Terms Of Service

These Terms of Service (“Terms”), are incorporated into the Order Form referencing these Terms (these Terms and the Order Form, together, the “Agreement”) and is entered into by and between ServiceCore Inc. (“ServiceCore”, “we”, “us”, “our”) and the customer identified on the Order Form (“Customer”). 

  1. Development Services. 
    1. Development Services. ServiceCore shall provide to Customer the website development services described in the Order Form (“Development Services”) in accordance with the terms and subject to the conditions set forth in this Agreement. With respect to any of Customer’s responsibilities set forth in the Order Form, ServiceCore’s obligations related thereto will be subject to the complete and timely performance by Customer of Customer’s responsibilities.  Any delays or additional costs incurred by ServiceCore as a result of Customer’s failure to provide timely and properly the co-operation described in this Agreement (“Lost Time”) shall be the responsibility of Customer and payment for all Lost Time shall be made to ServiceCore at ServiceCore’s then-current rates. Any payments for Lost Time will be in addition to any fees for Development Services.  For purposes of this Agreement, “Lost Time” will include without limitation: (i) any time ServiceCore stands idle as a result of any failure of Customer to perform Customer’s responsibilities as set forth in Order Form, and (ii) any time and materials expended by ServiceCore in an attempt to correct discrepancies in Development Services that are demonstrated by ServiceCore to the reasonable satisfaction of the Customer to have been the result of an error or discrepancy in materials, technology or information provided by Customer rather than errors of ServiceCore.
    2. Failure of Assumptions.  In the event that the assumptions contained in Order Form fail, such that ServiceCore can meet the related milestones or provide the related deliverables, if at all, only through the expenditure of resources in excess of those contemplated by the parties, the parties shall in good faith execute a change order.  Such change order will extend such milestones and/or require Customer to pay such additional amounts as necessary to compensate for the failure of the parties’ assumptions.  In the event that the parties are unable to reach agreement on such change order, ServiceCore may, in its discretion, terminate this Agreement.  In the event of such termination, Customer shall pay ServiceCore the fees for any Development Services performed before the effective date of termination, on a time and materials basis, such fees not to exceed the amount associated with the next uncompleted milestone, plus any reasonable costs incurred before the effective date of termination.  
    3. Customer Obligations. Customer shall provide all assistance, technical information and decisions to the ServiceCore, as reasonably required by ServiceCore in sufficient time to facilitate the execution of Development Services in accordance with any estimated delivery dates or milestones. Customer agrees to work closely with ServiceCore to provide regular information and feedback so ServiceCore can effectively perform Development Services. Customer will have sole responsibility for and will ensure the accuracy, completeness, and correctness of all information provided to ServiceCore, including login information and passwords to access social media, analytics, hosting, domains, and other third-party accounts necessary for ServiceCore to perform Development Services. Customer represents and warrants that there are no agreements or arrangements, written or oral, by which Customer is bound that would be breached upon execution or performance of this Agreement by either party, that would restrict, interfere or conflict with the either party’s obligations under this Agreement or that would diminish either party’s rights granted under this Agreement. Customer shall comply with all the terms, conditions, obligations, and restrictions in this Agreement. Customer shall at all times conduct its activities under this Agreement in full compliance with all laws, rules and regulations, including those with respect to marketing, social media, advertising, privacy, data, in each case that are applicable to the use of ServiceCore Technology (as defined below) by Customer, including, without limitation, the Telephone Consumer Protection Act, 47 U.S.C. § 227, and the Federal Communications Commission’s rules issued thereunder, including 47 C.F.R. § 64.1200 (collectively, the “TCPA”), the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101 et seq., and the Federal Trade Commission’s  Telemarketing Sales Rule issued thereunder, 16 C.F.R. §§ 310.1 et seq. (collectively, the “TSR”), federal and state laws relating to invasion of privacy or do-not-call registries (“DNC Laws”), federal and state campaign finance laws (including required disclaimer, disclosure, or “Paid for by” laws, such as the California Text Message DISCLOSE Act, or AB 201), and any analogous or similar foreign, local, municipal or state laws and regulations (“Applicable Law”) and any terms of use and other terms, guidelines, and policies (including advertising policies) on all media channels and other social media or internet platforms used in performing under this Agreement, including those in connection with Third-Party Products and Services (as defined below).
