Terms

IMPORTANT- PLEASE READ CAREFULLY:

This is a legal agreement between You (hereafter referred to as the “User”) and Savissimo, Inc. of Raleigh, North Carolina for use of the Client Feedback Tool service, including updates, used while this agreement is in force. The service, Client Feedback Tool, includes Internet delivered services, source code and associated printed, online or electronic documentation (collectively “Service”). By accessing, installing, copying or otherwise using the Service the User agrees to be bound by the terms of this contract.

SERVICE LICENSE

The Service is patented, protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. The Service is licensed, not sold. As used in this agreement, “use”, “used” or “using” means to access or otherwise benefit from using the functionality of the Service.

1. INVOICING, PAYMENT, TAXES

Savissimo, Inc. or an Authorized Reseller will invoice Licensee for the full License Fee or subscription fee specified in an Order Form, plus applicable taxes, payable within thirty (30) days after execution of this Agreement or subsequent Order Form. Software license sales are final and deemed accepted upon delivery. Savissimo, Inc. reserves the right to suspend the License if Licensee fails to pay License Fees due in accordance with this Agreement. For multi-year Term Licenses, the first invoice will be for either the first twelve months of the Term or the portion thereof to correspond with the term for other term products, at Savissimo, Inc.’s option. For Term License renewals, Savissimo, Inc. will invoice approximately thirty (30) days in advance of the expiration of the current term or the end of the current billing period. Except for adjustments related to increases in the applicable number of Named Users, the Term License Fee will not be increased during any twelve (12) month term. Term License Fees after the first year and for any renewals will be due and payable fifteen (15) days from the invoice date.

Delivery. Savissimo, Inc. will deliver Service, Software, Documentation, and Updates via electronic transmission (i) from a server in the United States.

Services. Unless otherwise agreed, during a Services engagement Savissimo, Inc. will submit monthly invoices to Licensee for Services furnished, except that Savissimo, Inc. will submit an invoice for Services upon completion of all Services expected to be performed in a given month. All Services invoices are payable within fifteen (15) days after invoice date. Each invoice will provide a breakdown and distribution of charges by name of the Consultant(s) (as defined below) who provided the Services, the hours charged (for Services performed on a time and materials basis) and the type and amount of expenses incurred. Upon request, Savissimo, Inc. will provide additional back-up documentation for expenses (such as itemized receipts), but will charge Licensee an administrative fee of six percent (6%) of the invoiced expenses. Additional details required by Licensee concerning the invoice or backup information will be specified in the SOW or other writing by the Licensee before Services commence.

Licensee will notify Savissimo, Inc. within fifteen (15) days after date of an invoice if there is a dispute about that invoice. Savissimo, Inc. will work in good faith with Licensee to promptly correct errors or resolve disputes. Licensee shall pay the undisputed portion of the invoice in full when due and notify Savissimo, Inc. in writing as to the nature and substance of any disputed portion.

Fees, costs and expenses described in this Agreement do not include any sales, use, personal property, duty, levy or similar government charge, value added or goods/services taxes. Savissimo, Inc. may list applicable taxes as separate items on Licensee’s invoice, and Licensee shall be responsible to pay and/or reimburse Savissimo, Inc. for all taxes (other than taxes based on Savissimo, Inc.’s income). If withholding taxes are imposed by any foreign government, Licensee shall remit such withholding taxes in accordance with applicable law, gross up the applicable payment amounts to ensure that Savissimo, Inc. receives the full amount of fees invoiced, and provide Savissimo, Inc. with evidence of withholding, if applicable. Savissimo, Inc. may invoice taxes unless Licensee has provided adequate evidence of exemption upon execution of this Agreement. (Note: Licensee is not permitted to resell the Software, so a resale certificate does not qualify as a tax exemption certificate unless specifically agreed in this Agreement or unless Licensee has a separate reseller agreement with Savissimo, Inc.) Savissimo, Inc. shall not issue credits for taxes billed before Licensee provides evidence of a valid exemption. Licensee shall be liable to Savissimo, Inc. for any costs, fees and taxes that Savissimo, Inc. incurs due to any invalid tax exemption claimed by Licensee.

