Vivido Terms of Use Agreement

 

Welcome to the Vivido website (the “Website”).  Vivido provides a venue in which SAP users can purchase white papers and video tutorials concerning various items of interest to SAP users, as well as consulting services from consultants who have experience working with SAP systems.

BY ACCEPTING THIS VIVIDO TERMS OF USE AGREEMENT (“AGREEMENT”)  BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ONLINE REQUEST FOR SERVICES THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING OR USING ANY PRODUCTS OR SERVICES AVAILABLE ON THE WEBSITE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement was last updated on October 15, 2009. It is effective between You and Us as of the date on which it is deemed to have been accepted by You in accordance with the preceding paragraph.

1.                  DEFINITIONS

1.1              “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2              “Deliverables” means any deliverables specified in a Service Engagement for delivery by Vivido to You.

1.3              “Online Request for Remote Help” means Vivido’s online request for purchasing Remote Help hereunder, which includes a description of the Services that You wish to hire Vivido to perform.  Once an Online Request for Remote Help is accepted as set forth in this Agreement, it is automatically converted into a “Service Engagement.”  Service Engagements shall be deemed incorporated herein by reference.

1.4              “On-Site Services” are Services provided by Us or Our consultants at Your site or location.

1.5              “Products” means white papers, video tutorials, or other content that You may purchase from Us pursuant to this Agreement.

1.6              “Services” means those services that are described in a Service Engagement to be performed or actually performed for You by Us or by a consultant engaged by Us pursuant to this Agreement.

1.7              “We,” “Us” or “Our” means Vivido Labs, Inc.

1.8              “You” or “Your” means You, or the company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity.

1.9              “Your Data” means all electronic data or information submitted by You in connection with the Services.

2.                  YOUR ACCOUNT

In order to purchase Products or Services, You must become a user (“User”) be registering on the Website for a Vivido Account (an “Account”).  When You sign up to become a User, You will be asked to choose a password for Your Account.  You are entirely responsible for maintaining the confidentiality of Your password.  You agree that You will only share Your password with Your employees  and employees of Your Affiliates (“Authorized Users”).  You agree to notify Us immediately if You suspect any unauthorized use of Your Account or access to Your password.  Notwithstanding anything herein to the contrary, You acknowledge and agree that You are responsible for any and all use of Your Account (including any transactions through Your Account).

3.                  PRODUCTS AND SERVICE

3.1              Purchase of Products.  Our Website contains a description of the Products that You may purchase pursuant to this Agreement.

3.2              Purchase of Services.  You may purchase Services hereunder by submitting an Online Request for Remote Help to Us.  We can accept or reject the Online Request for Remote Help.  Alternatively, either We or one of Our consultants may contact You to obtain more information about Your Online Request for Remote Help and then We or Our consultant may provide You with a modified version of the Online Request for Remote Help, in which case You must accept such modified Online Request for Remote Help before We will proceed.  Once We have agreed upon the terms of an Online Request for Remote Help, the Online Request for Remote Help will become the Service Engagement.

4.                  FEES AND PAYMENT FOR PURCHASED SERVICES

4.1              User Fees.  You shall pay all fees for Products that You purchase and for any Services specified in all Service Engagements. Fee estimates included in any Service Engagement are preliminary estimates only and do not cap Your liability for fees actually incurred by Us or Our consultants in providing the Services.  Except as otherwise specified herein or in a Service Engagement, fees are quoted and payable in United States dollars,  fees are based on Products and/or Services purchased, payment obligations are non-cancelable, and fees paid are non-refundable.

4.2              Invoicing and Payment.  You will provide Us with valid and updated credit card information for the payment of all fees due hereunder, or with a valid alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Products purchased and for all Services listed in any Service Engagements.  Such charges shall be made in advance of Product or Services delivery or in accordance with any different billing frequency stated in the applicable Service Engagement. If a Service Engagement specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with such Service Engagement. Unless otherwise stated in a Service Engagement, invoiced charges are due net 30 days from the invoice date. You are responsible for providing Us with complete and accurate billing and contact information in the Service Engagements.