    4. Deliverables. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials (“Development Materials”) that are delivered to Customer under this Agreement and prepared by or on behalf of ServiceCore in the course of performing the Development Services (collectively, the “Deliverables”) shall be made available for use and access by Customer as “Software Services” under this Agreement. All rights not expressly granted by ServiceCore are reserved.  No implied licenses are granted by the terms of this Agreement and no license rights with respect to any Deliverables or any ServiceCore Intellectual Property Rights shall be created by implication or estoppel.  
  2. Software Services.
    1. Access. Subject to the terms and conditions contained in this Agreement, ServiceCore hereby grants Customer a non-exclusive, non-transferable right to: (a) access and use, and allow its authorized customers (collectively, “Authorized Users”) to access and use, the software offerings, provided to Customer on a software-as-a-service or mobile application basis and any related software and/or services (“Software Services” and together with the Development Services, the “Services”) during the term of access identified in the applicable Order Form (“Access Term”), solely in accordance with the terms and conditions of this Agreement, including the applicable Order Form; and (b) use any documentation provided therewith during the Access Term for Customer’s internal business purposes in connection with Customer’s use of the Software Services. On or as soon as reasonably practicable after the Effective Date (as defined below), ServiceCore will provide to Customer the necessary passwords, security protocols and policies and network links or connections (the “Access Protocols”) to allow Customer and its Authorized Users to access the Software Services. Customer will be solely responsible for all acts or omissions of its Authorized Users with respect to this Agreement. Customer shall notify ServiceCore immediately of any unauthorized use of Customer’s Access Protocols or any other known or suspected breach of security. ServiceCore provides limited technical support services as part of the Software Services. The parties may agree to ServiceCore providing additional technical support services pursuant to an Order Form. Customer is solely responsible for its interactions with Authorized Users. Customer agrees that ServiceCore will not be responsible for any liability incurred as the result of such interactions.
    2. ServiceCore Technology. Customer understands and acknowledges that the software, code, proprietary methods and systems used to provide the Software Services, including Deliverables and other Development Materials (“ServiceCore Technology”) are: (a) copyrighted by ServiceCore and/or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and (c) owned by ServiceCore or our licensors. ServiceCore Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. Customer must abide by all copyright notices, information, or restrictions contained in or attached to any of ServiceCore Technology. Nothing in this Agreement grants Customer any right to receive delivery of a copy of ServiceCore Technology or to obtain access to ServiceCore Technology except as generally and ordinarily permitted through the Software Services, according to this Agreement. Furthermore, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license to ServiceCore Technology, and we reserve all rights not expressly rights herein. Certain of the names, logos, and other materials displayed on the Software Services constitute trademarks, tradenames, service marks or logos (“Marks”) of ServiceCore or other entities. Customer is not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with ServiceCore or those other entities.
    3. Restrictions. Customer will not, nor will Customer authorize or assist any third party, including Authorized Users, to: (a) use, copy, modify, download or transfer the Services or ServiceCore Technology or any component of the foregoing, in whole or in part, except as expressly provided in this Agreement; (b) reverse engineer, disassemble, decompile, or translate any software components of the Services or ServiceCore Technology, attempt to derive the source code of any software components of the Services or ServiceCore Technology, create any derivative work from any software components of the Services or ServiceCore Technology; (c) rent, lease, loan, resell for profit, or distribute the Services or ServiceCore Technology, or any part thereof; (d) remove or alter any proprietary notice or legend regarding ServiceCore’s proprietary rights in the Services or ServiceCore Technology Services; (e) export the Services or ServiceCore Technology from and outside the United States of America; (f) interfere with or disrupt the integrity or performance of the Software Services or the data contained therein; (g) attempt to gain unauthorized access to the Services or ServiceCore Technology or its related systems or networks; or (h) upload, transfer, or otherwise transmit sensitive personal information, except where necessary to provide the Services or ServiceCore Technology; or (i) to “harvest” or collect information (including information about other Services or ServiceCore Technology users) using an automated software tool or manually on a mass basis. Additionally, Customer may not use the Services or ServiceCore Technology: (i) except in accordance with applicable laws and regulations; (ii) for spamming, sending chain letters, junk mail, or using a distribution list to communicate with a person who has not given Customer specific permission to contact them in such a manner; or (iii) to display, transmit or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content of any kind.
