End User License Agreement


	End User License Agreement

a la mode, inc.

INTERNET VERSION--CLICK-WRAP

VAULT AGREEMENT

IMPORTANT NOTICE TO USER--PLEASE READ CAREFULLY

YOU MAY NOT ACCESS THIS WEBSITE (THE "WEBSITE") OR THE VAULT SERVICE INCLUDED THEREON ("VAULT") UNLESS YOU FIRST REVIEW AND ACCEPT THE TERMS AND CONDITIONS OF THIS VAULT AGREEMENT (THE "AGREEMENT") BY CLICKING ON "Yes" AT THE BOTTOM OF THIS FILE. AFTER YOU REVIEW THE TERMS AND CONDITIONS BELOW, PLEASE ACKNOWLEDGE YOUR AGREEMENT BY CLICKING ON "Yes," OR THAT YOU DECLINE THIS AGREEMENT BY CLICKING ON "No" AT THE BOTTOM OF THIS FILE. YOU CANNOT OBTAIN ACCESS TO VAULT UNLESS YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING ON "Yes."

TERMS AND CONDITIONS

1. Subscription. You hereby subscribe for, and a la mode, inc. ("ALM") hereby agrees to provide, electronic storage on Vault for real estate appraisals.

2. Intellectual Property. You acknowledge and agree that Vault is a valuable commercial product of ALM, the development of which has involved expenditure by ALM of substantial time and money. You further acknowledge and agree that you have no ownership rights in Vault. You further acknowledge and agree that the name and mark "Vault" and all associated names, marks and logos (collectively, the "Marks") are the trademarks and/or service marks of ALM or its affiliates, and that any trade dress, trademark, service mark or designs related to Vault and/or the Marks are the intellectual property of ALM and are protected by United States copyright laws, trademark laws, trade secret laws, international treaties, and applicable laws of the states and jurisdictions where they are used. This Agreement does not grant to you any ownership right in the Marks or in any other intellectual property of ALM. All right, title and interest in and to the Marks and any other intellectual property of ALM shall remain with ALM.

3. Software. From time to time, software may be provided by ALM to you for use in connection with Vault, either electronically or in diskette or other form. If such software is delivered with or includes a proposed license agreement (including, without limitation, a "shrink wrap" or similar license agreement or a license agreement which appears in one of the first screens of the software), then unless otherwise agreed by ALM and you in writing, if you use such software, you will be deemed conclusively to have accepted the terms of such license agreement. In the event you receive software and/or software documentation in connection with Vault which is not specifically covered by the terms of a license agreement described in the immediately preceding sentence or a separate agreement between ALM (or, if different, the licensor of the software) and you (collectively, "Additional Software"), the following provisions of this Section 4 will apply to such Additional Software:

(a) ALM grants a nonexclusive, nontransferable license to you to use an executable version of the Additional Software in connection with Vault and for such other purposes to which ALM may consent in writing and for no other purpose whatsoever. No ownership or other interest in the Additional Software is granted to you, other than the license granted in the immediately preceding sentence. The Additional Software is provided for your internal use only, and you will not enable or (to the extent within your control) permit any third parties to use the Additional Software, either directly or through you. THE ADDITIONAL SOFTWARE IS PROVIDED TO YOU IN ITS "AS IS" CONDITION AND ALL EXPRESS AND IMPLIED WARRANTIES ARE EXPRESSLY EXCLUDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

(b) ALM reserves the right to modify or enhance the Additional Software at any time and, at its option, may make available to you the modified and/or enhanced versions of the Additional Software. Unless otherwise agreed by ALM in writing, you will use only the most recent version of the Additional Software provided by ALM and will follow ALM’s instructions concerning the return or destruction of any prior versions of the Additional Software. You recognize that ALM may at times elect to provide the Additional Software in electronic form and agree that you will provide ALM with remote access to all ALM applications and related software residing at your site to the extent reasonably necessary to enable ALM to (i) determine the version of the Additional Software then in use by you, and (ii) download the current version of the Additional Software.