All fees and other charges referred to in the Agreement will be paid in the currency specified in the Order Form, or SOW. Unless otherwise specified, the currency is US Dollars. All payments made under this Agreement are non-refundable, except as specifically provided in this Agreement.

Savissimo, Inc. may charge interest at the rate of one and one-half percent (1.5%) per month, eighteen percent (18%) per annum, or at the highest rate allowed by law, whichever is less, from the date due until paid. Savissimo, Inc. may suspend Licenses, maintenance, Services or other performance if Licensee fails to make full payment of any undisputed amount owed under this Agreement within ten (10) days after written notice from Savissimo, Inc.

Licensee may separately arrange with a third party to make some or all payments to Savissimo, Inc. required by this Agreement. Licensee must notify Savissimo, Inc. and provide reasonable documentation to Savissimo, Inc. of the arrangement requested before Savissimo, Inc. will invoice a third party directly. If Savissimo, Inc. has not received notice and documentation of a third party payment arrangement prior to invoicing, Savissimo, Inc. will not re-issue invoices. If a third party fails to make any undisputed payment when due, Licensee shall promptly pay Savissimo, Inc. and Savissimo, Inc. may invoice Licensee directly for all amounts due.

2. GRANT OF LICENSE

Subject to the terms below, Savissimo, Inc. hereby grants User a non-exclusive, non-transferable license to use the Service.

As a User bound by this agreement, Service may be used on one or more computers or a computer network, so long as (i) user is the sole User of the Service; (ii) login credentials or password are not given to any other person for use; (iii) the service is not distributed to others without first obtaining the required licenses, where applicable.

A User (i) may not reverse engineer, decompile, or disassemble the Service or attempt to discover the source code; (ii) may not modify, or create derivative works based upon, the Service in whole or in part without the express written consent of Savissimo, Inc.; (iii) may not distribute copies of the Service; (iv) may not remove any proprietary notices or labels on the Service; (v) may not resell, lease, rent, transfer, sublicense, or otherwise assign rights to the Service.

This License commences on the Effective Date of the Agreement and shall remain in effect for the term reflected in the applicable Order Form for a Subscription License, or, if no fixed term is provided, for twelve months from initial Licensee access of the Service, or until terminated as provided in this Agreement. Unless otherwise agreed in the applicable Order Form, each Term License will automatically renew for subsequent twelve-month terms unless Licensee gives Savissimo, Inc. or an Authorized Resellers written notice that it does not intend to renew that Term Subscription at least thirty (30) days prior to the start of the renewal term.

3. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS

If the User bound by this agreement is an entity, the User agrees to take reasonable steps to ensure that any and all persons employed by the entity and having access to the Service will observe User’s obligations regarding the Service. User will not rent, lease, sub-license, give, lend, or convey the Service to any other person or entity, or allow any third party to copy or use the Service without prior express written approval of Savissimo, Inc.

While this agreement is in force, all data or other work product generated exclusively by User’s use of the Service shall be and shall remain the sole and exclusive property of User and shall not be considered part of the Service or subject to restrictions imposed on use of the Service as set forth herein.

4. INTELLECTUAL PROPERTY RIGHTS

User acknowledges that no intellectual property rights associated with the Service are transferred to User. All title and intellectual property rights, including copyrights, in and to the Service (including, but not limited to, images, text, and “applets” incorporated therein), are and shall continue to be owned by Savissimo, Inc. The Service is protected by copyright laws and international intellectual property treaty provisions and is patented. User agrees to abide by all such legal restrictions applicable to the Service.