4.3              Vivido Prepayment Credit.  You may purchase a  prepayment credit.( “Vivido Cash”) on Our website by indicating the dollar amount of the Vivido Cash that You wish to purchase and mailing a check in the amount of purchase to Us at JP Morgan Chase, 2500 Westfield Drive, Il1-6030, Elgin IL-60124; Attn: Vivido Labs Inc., Dept. 5952.  The Vivido Cash is not usable until Your payment check has cleared Vivido’s bank. The Vivido Cash will be decremented by Vivido as Products and Services are ordered by You. The Vivido Cash is for use within the twelve month period from the date of purchase and will expire at the end of such twelve month period with no refunds for any unused portion of the Vivido Cash.  Currently, the Vivido Cash can only be used by Your or Your Authorized Users to purchase Products or Services. 

4.4              Overdue Charges.  If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition Our acceptance of future Online Requests for Services on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).

4.5              Suspension of Service and Acceleration.  If any amount owing by You under this or any other agreement for any Products or Services provided by Us is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under this Agreement and all other agreements so that all such obligations become immediately due and payable, and We may suspend Our services to You until such amounts are paid in full.

4.6              Payment Disputes.  We shall not exercise Our rights under Section 4.4 (Overdue Charges) or 4.5 (Suspension of Service and Acceleration) if You have notified Us in writing that the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.

4.7              Expenses.  In the event that We are required to provide On-Site Services approved by You, You agree to pay actual travel expenses (economy class air travel or other mode of travel), and a fixed per diem of U.S. $260.00 per day to cover hotel, meal, rental car, and other out-of-pocket expenses incurred in connection therewith.

4.8              Taxes.  Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

5.                  PROPRIETARY RIGHTS

5.1              Reservation of Rights.  Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Website, Products, Services, and Deliverables, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in Section 5.2 (License to the Deliverables).

5.2              License to the Deliverables.  Upon payment in full for the applicable Products or Services and subject to the terms and conditions of this Agreement, We hereby grant You a royalty-free, worldwide, transferable, irrevocable, perpetual license to use any such Products, and any Deliverables delivered to You in connection with such Services, solely for Your internal business purposes. Notwithstanding the foregoing, You agree that You will not sell or use any screenshots included in the Products without authorization from Vivido and You hereby grant Vivido the right, upon reasonable notice, to audit and inspect Your use of the Products to verify Your compliance with the foregoing. 

5.3              Suggestions.  You hereby grant to Us a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the Products or Services, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by You and/or Your Authorized Users, relating to the Website, Products or  Services.

6.                  CONFIDENTIALITY

6.1              Definition of Confidential Information.  As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Our Confidential Information shall include the Products and the Services, and Confidential Information of each party shall include the terms and conditions of this Agreement and all Service Engagements, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.

6.2              Protection of Confidential Information.  Except as otherwise permitted in writing by the Disclosing Party,  the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and the Receiving Party shall only disclose the Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors and agents who need such access to perform obligations or exercise rights under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

6.3              Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party to the extend such disclosure is compelled by law , provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

6.4              Privacy Policy.  Use of the Website is also governed by Our Privacy Policy, a copy of which is located at VividoLabs.com, and which is incorporated herein by reference.

7.                  WARRANTIES AND DISCLAIMERS

7.1              Our Warranties.  We warrant that the Services shall be provided in accordance with industry standards for such services. We will reperform any non-conforming Service that You report to Us in writing within thirty (30) days after performance of such Services.  The foregoing constitutes Your sole and exclusive remedy, and Our sole and exclusive liability, for breach of warranty and any claims related to Our failure to perform the Services.

7.2              Mutual Warranties.  Each party represents and warrants that it has the legal power to enter into this Agreement.

7.3              Your Warranty.  You warrant that You are a valid current licensee of SAP software products and that You are currently using SAP software products in production mode to run Your business.

7.4              Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 7.1 (OUR WARRANTIES), 7.2 (MUTUAL WARRANTIES), AND 7.3 (YOUR WARRANTY),  NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8.                  MUTUAL INDEMNIFICATION

8.1              Indemnification by Us.  We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that Your use of the Products, Services or any Deliverables purchased by You, when used as permitted in this Agreement, infringes or misappropriates the intellectual property rights of a third party, and We shall pay for any damages finally awarded against You, or agreed by Us in settlement of, any such Claim; provided that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense, in the defense and settlement of the Claims.

8.2              Indemnification by You.  You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.

8.3              Exclusive Remedy.  This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any and all claims of intellectual property infringement.