(c) You recognize that the Additional Software constitutes proprietary and confidential information and trade secrets belonging to ALM and, in some cases, third parties. You agree to treat the Additional Software as strictly confidential and not to disclose or permit the disclosure of the Additional Software to any third party without ALM’s prior written consent. You agree not to modify, enhance, translate, disassemble or reverse engineer the Additional Software in any manner or for any reason. You further agree not to copy the Additional Software, in whole or in part, other than for the limited purpose of creating a single archival or backup copy. You will reproduce without modification on every copy of the Additional Software all copyright, confidentiality and other proprietary notices included on the original version or otherwise provided by ALM.

4. Indemnity. You will indemnify, defend and hold harmless ALM and its affiliates, and their officers, directors, employees and agents (each, an "Indemnified Party") from and against any and all claims, demands, lawsuits, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys' fees, costs of investigation and any legal or other expenses or costs (each, a "Liability") incurred or suffered by any Indemnified Party arising out of, in connection with or resulting from your access or use of the Website or Vault, unless any such Liability is caused by the gross negligence or willful misconduct of ALM, in which case the indemnification obligations hereunder shall not apply. In no event will ALM be responsible for any loss or damage caused by your failure to perform your responsibilities under this Agreement.

5. Security. Although information that you transmit over or store on Vault may be password-protected, ALM does not guarantee the security of any information transmitted over or stored on Vault. You assume the risk for any information that you transmit over or store on Vault and ALM specifically disclaims any liability arising in connection with any theft or loss of your information transmitted over or stored on Vault.

6. Ownership of Stored Information. ALM acknowledges and agrees that any information transmitted or stored by you through Vault is your property. Except as otherwise set forth in this Section 6, ALM will not use or disclose any information transmitted or stored by you through Vault. For purposes of operation, maintenance or safety, ALM may copy, store and distribute internally any such information and will use reasonable care to prevent a loss of, alteration of, or improper access to such information. However, ALM does not guarantee these procedures will prevent the loss of, alteration of, or improper access to any such information.

7. Service Level Warranties. The service level warranties provided by ALM for Vault are specified on Schedule A attached hereto. EXCEPT FOR THE SERVICE LEVELS EXPRESSLY SET FORTH ON SCHEDULE A, ALM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OR THE PERFORMANCE OF VAULT WILL MEET ANY REQUIREMENTS THAT YOU MAY HAVE, AND ALM DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALM does not warrant uninterrupted or error free operation of Vault. You will permit ALM to take all appropriate measures to correct any deficiency in Vault and, in the absence of a reasonable opportunity to correct any such deficiency, ALM will not be in breach of its obligations. ALM may, at its option, substitute for or add to Vault and take such other measures as may be necessary to correct any deficiency.

8. No Liability for Unauthorized Use. You are solely responsible for ensuring that each password for Vault is utilized only by you or, if applicable, by your authorized employees and agents. ALM shall have no liability for any loss, claim, damage or other liability that may arise from the unauthorized use of a password. If a password is lost or stolen or if you have reason to believe that your Vault account is no longer secure for any reason, it is your responsibility to notify ALM of such loss or theft so that the password can be deactivated and a new password assigned. ALM will use commercially reasonable efforts to effect password deactivation requests promptly after their receipt in writing from you.