Savissimo, Inc., its licensors and ISV Partners retain ownership, title and all rights and interest, including, without limitation, Intellectual Property Rights in and to the Software, Service and Documentation. To the extent permitted by applicable law, any copy, modification, revision, Correction, Update, enhancement, adaptation, translation, or derivative work of or created from the Software or Documentation (“Derivative”) shall be owned solely and exclusively by Savissimo, Inc. or its licensors or ISV Partners, as applicable. To the extent permitted by applicable law, Licensee assigns title, ownership, and all rights to Savissimo, Inc. in any Derivative. To the extent an assignment is not effective under applicable law, Licensee grants Savissimo, Inc. an exclusive, perpetual, fully-paid, transferable, irrevocable license to use, reproduce, distribute, and commercialize the Derivative to the fullest extent permissible and effective under applicable law.

5. CHOICE OF LAW

This agreement shall be governed exclusively by and construed exclusively in accordance with the laws of the State of North Carolina, as applied to Contracts entered into and to be performed entirely within North Carolina between North Carolina residents. User agrees to submit to the jurisdiction of the state and federal courts of North Carolina located in Raleigh, North Carolina, as the exclusive venue for adjudication of any claims arising under this Contract.

If for any reason a court of competent jurisdiction finds any provision of this agreement, or portion thereof, to be unenforceable, then the remainder of this agreement shall continue in full force and effect.

6. LIMITED WARRANTY AND REMEDIES

If, during the Software Subscription Period, Licensee believes that the Software has Defects, Licensee shall promptly notify Savissimo, Inc. in writing, describe with specificity any such Defect, and provide a listing of output and such other data as may be required by Savissimo, Inc. to reproduce the Defect. Licensee’s exclusive remedy and Savissimo, Inc.’s sole liability for Software performance under this Agreement will be to use reasonable efforts to correct any such Defects and supply Licensee with a Correction as soon as reasonably practicable.

USER AGREES THAT SAVISSIMO, INC. HAS MADE NO EXPRESS WARRANTIES, ORAL OR WRITTEN, REGARDING THE SERVICE AND THAT THE SERVICE IS BEING PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND. SAVISSIMO, INC. DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY. USER RIGHTS MAY VARY DEPENDING ON THE STATE IN WHICH THEY LIVE.

Use of this program is solely at User’s risk.

IN NO EVENT SHALL SAVISSIMO, INC. BE LIABLE TO USER FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS, OR OTHER INCIDENTAL, INDIRECT, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (including, without limitation damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) ARISING OUT OF THE USE OF THE SERVICE, EVEN IF SAVISSIMO, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SAVISSIMO, INC.’S TOTAL LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE SUBSCRIPTION COST OF THE SERVICE.

In no event shall either party be liable to the other for any delay or failure to perform hereunder due to causes beyond the reasonable control of that party, including acts of a government and severe weather conditions. Failure to make payment under this Agreement shall not be considered an excusable delay.

7. TERMINATION

This agreement shall terminate automatically and immediately if the User fails to comply with any provision of this agreement. No notice shall be required to effectuate such termination. The agreement may also be terminated without notice if User commits an act of bankruptcy, ceases doing business, or assigns all assets of User’s business.

Access to the Service may be disabled by Savissimo, Inc. in the event of non-payment for Services by Licensee.

The agreement may also be terminated at the User’s discretion by termination of access of the Service and notice of such termination of use to Savissimo, Inc. Upon termination of the agreement, all rights of the User in the Service terminate. Refunds, if any, may be provided solely at the discretion of Savissimo, Inc.

8. INDEMNITY

Savissimo, Inc. and the User acknowledge and agree that the Service is a support system and that the User is solely responsible and liable for the end product, and that Savissimo, Inc. has no responsibility or liability in respect thereof. User releases and discharges and shall indemnify and hold harmless Savissimo, Inc. and its representatives from and against any and all claims, actions, liabilities, damages, losses, costs and expenses, including attorney’s fees, and costs and expenses incurred by persons other than the User for any matter arising out of or relating to the User’s provision of services, and/or User’s use of the Service.