9.                  LIMITATION OF LIABILITY

9.1              Limitation of Liability.  IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE PRICE PAID BY YOU FOR THE PRODUCT OR SERVICE ENGAGEMENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES).

9.2       Exclusion of Consequential and Related Damages.  IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10.              TERM AND TERMINATION

10.1          Term of Agreement.  This Agreement commences on the date it is deemed accepted by You and continues until terminated by either party in accordance with the provisions hereof.

10.2          Termination Without Cause.  Either party may terminate this Agreement without cause, effective immediately upon notice to the other party, at any time when there are no unperformed Service Engagements  or unpaid balances due hereunder.

10.3          Termination for Cause.  A party may terminate this Agreement for cause: (a) upon 30 days written notice to the other party of a material breach by such party provided that such breach  remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

10.4          Refund of Payment upon Termination.  Upon any termination for cause by You, We shall refund to You any unused Vivido Prepayment Credits as of the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees owed by You to Us as of the effective date of termination.   For avoidance of doubt, in no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

10.5          Return of Your Data.  Upon request by You made within 30 days after the  date of completion of a Service Engagement, We will return to You Your Data. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

10.6          Surviving Provisions.  Section 4 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.3 (Refund of Payment upon Termination), 10.4 (Return of Your Data), and 11 (General Provisions) shall survive any termination or expiration of this Agreement.

11.              GENERAL PROVISIONS

11.1          Export Compliance.  Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

11.2          Relationship of the Parties.  The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.3          No Third-Party Beneficiaries.  There are no third-party beneficiaries to this Agreement.

11.4          Waiver and Cumulative Remedies.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.5          Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.6          Attorney Fees.  You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4.2 (Invoicing and Payment)

11.7          Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Service Engagements), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any unused Vivido Prepayment Credits. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.8          Force Majeure.  Any delay in the performance of any duties or obligations of either party will not be considered a breach of the Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, terrorism, governmental act, failure of common carriers (including Internet service providers), acts of God, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

11.9          Notice.  Any notice to Vivido must be delivered in writing to Vivido at the address listed below by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service.  Notice will be effective upon receipt by Vivido.

Vivido Labs, Inc.

3350 Scott Bldg. #2

Santa Clara CA 95054

Attention: CEO

 

11.10      Governing Law and Arbitration.

(a)               Governing Law.  This Agreement shall be governed by the laws of the State of California without giving effect to ay conflict of laws principles that may provide the application of the law of another jurisdiction  You agree to submit to the personal jurisdiction of the state courts located within Santa Clara County and the federal courts in the Northern District of California for the purpose of litigating all such claims or disputes.

(b)               Arbitration.  If any dispute, controversy or claim arises between the parties under, out of, or in relation to this Agreement, including any dispute concerning the formation, construction, interpretation or breach of this Agreement or a party’s performance of its obligations hereunder (“Dispute”), the parties shall attempt in the first instance to resolve the Dispute through mutual good faith consultation which may be escalated progressively to senior management levels.  If the Dispute is not resolved in this manner within forty-five (45) days of a party’s notice of a Dispute, then any party may serve a notice on the other party requiring the Dispute to be submitted to arbitration as follows: The arbitration shall be administered by the San Jose, California office of JAMS (the “Administrator”).

(i)                 The Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the “Rules”).  To the extent there is any conflict between the provisions set forth in this Section 11.10 and any procedural or other rules issued by the Administrator, this Section 11.10 will control.  The location of the arbitration will be San Jose, California USA.

(ii)               The Dispute(s) shall be submitted to a single arbitrator (“Arbitrator”) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator.  The Administrator shall provide such list to the parties 10 days after request by either party.  Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator.

(iii)             The arbitral proceedings, and all pleadings and written evidence will be in the English language.  Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof.  The English language version will control.

(iv)             Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. 

(v)               The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of this Agreement.  Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction.  The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance.  The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.

(vi)             Notwithstanding the foregoing, either party may proceed directly to any court of competent jurisdiction to seek protection or enforcement of its intellectual property rights and/or to seek injunctive relief or other equitable relief. 

(c)                Entire Agreement.  This Agreement, including all exhibits and addenda hereto and all Service Engagements, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Service Engagement, the terms of this Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Service Engagements) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.