9. Limitation of Liability. IN NO EVENT WILL ALM BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS) ARISING OUT OR RELATED TO VAULT OR THIS AGREEMENT REGARDLESS OF THE NATURE OR BASIS OF THE CLAIM INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT OR STRICT LIABILITY CLAIMS. IN ADDITION, EXCEPT FOR THE SERVICE LEVEL WARRANTIES SPECIFIED IN SCHEDULE A HERETO, ALM SHALL HAVE NO LIABILITY OF ANY KIND OR NATURE TO YOU ARISING OUT OF OR RELATED TO (i) YOUR USE OF OR INABILITY TO USE VAULT, OR (ii) ANY UNAUTHORIZED USE OF VAULT BY USER OR OTHERS WHO OBTAIN YOUR PASSWORD BY ANY METHOD WHATSOEVER (EVEN IF ALM HAS BEEN ADVISED OF SUCH UNAUTHORIZED USE IN ACCORDANCE WITH SECTION 8 OF THIS AGREEMENT) UNLESS SUCH PASSWORD IS DISCLOSED DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ALM. IN THE EVENT THAT ALM IS LIABLE TO YOU FOR ANY LOSS ARISING OUT OF OR RELATED TO VAULT OR THIS AGREEMENT, ALM'S AGGREGATE LIABILITY TO YOU WILL IN NO EVENT EXCEED THE AMOUNT OF ANY ACTUAL MONETARY LOSS OR DAMAGES SUFFERED UP TO, AND NOT IN EXCESS OF, THE AGGREGATE FEES PAID BY YOU TO ALM UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM.

10. Export Restrictions. This Agreement is expressly made subject to any laws, regulations, orders or other restrictions on the export of Vault from the United States, which may be imposed from time to time by the government of the United States. Persons from certain restricted countries may be prohibited from using Vault. You acknowledge and agree that ALM may restrict any use of Vault that ALM deems to be in violation of United States export restrictions or other applicable law.

11. Term. This Agreement shall commence as of the date hereof and continue for one year unless sooner terminated as provided for in the following sentence. You may terminate this Agreement at any time and for any reason within 100 days of accepting the terms and conditions thereof by giving written notice thereof to ALM. If you terminate this Agreement in accordance with the terms of the preceding sentence, ALM will refund all fees paid by you hereunder.

12. Modifications. ALM reserves the right to modify Vault at any time, provided that such modifications do not have a material adverse impact on the Vault service. You hereby agree to accept any such modifications to Vault.

13. Arbitration. Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Oklahoma City, Oklahoma, and the decision of the arbitrator shall be final, binding and enforceable in any court of competent jurisdiction. The arbitrator shall not have the authority to award punitive, consequential or indirect damages against either party, and each of the parties hereby waives the right to such damages. Notwithstanding anything to the contrary herein, either party may seek any interim or preliminary relief from a court of competent jurisdiction in Oklahoma City, Oklahoma necessary to protect the rights or property of such party pending the completion of arbitration.

14. Entire Agreement. This Agreement (including Schedule A attached hereto) represents the entire agreement between ALM and you with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings and agreements, written or oral.

15. Governing Law. This Agreement shall be construed and governed under the laws of the State of Oklahoma, excluding the application of its choice of law principles.

16. Waiver. Neither the failure nor the delay of a party in exercising, enforcing or taking action with respect to any of such party's rights or powers hereunder shall operate as a waiver of such rights or powers. No single or partial exercise by a party of any of its powers or rights will preclude such party from exercising such powers and rights in the future or from exercising other powers and rights.

SCHEDULE A

SERVICE LEVELS

The Vault will be available 99% of the time, except for Scheduled Downtime. Scheduled Downtime will consist of up to eight hours per month and will occur between the hours of 11:00 p.m. and 7:00 a.m. Oklahoma time. Customers will be notified at least 24 hours prior to the Scheduled Downtime. If unplanned, emergency maintenance is required, customers will be notified via e-mail or message board of the maintenance action and the time period needed to complete the work.

If you agree that the above terms and conditions of this Agreement will govern your on-going use of the Website and Vault, click "Yes."

If you do not agree to the above terms and conditions of this agreement, click "No."

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN YOU AND ALM AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. YOU ALSO AGREE THAT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT APPLY TO YOUR USE OF VAULT, SHOULD YOU CHOOSE TO PROCEED WITH THE USE AND IMPLEMENTATION OF VAULT.