Savissimo, Inc. agrees to defend Licensee from and against any action based on a third party claim alleging that the Software or Documentation, when used in accordance with this Agreement, infringes a patent or copyright in the applicable jurisdiction or misappropriates a trade secret (as defined under applicable law) of any third party, and Savissimo, Inc. shall pay all reasonable costs, expenses and damages finally awarded against Licensee, arising from any such action; provided, however, that (i) Licensee gives Savissimo, Inc. prompt written notice of such action, (ii) Licensee fully cooperates with Savissimo, Inc. in the defense and settlement thereof, (iii) Savissimo, Inc. is given full control of the defense of such action and any settlement or compromise thereof, and (iv) Licensee complies with Savissimo, Inc.’s direction to cease using any Software that in Savissimo, Inc. reasonable judgment may be ruled to cause an infringement of a third party’s Intellectual Property Rights.

9. LAWFUL ACTIVITY ASSURANCES

User agrees to comply with all applicable laws and regulations of the United States, including laws and regulations that may apply to data created or stored by use of the Service, including, without limitation, export laws and regulations of the United States.

10. SERVICES

Savissimo, Inc. shall provide Services when mutually agreed in an SOW. Unless otherwise agreed in writing by Savissimo, Inc., the terms and conditions of this Agreement will apply to any Services provided to Licensee by Savissimo, Inc. after the Effective Date, whether or not this Agreement is referenced and whether or not an SOW is executed. Unless otherwise agreed in an SOW, the total cost or completion dates for any Services in an SOW are estimates. Licensee acknowledges that the ultimate responsibility for implementation rests with Licensee and that Savissimo, Inc.’s role is to assist Licensee in that endeavor. Any staff or personnel provided by Savissimo, Inc. to provide the Services under an SOW are referred to as “Consultants”.

Licensee shall appoint an individual to authorize SOWs, receive progress reports and address problems that may arise in connection with the Services (the “Project Manager”) and shall provide Savissimo, Inc. in writing with the name and contact information for that Project Manager. The Project Manager and Consultants shall develop administrative procedures to review performance of work at Licensee’s site.

Savissimo, Inc. shall require its Consultants to observe the reasonable security, safety and other policies of the Licensee while such Consultants are on Licensee’s premises, provided that Licensee provides Savissimo, Inc. with reasonable advance notice of those policies.

Savissimo, Inc.’s performance depends upon Licensee’s timely and effective cooperation in connection with the Services, including providing Savissimo, Inc. with reasonable facilities, timely and sufficient access to appropriate data, information, and appropriately skilled Licensee personnel, and prompt responses to questions and requests. Savissimo, Inc. will not be liable for any failure or delays in performing the Services to the extent that the failure or delay is caused by Licensee’s failure to cooperate. Unless otherwise specified in an SOW, Savissimo, Inc. may rely upon the accuracy and completeness of data, material, and other information furnished by Licensee, without any independent investigation or verification.

Either party may propose changes in the scope of the SOW, but neither party will be bound by any proposed change until both parties have agreed to that change in writing (a “Change Order”).

Savissimo, Inc. will try to accommodate work schedule requests of Licensee to the extent commercially practicable. Savissimo, Inc. reserves the right to change such schedule for any SOW if the assigned Consultants are unable to perform scheduled Services because of illness, resignation, weather, or other causes beyond Savissimo, Inc.’s reasonable control. Savissimo, Inc. will make commercially reasonable efforts to replace any such Consultant within a reasonable time in order to limit impact on the schedule.

Licensee may cancel all or part of any SOW upon ten (10) business days advance written notice (“Cancellation Notice”). Upon cancellation of an SOW in progress, Licensee will pay all fees and expenses for work performed through the effective cancellation date (partially completed fixed fee engagements will be prorated) as well as reasonable costs directly related to Licensee’s cancellation (such as early termination of lodging arrangements or air travel change fees). If Licensee terminates an SOW with less than the Cancellation Notice, Licensee will also pay a cancellation fee equal to the total daily rates for Consultants assigned to the canceled SOW for every day that the actual cancellation was less than the Cancellation Notice. However, the cancellation fee may not exceed the remaining number of days scheduled on the canceled SOW.