    4. Additional Requirements. 
      1. Use. Customer agrees that it will not use, and will not permit any other person or entity to use, the Services or any ServiceCore Technology to: (a) defraud any third party or to distribute obscene or other unlawful materials or information; (b) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (c) transmit any content that is illegal or that relates to or references illegal activities, drugs, or alcohol; or (d) send or store material that is defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive; or that infringes upon or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). Customer further agrees that it will not use, and will not permit any other person or entity to use, the Platform to contact any emergency services, to annoy or harass any person or entity, or in any manner that otherwise violates any federal, state or local law, regulation or ordinance. 
      2. Applicable Law. Without limitation to any other provision of this Agreement, Customer agrees that it will only use, and permit others to use, the Services and ServiceCore Technology in a manner that is consistent with the terms of this Agreement and Applicable Law. For the avoidance of doubt, with respect to any messaging capabilities of the Services or ServiceCore Technology, Customer may only use the Services or ServiceCore Technology to initiate or cause to be initiated messages if the subscriber or customary user of the telephone number to be contacted has provided the consents that are required by Applicable Law for the type of message sent and has not revoked such consent. Customer agrees to promptly honor any request by a message recipient to not be contacted or any other revocation of consent to be contacted via any particular manner, for any particular purpose or at any particular times. To the extent any message constitutes an advertisement or serves a marketing purpose and to the extent required by Applicable Law, Customer agrees to obtain and review the applicable federal and state do-not-call registries as frequently as required by Applicable Law and to refrain from initiating messages to any telephone number appearing on any such registry. Customer shall be solely responsible for any and all messages sent through the use of the Platform and ServiceCore shall have no liability for any such messages.  
      3. No Spoofing. Customer shall not take any action to mask, spoof or alter caller identification information in violation of any applicable federal or state law, including, without limitation, the TSR, the FCC’s Truth in Caller ID Rules, 47 C.F.R. §§ 1601 et seq., and analogous state laws and regulations. 
      4. No Reverse Engineering for Messaging. Customer acknowledges that the Services and ServiceCore Technology do not have the capability to automatically send messages, and Customer agrees that it shall not alter, modify, reconfigure or reverse engineer the Services or ServiceCore Technology or use the Services, ServiceCore Technology, or any third-party code, files, script or program to automatically send messages or in any manner that violates the terms of this Agreement or Applicable Law.
      5. Customer Policies. Customer shall cause all Authorized Users to agree to terms of service, terms of service, terms or use, privacy policy or similar restrictions relating to the use of the Platform (collectively, “Customer Policies”), Customer agrees that ServiceCore will be made a third-party beneficiary of any such Customer Policies. Customer Policies shall be consistent with and at least as restrictive and protective of ServiceCore as the terms of this Agreement and the Privacy Policy. Customer shall submit a copy of any Customer Policy to ServiceCore for approval prior to its adoption and agrees to provide any updates or modifications to any such Company Policies to ServiceCore prior to adoption for prior approval.
  3. Content.
    1. Customer Content. Customer expressly grants, and Customer represents and warrants that Customer has all rights necessary to grant, to ServiceCore a royalty-free, non-exclusive, worldwide license to use, distribute, modify, reproduce, publicly display, publicly perform and create derivative works of all information, data, materials, and content (“Content”) Customer provides to ServiceCore (collectively, “Customer Content”), including Customer’s trade names, trademarks, service marks, logos, or other indicia or designations (“Marks”) for purposes of performing the Development Services and providing access to and use of the Software Services. Customer is solely responsible for any Customer Content that it submits, uploads, posts, e-mails, transmits or otherwise makes available to ServiceCore. Customer represents and warrants that: (i) Customer owns the Customer Content or otherwise has the right to grant the rights and licenses set forth in this Agreement; (ii) the use of Customer Content in connection with the Services does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other Intellectual Property Rights; and (iii) the use of Customer Content in connection with the Services does and will comply with Applicable Law. 
