED THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND ACCEPT ALL OF ITS TERMS.  If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “You”, “Your” and “Customer” will refer to that company or other legal entity.  If you do not accept all the terms of this Agreement, then you have no right to access or use the Software Services. 

1.  DEFINITIONS

 

Account” means Your Account through which you login, access and use the Software Services.  “Authorized User” means You, Your employees, consultants, contractors, or agents who may use the Software Services on Your behalf and whose use of the Software Services will be subject to the terms and conditions of this Agreement. “Customer Inputs” means proprietary data and information input by You or by any Authorized Users into, and stored by, the Software Services.  “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world. “Software Services” means Nirvaha’s OneClickStatements.com statement application  developed, operated, and maintained by Nirvaha, accessible at http://oneclickstatements.com Or http://oneclick.nirvaha.com

2. SOFTWARE SERVICES

 

2.1 Software Services.  Subject to Your compliance with the terms and conditions of this Agreement, Nirvaha Corporation (“Nirvaha”) will make the Software Services available to You. You may access and use the Software Services solely for Your internal business purposes and You may not resell the Software Services without prior written permission from Nirvaha.

 

2.2 Restrictions. You will not attempt to interfere with or disrupt the Software Services. You will not allow access to or use of the Software Services by anyone other than Authorized Users (defined above). Each Authorized User must have his or her own Account to access the Software Services. You will not: (a) copy, modify or distribute any portion of the Software Services; (b) rent, lease, or provide access to the Software Services on a time-share or service bureau basis, or otherwise distribute or make the Software Services available to third parties, and (c) transfer any of Your rights hereunder to any third party. You acknowledge that the Software Services constitute and contain valuable trade secrets of Nirvaha and its licensors, and, in order to protect such trade secrets and other interests, You agree not to disassemble, decompile or reverse engineer the Software Services or allow any third party to do so, except to the extent such restrictions are prohibited by law. You acknowledge and agree that Nirvaha does not monitor or police data transmitted through the Software Services, including, but not limited to Customer Inputs, and that Nirvaha will not be responsible for the content or results of any such transmissions. You understand and agree that You are solely responsible for all results obtained from Your use of the Software Services, including, but not limited to, results that are presented to You after inputting any Customer Inputs, and for all conclusions drawn therefrom. You agree and understand that any reliance on results obtained from the Software Services is at your own risk. You will use the Software Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, and You will not attempt to gain unauthorized access to the Software Services or its related systems or networks. You will not store via the Software Services (i) materials or information which may violate intellectual property rights or other proprietary rights of third parties, or which have been unlawfully obtained or (ii) materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You will keep confidential and not disclose to any third parties, and will ensure that Authorized Users keep  confidential and do not disclose to any third parties, any user identifications, Account numbers and Account profiles for the Software Services.  You may not access the Software Services if You are a direct competitor of Nirvaha, except with Nirvaha’s prior written consent.

2.3 Data Security and Storage.  Nirvaha will adopt adequate archival procedures to store the Customer Inputs (defined below). In the event of any loss or corruption of Customer Inputs, Nirvaha will use its commercially reasonable efforts to restore the lost or corrupted Customer Inputs.  Nirvaha will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Inputs caused by any third party.  NIRVAHA’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER INPUTS PURSUANT TO THIS SECTION 2.3 WILL CONSTITUTE NIRVAHA’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER INPUTS. You acknowledge and agree that the maximum disk space usage per Customer that Nirvaha makes available free of charge under this Agreement is one gigabyte (1 GB). Nirvaha agrees that additional space will be available to You for purchase at a price not to exceed reasonable market prices

3.  YOUR OBLIGATIONS

 

3.1 Marketing Support.  You grant to Nirvaha a non-exclusive, limited right to use Your name, trademarks, and logos (collectively, the “Customer Marks”) in the production of marketing materials identifying You as a Nirvaha customer.  Nirvaha will make all commercially reasonable efforts to adhere to Your trademark usage guidelines of the Customer Marks, provided that you provide such guidelines to Nirvaha in writing prior to Nirvaha’s use of the Customer Marks.  All goodwill developed from such use will be solely for Your benefit

3.2 Enforcement.  You are responsible for all activity occurring under Your Account.  You will ensure that all Authorized Users comply with this Agreement, including, without limitation, with Your obligations set forth in Section 2.2. You will promptly notify Nirvaha of any suspected or alleged violation of this Agreement including any unauthorized use of any password or Account or any other known or suspected breach of security. You will cooperate with Nirvaha with respect to: (a) investigation by Nirvaha of any suspected or alleged violation of this Agreement and (b) any action by Nirvaha to enforce this Agreement.  Nirvaha may suspend or terminate any Authorized User’s access to the Software Services upon notice to You in the event that Nirvaha reasonably determines that such Authorized User has violated this Agreement.   You will be liable for any violation of this Agreement by any Authorized User.