Licensee may request that a previously scheduled SOW be rescheduled upon ten (10) business days advance written notice (“Rescheduling Period”) at no cost, other than any reasonable costs directly related to rescheduling (such as lodging cancellation charges or air travel change fees). Savissimo, Inc. will make reasonable efforts to accommodate Licensee’s requested dates but the rescheduled SOW dates, although mutually agreed, shall be based on availability of Consultants. If the rescheduling request is made with less than the Rescheduling Period, Licensee will also pay a rescheduling fee equal to the total daily rates for Consultants assigned to the rescheduled SOW for every day that the actual request to reschedule was less than the Rescheduling Period. However, the rescheduling fee may not exceed the total or remaining number of days scheduled on the rescheduled SOW.

Unless otherwise provided in an SOW, Licensee shall pay Savissimo, Inc. on a time and materials basis at Savissimo, Inc.’s then-current rates. Hourly rates or fees for Services performed shall be set forth in the applicable SOW. Unless otherwise agreed in writing in the SOW, the minimum labor charge for any single day is eight hours. Billable amounts incurred in excess of eight hours per day will be billed at the standard, straight-time hourly rate. Estimated fees for Services under this Agreement do not include travel or other expenses. Licensee agrees to reimburse Savissimo, Inc. for and will be invoiced for all travel and other expenses. Out-of-pocket expenses will be reimbursed on a pass-through basis based on the net cost paid or invoiced at the time of purchase, which includes airfare, ground transportation, lodging, meals and incidentals. Licensee acknowledges that Savissimo, Inc. or its affiliates may receive frequent flyer miles, hotel “points”, commissions, rebates, fees or other consideration (“Benefits”) as a result of relationships with travel service providers, alliance companies, software, hardware, and other vendors. Licensee agrees that Savissimo, Inc. is not obligated to provide a credit for or reimbursement to Licensee for Benefits.

If requested by Savissimo, Inc., Licensee will make available for use projection equipment for on-site training classes. Alternatively and upon prior written request,Savissimo, Inc. will provide projection equipment for an additional charge.

If set forth in an SOW, Customizations may be developed for the use of Licensee and will conform to the Software program identified in the applicable SOW for the Software version to which the Customization Services apply as it exists at the time of development. Customization Services are not covered in Licensee’s maintenance plan. If future improvements or Updates to the applicable Software cause the program and/or databases to change, then any Customization provided to Licensee may require modification. The cost of such modification will be borne by Licensee.

11. MISCELLANEOUS PROVISIONS

Dispute Resolution:

Any Dispute that cannot be resolved by the parties will be settled by final and binding arbitration in accordance with the American Arbitration Association (“AAA”) rules. Unless otherwise agreed, the arbitration panel will consist of three arbitrators selected by the parties from a list of candidates provided by the AAA, and each arbitrator will be an attorney experienced in information technology disputes. The arbitrators will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions concerning the arbitration, including choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this agreement to arbitrate. The arbitration proceeding shall be conducted in the English language and shall occur in the Raleigh, NC metropolitan area, or, with the consent of all arbitrators and parties, another mutually agreeable metropolitan area. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1-16, and judgment upon the award rendered by the arbitrators may be entered by any court of competent jurisdiction.

Independent Contractor:

Each party is at all times acting as an independent contractor under this Agreement and not as an agent, employee, joint venturer or partner of the other.

Partner Transactions:

Where Licensee acquires Savissimo, Inc. Software or receives maintenance, support or Services from a Partner, any specific term regarding warranty, maintenance and/or Services, as applicable, may be contracted directly between Licensee and that Partner and conflicting terms of this Agreement shall not apply to such Software, maintenance, support or Services.

Copyright Notice:

The Software and Documentation are protected, with all rights reserved, under applicable copyright laws.

Severability:

In the event of invalidity of any provision of this Contract, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Contract, such that the remaining portions of the Contract remain in force and enforceable, to the extent that the Contract has not been terminated. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.

Entire Contract:

User agrees that this is the entire agreement between User and Savissimo, Inc., which supersedes any prior agreement, whether written or oral, and all other communications between Savissimo, Inc. and User relating to the subject matter of this agreement.

Reservation of Rights:

All rights not expressly granted in this agreement are reserved by Savissimo, Inc.