    2. Storage. Unless expressly agreed to by ServiceCore in writing elsewhere, ServiceCore has no obligation to store any of Customer Content. ServiceCore has no responsibility or liability for the deletion or accuracy of any Content, including Customer Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Services. Customer agrees that ServiceCore retains the right to create reasonable limits on ServiceCore’s use and storage of the Content, including Customer Content, such as limits on file size, storage space, processing capacity, and similar limits described on the applicable Order Form and as otherwise determined by ServiceCore in its sole discretion.
    3. Privacy Policy. ServiceCore processes limited personal data as part of the Services. To better understand how ServiceCore collects, processes, and uses personal data, please visit ServiceCore’s privacy policy at https://www.servicecore.com/privacy-policy/ (“Privacy Policy”). Customer hereby consents to the practices described in ServiceCore’s privacy policy.
  4. Fees and Expenses. Customer shall pay to ServiceCore, without offset or deduction, all fees, which may include setup fees and access fees, in such amounts as may be set forth in an Order Form for the Services (“Fees”). Such Fees are subject to increase at ServiceCore’s sole discretion, provided, ServiceCore notifies Customer in writing, and provided further that such increases will not occur more than once every twelve (12) months. We shall have the right to automatically charge the credit card listed in the Order Form on the date that each payment is due, as indicated on the Order Form. Customer agrees that Customer’s account will be subject to this automatic billing feature unless otherwise agreed to by the parties in writing. ServiceCore uses Authorized.net Card Connector, and Payrix as the third party service providers for payment services (e.g., card acceptance, merchant settlement, and related services), which payment processors may be updated from time to time by ServiceCore in its sole discretion (“Payment Processors”). By agreeing to ServiceCore’s automatic billing feature, Customer consents to the practices set forth in, and agrees to be bound by Authorize.net’s Privacy Policy: https://www.authorize.net/about-us/privacy/, Card Connect’s Privacy Policy https://cardconnect.com/privacy-policy, as well as and Payrix’s Privacy Policy https://portal.payrix.com/privacy, and such other privacy policies of Payment Processors used by ServiceCore, and hereby consents and authorize ServiceCore and the Payment Processors to share any information and payment instructions Customer provides with third-party service providers to the extent required to complete Customer’s transactions. Fees are non-refundable. ServiceCore is not liable or responsible for any failure by a Payment Processor to charge the correct amount to Customer’s credit card (except to the extent ServiceCore provided the Payment Processor with incorrect charge amount) and/or to any Authorized User, and Customer acknowledges and agrees it will dispute any such charges directly with Payment Processor and/or the applicable Authorized User. 
  5. Third-Party Products and Services. In the course of the performance or provision of Services, ServiceCore or Customer may access, use, or otherwise interact with content, products and service from third parties (“Third-Party Products and Services”) including any third-party website hosting service. ServiceCore is not responsible for any Third-Party Products and Services or for liability related to or arising from the use of any Third-Party Products and Services, including the purchase or use of goods, service, resources, content, or any other transactions made in connection with any Third-Party Products and Services or the performance, functionality, or availability thereof or any results from the use thereof. ALL THIRD-PARTY PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND SERVICECORE HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THIRD-PARTY PRODUCTS AND SERVICES. All fees for Third-Party Products and Services will be passed through to Customer as set forth in the Order Form. ServiceCore will use commercially reasonable efforts to pass through the benefit of any warranties or indemnities under agreements for Third-Party Products and Services. Portions of the Services may permit Customer to connect to and access Customer’s accounts with Third-Party Products and Services and to retrieve data and content stored with such Third-Party Products and Services. Customer hereby authorize ServiceCore to access such Third-Party Products and Services on your behalf and Customer represents and warrants that Customer has the all rights, permissions, and consents to grant such authorization. Any and all data or content accessed or retrieved from a Third-Party Products and Service is deemed to be Customer Content for purposes of this Agreement. Any personal data obtained from Third-Party Products and Services will be collected, processed, and used in accordance with ServiceCore’s privacy policy.