 

3.3 Telecommunications and Internet Services.  You acknowledge and agree that the use of the Software Services by You and by any Authorized Users is dependent upon access to telecommunications and Internet services.  You will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Software Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.  Nirvaha will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

 

4.  FEES.  In consideration for Nirvaha providing the Software Services, You will pay to Nirvaha all the applicable subscription fees and other charges, on a month-to-month basis. Please note that Nirvaha reserves the right to change pricing for the Software Services at any time.  At the end of 30 days from first (1st) payment, Nirvaha will automatically bill Your credit card on a recurring basis. If Your Account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Nirvaha reserves the right to suspend the Software Services provided to You, without liability to You, until such amounts are paid in full. You agree and acknowledge that Nirvaha has no obligation to retain Customer Inputs and that such Customer Inputs may be deleted from any server or archival records maintained by Nirvaha if Your Account is overdue for thirty (30) days or more. Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). You will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Nirvaha’s net income. All pricing terms other than those publicly disclosed on Nirvaha’s website are confidential, and You agree not to disclose them to any third party.

5.  PROPRIETARY RIGHTS.  Subject to the limited rights expressly granted hereunder, Nirvaha and its licensors exclusively own and retain all rights, title and interest in and to the Software Services (including all copies of any software used for the provision of the Software Services), including all Intellectual Property Rights (defined below) therein or relating thereto. At Your option, you may provide Nirvaha with feedback, comments, and suggestions for improvements relating to the Software Services (“Feedback”).  Nirvaha will exclusively own all rights, title and interest in and to the Feedback, and You hereby assign to Nirvaha all of Your right, title, and interest in the Feedback, including all Intellectual Property Rights therein or relating thereto, and, at Nirvaha’s request and expense, You will execute documents and take such further acts as Nirvaha may reasonably request to assist Nirvaha to acquire, perfect and maintain such Intellectual Property Rights in the Feedback.  You will exclusively own all rights, title and interest in and to all Customer Inputs. Customer Inputs are deemed Confidential Information under this Agreement.  All rights not expressly granted to You are reserved by Nirvaha.

6.  CONFIDENTIALITY

 

6.1   Definition and Exclusions. By virtue of this Agreement, the parties may have access to each other’s Confidential Information.  “Confidential Information”, as used in this Agreement, means any technical or business information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Nirvaha Confidential Information includes, without limitation, the Software Services and any software used for the provision of the Software Services, whether in source or executable code, documentation, nonpublic financial information, business plans, techniques, methods, processes, and the results of any performance tests of the Software Services.  Customer Inputs are deemed Your Confidential Information. Confidential Information will not include information that:  (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

 

6.2 Use and Nondisclosure.  During the Term and for a period of three (3) years after expiration or termination of this Agreement, neither party will make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each party will take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance.  Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein.  Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information. Furthermore, You acknowledge and agree that, upon expiration or termination of the Agreement, Nirvaha will destroy the Customer Inputs, and will have no other obligation to You regarding such Customer Inputs under this Agreement.

 

7.  WARRANTY

 

7.1 Warranty for Software Services.  Nirvaha warrants that (i) it has the authority to enter into this Agreement and (ii) the Software Services will not contain or transmit to You any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

7.2 Disclaimer.  You assume sole responsibility and liability for results obtained from the use of the Software Services and for conclusions drawn from such use, including with regard to present or future commissions decisions.  You will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Inputs. Nirvaha will have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Nirvaha by You, including, without limitation, Customer Inputs, in connection with the Software Services or any actions taken by Nirvaha at Your direction. Nirvaha will have no liability for any claims, losses or damages arising out of or in connection with the use by You or by any Authorized User of any third-party products, services, software or websites that are accessed via links from within the Software Services. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, NIRVAHA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE SERVICES.  WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, NIRVAHA DISCLAIMS ANY WARRANTY THAT THE SOFTWARE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.  NIRVAHA FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NIRVAHA FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NIRVAHA OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.

 

8.  TERM AND TERMINATION

 

8.1 Term.

 

The term of this Agreement is on a month-to-month basis commencing on the date of 1st payment by an Authorized User.

