BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING SERVICES AGREEMENT. BY CLICKING THE “I ACCEPT” BUTTON, YOU ARE ENTERING INTO THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF 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 TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” SHALL REFER TO YOU AND SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT UTILIZE ANY SERVIO SERVICES.
This Services Agreement (“Agreement“) is made by and between you (the “Customer“) and Servio, Inc., a Delaware corporation (referred to herein as “Servio“).
- Customer wishes to submit one or more electronic orders (“Orders”) to retain Servio to perform labor services as specified in the Orders (the “Services”).
- Servio wishes to perform the Services on the terms and conditions set forth in this Agreement.
- As part of an Order submitted by Customer, Customer may be asked to submit information or files (“Input Data”)
- Servio will, upon completion of the Services, make resulting data (“Results Data”) and any deliverables resulting from the Services (“Deliverables”) available for download by Customer.
- Retention of Servio/Performance of Services. Customer hereby retains Servio to provide the Services on the terms and conditions set forth in this Agreement with respect to any Orders submitted by Customer to Servio. Servio hereby agrees to use commercially reasonable efforts to provide the Services in accordance with this Agreement and the applicable Order(s). Servio may rely upon the accuracy and completeness of data, material, and other information furnished by Customer, without any independent investigation or verification.
- Cancellation/Changes. Customer may not, without the written consent of Servio, cancel or change the Services once they have completed an Order.
- Cooperation. Servio’s performance of the Services may depend on cooperation of Customer to provide accurate Input Data. Servio will not be liable for any failure or delays in performing the Services, to the extent that the failure or delay is caused by Customer’s lack of cooperation.
- Fees. The fees for the Services will be the fees specifically quoted at the Servio website (the “Price Quote“) at the time of submission of the Order(s) (the “Fees“). Once the Price Quote is accepted by Customer, the credit card or PayPal account provided by Customer at the time of submission of the Orders and any related Input Data will be charged the amount of the Fees. Servio shall have no obligation to provide any Services and may suspend or terminate any Services with no liability to Customer in the event that Servio is unable to collect the Fees for the Services in accordance with this Section 4.
- Delivery. Servio will provide email notification to the email address listed within the Customer’s registered account with Servio upon completion of an Order (“Completion Notification”). To retrieve any electronic Results Data or Deliverables, Customer shall log into their Servio account and download any relevant files. Customer acknowledges and agrees that delivery of the Completion Notice and Servio making any Results Data or Deliverables available to Customer through Customer’s Servio Account shall constitute effective delivery of the Results Data and such Deliverables.
- Representation and Warranties of Customer. Customer represents and warrants to Servio that (i) Customer is the rightful owner of any uploaded materials, including without limitation any Input Data, and has full power and authority to submit such materials as inputs for the Services or Customer has the permission of the owner of such materials to submit the Orders and any related Input Data to Servio to perform the Services; and (ii) Servio’s performance of the Services will not violate any proprietary rights of third parties, including without limitation, patents, copyrights, trademarks, know-how or trade secrets of any third party.
- Relationship of the Parties. Servio enters into this Agreement as, and shall continue to be, an independent contractor. In no circumstance shall Servio look to Customer as Servio’s employer, partner, agent, or principal. Neither Servio nor its employees shall be entitled to any benefits accorded to Customer’s employees, including workers’ compensation, disability insurance, retirement plans, or vacation or sick pay. Neither Servio nor its employees shall have the authority to act on behalf of or bind Customer in any manner.
- Term. This Agreement governs the relationship between the parties regarding the Order(s) submitted contemporaneously with this Agreement. This Agreement will become effective upon Customer clicking the “I Accept” button and will terminate upon delivery of the Completion Notification(s) with respect to such Orders in accordance with Section 5 above. The following sections will survive the termination of this Agreement: Sections 5 through 13 inclusive.
- Confidentiality. Servio shall maintain in confidence and shall not, directly or indirectly, disclose or use, either during or after the term of this Agreement, the Input Data except to the extent necessary to perform the Services or as required by law.
- Indemnification. Customer agrees to indemnify, defend, and hold harmless Servio and its officers, directors, employees, agent and successors and assigns from and against any and all claims, suits, actions, proceedings, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorney fees and costs (collectively, “Claims“) arising out of or caused by (i) Customer’s breach of any of the covenants, representations and warranties or other terms of this Agreement; (ii) the violation of any third party rights in and to the Input Data arising from (A) Customer submitting Input Data for the Services, or (B) Servio performing the Services using Input Data; or (iii) Customer’s use of the Results Data or Deliverables.
- Disclaimer of Warranties. To the fullest extent permitted by applicable law, Servio makes no representations or warranties of any kind, statutory, express or implied, with respect to the Services, any Results Data or any Deliverable including without limitation: (i) any statutory or implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement; or (ii) that the Services will serve the intended purposes or meet the requirements of Customer; or (iii) any implied warranty arising from course of dealing or usage of trade.
THE PARTIES AGREE AS FOLLOWS:
12. Limitation of Liability
12.1 Consequential/Special Damages Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SERVIO BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY ORDER OR ANY SERVICES, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, SERVIO’S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY UNDER ANY AND ALL CLAIMS (AS DEFINED IN SECTION 10 ABOVE) ARISING OUT OF THIS AGREEMENT, ANY ORDER OR ANY SERVICES SHALL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES (AS DEFINED IN SECTION 4) PAID BY CUSTOMER TO SERVIO PURSUANT TO THIS AGREEMENT.
13. General Provisions
13.1 Entire Agreement. This Agreement and its Exhibits constitutes the parties’ entire agreement relating to its subject matter. This Agreement cancels and supersedes all prior and contemporaneous oral and written communications between the parties and prevails over any conflicting or additional terms contained in any such document or communication between the parties relating to its subject matter.
13.2 Governing Law, Jurisdiction, and Venue. This Agreement shall be governed and interpreted in accordance with the laws of the State of California, as such laws are applied to agreements between residents of California to be performed entirely within the State of California. Each party hereby consents to jurisdiction of and venue in the federal district court for the Northern District of California and in the courts of the State of California in San Francisco County.
13.3 Entire Agreement/ Modification. This Agreement sets forth the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings, express or implied. No modification of this Agreement shall be effective unless assented to in a writing signed by Customer and an authorized officer of Servio.
13.4 Severability. Each term, condition, and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. If any term, condition, or provision of this Agreement, or the application thereof to any person or circumstance, shall be held invalid or unenforceable to any extent, then such term, condition, or provision shall be curtailed and limited to the extent necessary to bring it within the legal requirements and the remainder of this Agreement, and the application of such term, condition, or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby.
13.5 Attorneys’ Fees. Should any litigation be commenced between the parties concerning the rights or obligations of the parties under this Agreement, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for its attorneys’ fees in such litigation. This amount shall be determined by the court in such litigation or in a separate action brought for that purpose. In addition to any amount received as attorneys’ fees, the prevailing party also shall be entitled to receive from the party held to be liable, an amount equal to the attorneys’ fees and costs incurred in enforcing any judgment against such party. This Section is severable from the other provisions of this Agreement and survives any judgment and is not deemed merged into any judgment.
13.6 Acknowledgment. Customer acknowledges that Customer has read and understands the Agreement, is fully aware of its legal effect, and has entered into it freely based on Customer’s own judgment and not on any promises or representations other than those contained in the Agreement.