  6. Confidentiality. From time to time during the Term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 30 days thereafter, is summarized in writing and confirmed as confidential or that should be reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by Applicable Law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 4 only, “Receiving Party’s Group” shall mean the Receiving Party’s employees, officers, directors, attorneys, accountants, and financial advisors. Notwithstanding any of the foregoing, ServiceCore may refer to Customer on ServiceCore’s websites, case studies, and in ServiceCore’s advertising, marketing, and promotional materials to the relationship between Customer and ServiceCore. We will treat any feedback or suggestions Customer provides to us as non-confidential and non-proprietary. In the absence of a written agreement with us to the contrary, Customer agrees that Customer will not submit to us any information or ideas that Customer considers to be confidential or proprietary.
  7. Term; Termination.  
    1. Term. The term of this Agreement will begin on the Effective date and continue until the expiration of the initial Access Term. The Access Term will automatically renew for additional, consecutive periods of the same term, unless and until either party provides written notice to the other party of its intent not to renew the Order Form. 
    2. Suspension. We may suspend and/or terminate this Agreement or any Order Form immediately if Customer or any Authorized User breaches any term or condition herein, provided that we will use reasonable efforts to provide Customer with notice of such termination. 
    3. By Either Party. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 
    4. Effect of Termination. Upon termination, all rights granted to Customer under this Agreement will immediately cease, Customer may not thereafter use the Services, and ServiceCore may delete any information or content Customer has provided to ServiceCore through use of the Services, including Customer Content. Section 3, 4, 5, 6, 7.4, 9, 10, 11, 12, 13, 14, 15, and 16 of this Agreement will survive such expiration or termination of this Agreement. 
  8. Additional Warranties. Customer represents and warrants to ServiceCore that (a) Customer is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the Applicable Law of its jurisdiction of incorporation, organization, or chartering, (b) Customer has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder, (c) the execution of this Agreement by Customer’s representative whose signature hereto has been duly authorized by all necessary organizational action of Customer, and (d) when executed and delivered by Customer, this Agreement will constitute the legal, valid, and binding obligation of Customer, enforceable against Customer in accordance with its terms. Without limitation to the generality of any of the foregoing, Customer represents and warrants that Customer’s collection, storage, transfer, use and licensing of the Customer Content and use of the Services and ServiceCore Technology is in compliance with all Applicable Laws in all relevant U.S. and foreign jurisdictions (including, without limitation, the TCPA, TSR and DNC Laws), Customer’s privacy policies and the requirements of any contract or codes of conduct that Customer is a party to or is subject to, including any Customer Policy. Customer represents, warrants and covenants that it has and will have all necessary authority, consents, permits, licenses and authorizations to receive, use, disclose and license the Customer Content under this Agreement, including in connection with the use of the Services or ServiceCore Technology, and to send messages to any third parties contacted via the Services or ServiceCore Technology.
  9. Indemnification. Customer shall indemnify, defend, and hold harmless ServiceCore and its affiliates, officers, directors, employees, agents, successors, and assigns from and against all Claims, and all resulting Losses, arising out of or in connection with any allegations of, based upon, or in connection with: (a) breach by Customer of any representation, warranty, covenant, or obligation under this Agreement; (b) infringement, dilution, or other violation of any Intellectual Property Right or other personal or proprietary rights of any individual or entity resulting from the use of Customer Content by ServiceCore, including the Marks; (c) failure by Customer or its personnel to comply with Applicable Law; (d) a message that is sent by Customer or any of its Authorized Users without the consent required under Applicable Law, including the TCPA, TSR or analogous state laws; (e) any violation of Applicable Law (which includes, without limitation, the TCPA, TSR, DNC Laws and analogous state laws) or any other legal obligation by Customer or any of its authorized Users; (f) the Customer Policies, including any breach or enforcement thereof; (g) any public disclosure of, or insufficient security that leads to the disclosure of, Customer Content that occurs as a result of an act or omission of Customer or any Authorized Users; or (h) any other acts or omissions of Customer or its personnel or Authorized Users. 
  10. Independent Contractor. The details of the method and manner for performance of the Development Services by ServiceCore shall be under its own control, Customer being interested only in the results thereof. ServiceCore shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Development Services. Nothing in this Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Development Services. ServiceCore is for all purposes hereunder an independent contractor and in no event will ServiceCore be considered an agent or employee of Customer or any of its subsidiaries or affiliates for any purpose. 