8.2 Termination.  Either party may terminate this Agreement for any or no reason at any time uponwritten notice to the other party. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within five (5) days following written notice specifying the breach

8.3 Rights and Obligations Upon Expiration or Termination.  Upon expiration or termination of this Agreement, You and Your Authorized Users right to access and use the Software Services will immediately terminate, You and Your Authorized Users will immediately cease all use of the Software Services, and You will return to Nirvaha and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to Nirvaha if applicable. Furthermore, upon expiration or termination of this Agreement, Nirvaha will cease use of the Customer Marks (as defined in Section 3.1); provided, however, that (a) Nirvaha will have a reasonable time to remove the Customer Marks from Nirvaha’s website as well as from any promotional materials, (b) Nirvaha will be entitled to distribute all of the promotional materials printed during the Term that include the Customer Marks, and (c) Nirvaha will not be required to remove any such printed materials from circulation. 

 

8.4 Survival.  Sections 1, 5, 6, 7, 8.3, 8.4, 9, 10 and 12 will survive any expiration or termination of this Agreement.

 

9.  INDEMNIFICATION

 

9.1 Indemnification by Nirvaha.  Nirvaha will defend (or settle) any suit or action brought against You to the extent that it is based upon a claim that the Software Services infringe or misappropriate the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against You.  Nirvaha’s obligations under this Section 9.1 are contingent upon: (a) You providing Nirvaha with prompt written notice of such claim; (b You providing reasonable cooperation to Nirvaha, at Nirvaha’s expense, in the defense and settlement of such claim; and (c) Nirvaha having sole authority to defend or settle such claim.  In the event that Nirvaha’s right to provide the Software Services is enjoined or in Nirvaha’s reasonable opinion is likely to be enjoined, Nirvaha may obtain the right to continue providing the Software Services, replace or modify the Software Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to You. THE FOREGOING STATES THE ENTIRE OBLIGATION OF NIRVAHA AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE SERVICES.  Nirvaha will have no liability under this Section 9.1 to the extent that any third-party claims described herein are based on use of the Software Services in a manner that violates this Agreement or the instructions given to You by Nirvaha.

 

9.2 Indemnification by You. You will defend (or settle), indemnify and hold  Nirvaha, its officers, directors and employees harmless, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that (i) a third party has suffered injury, damage or loss resulting from the use by You or by any Authorized User of the Software Services or (ii) the Customer Inputs infringe or violate the Intellectual Property Rights or other proprietary rights of a third party.  Your obligations under this Section 9.2 are contingent upon: (a) Nirvaha providing You with prompt written notice of such claim; (b) Nirvaha providing reasonable cooperation to You, at Your expense, in the defense and settlement of such claim; and (c) You having sole authority to defend or settle such claim.

 

9.3 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.

 

10.  LIMITATION OF LIABILITY.  EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 2.2., 3.2 and 9.2, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISENotwithstanding any other provisions of this Agreement, in no event will Nirvaha’s aggregate liability to You and any Third party in connection with this Agreement OR YOUR ACCESS TO AND USE OF THE SOFTWARE SERVICES exceed the total fees paid by You TO NIRVAHA IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, regardless of the form OR THEORY of THE claim or action IF YOU HAVE MADe any payments to nirvaha, or one hundred dollars ($100), if you have made no payments to nirvaha, as applicable.

11. Service levelsNirvaha will use commercially reasonable efforts to make the Software Services available with an annual uptime percentage of least ninety-nine and nine-tenths percent (99.9%).

12.  GENERAL

 

12.1 Governing Law.  This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of Washington, without regard to its conflict of law provisions.  Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in the King County. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

 

12.2 Waiver.  The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. 

 

12.3 Severability.  In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

 

12.4 Force Majeure.  Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

 

12.5 Compliance with Laws.  Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.

 

12.6   Export Laws.     You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Software Services nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.

 

12.7 Relationship Between the Parties.  Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties.  Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

 

12.8 Assignment.  Neither party may assign this Agreement without prior written consent unless in connection with a merger, acquisition, or sale of all or substantially all of Nirvaha’s or Your assets, and provided that the surviving entity has agreed to be bound by this Agreement.

 

12.9 Entire Agreement.  This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.  Any modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.

 

12.10   Equitable Relief.  You acknowledge that a breach by either party of any confidentiality or proprietary rights provision of this Agreement may cause that party irreparable damage, for which the award of damages would not be adequate compensation.  Consequently, either party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy will be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

 

12.11 No Third-Party Beneficiaries.  This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

 

12.12 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.

12.13 NoticeNirvaha may give notice to You by e-mail to Your e-mail address on record in Nirvaha’s Account information. You may give notice to Nirvaha by sending an e-mail to info@oneclickstatements.com.  All e-mail notices will be confirmed by certified mail.