  11. Limited Warranty. ServiceCore warrants that it shall perform the Development Services in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar Development Services. SERVICECORE (a) MAKES NO WARRANTIES EXCEPT FOR THOSE SET OUT ABOVE; AND (b) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SERVICECORE MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICES, SERVICECORE TECHNOLOGY, OR ANY OTHER PRODUCTS, DEVELOPMENT SERVICES, CONTENT, MATERIALS, INFORMATION, OR OTHER OFFERINGS PROVIDED OR MADE ACCESSIBLE TO CUSTOMER (“SERVICE OFFERINGS”) UNDER THIS AGREEMENT WILL BE UNINTERRUPTED, AVAILABLE, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT ANY SERVICE OFFERINGS WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SERVICECORE DOES NOT MAKE ANY WARRANTY, GUARANTEE, OR REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OR OUTCOMES OF THE USE OF, THE SERVICE OFFERINGS AND CUSTOMER ASSUMES ALL RESPONSIBILITY AND RISK FOR ITS USE OF SERVICE OFFERINGS, AND ITS RELIANCE THEREON. ServiceCore’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the limited warranty set out in this Section shall be reperformance of the affected Development Services. If ServiceCore cannot reperform the Development Services in compliance with the warranty set forth above within a reasonable time (but no more than 30 days) after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination to ServiceCore. ServiceCore shall within 30 days after the effective date of such termination, refund to Customer a portion of the fees previously paid by Customer as of the date of termination corresponding to the defective Development Services. 
  12. Limitation of Liability. 
    1. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SERVICECORE’S AGGREGATE TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO SERVICECORE UNDER THE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT, AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
    2. Exclusion of Indirect Damages.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SERVICECORE HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY (A) LOSS OF ACTUAL OR ANTICIPATED PROFITS, (B) LOSS OF BUSINESS, (C) LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, (D) LOSS OF USE, (E) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR DEVELOPMENT SERVICES, (F) ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, REGARDLESS WHETHER (I) ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, (II) SERVICECORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (III) SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
  13. General. Each of the parties hereto shall use commercially reasonable efforts to, from time to time at the request and sole expense of the other party, furnish the other party such further information or assurances, execute and deliver such additional documents, instruments, and conveyances, and take such other actions and do such other things, as may be reasonably necessary or to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby. Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by facsimile or email (with confirmation of transmission), or by recognized overnight courier service, and addressed to the other party at the addresses set forth above (or to such other address that the receiving party may designate from time to time in accordance with this Section). This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The parties may not amend this Agreement except by written instrument signed by the parties. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise; provided that, the parties intend that the remedy set out in Section 11 (Limited Warranty) is Customer’s exclusive remedy for ServiceCore’s breach of the limited warranty set out in Section 11. Neither party may directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, voluntarily or involuntarily, including by change of control, merger (whether or not such party is the surviving entity), operation of law, or any other manner, without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section shall be null and void. ServiceCore, however, may subcontract the Development Services. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Except for the parties, their successors and permitted assigns, there are no third-party beneficiaries under this Agreement. This Agreement may be executed in counterparts.
  14. Dispute Resolution. Any controversy, dispute or claim arising out of or relating to this Agreement or any breach thereof (other than for any controversy, dispute or claim relating to breaches, infringement, misappropriation, or other violation of ServiceCore’s intellectual property rights or confidentiality) will be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”).  There shall be one arbitrator agreed to by the parties within 20 days of receipt by respondents of the request for arbitration or, if the Parties fail to agree within such period, such arbitrator shall be appointed by the AAA in accordance with its Commercial Rules.  The award rendered by the arbitrator shall be final and binding on the parties and may be entered and enforced in any court having jurisdiction.  The place of arbitration shall be Denver, Colorado.  EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY ATTACHMENTS THERETO OR DOCUMENTS REFERENCED THEREIN, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY ATTACHMENTS THERETO OR DOCUMENTS REFERENCED THEREIN, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
  15. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Attachments refer to the Sections of and Attachments attached to this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
  16. Force Majeure. ServiceCore shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of ServiceCore including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, public health events, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

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