These Terms of Service govern access to and use of BreakEven+™ and related services provided by Servvian Products, LLC.
The applicable Order and these Terms of Service form an agreement between Servvian Products, LLC, whose mailing address is 1580 S Milwaukee Ave, Suite 310, Libertyville, Illinois (“Vendor”), and the business entity executing the agreement (“Customer”). This agreement becomes effective on the date Customer clicks “Accepted and Agreed To” (the “Effective Date”).
The following capitalized terms have the meanings below whenever used in this Agreement.
“Customer Data” means data in electronic form input or collected through the Service by or from Customer, including without limitation by Customer’s Users.
“Documentation” means Vendor’s standard manual related to use of the Service in printed or electronic form.
“Order” means an order for access to the Service.
“Privacy Policy” means Vendor’s privacy policy, currently posted at bep.breakevenpro.com.
“Service” means Vendor’s generally available software-as-a-service, BreakEven+™ for cost estimation and forecast reporting for labor intense businesses primarily contractors and subcontractors.
“SLA” means Vendor’s standard service level agreement, currently posted at bep.servvian.com.
“Term” is defined in Section 11.1 below.
“Updates” means any corrections, bug fixes, new features or functions added to the Service, but does not include new versions that Vendor markets and sells separately.
“User” means any individual who uses the Service on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
During the Term, Customer may access and use the Service pursuant to this Agreement and any outstanding Order, including the features and functions required by the applicable Order.
Vendor shall provide the remedies listed in the SLA for any failure of the Service described in the SLA. These remedies are Customer’s sole remedy for a service failure. If the SLA does not list a remedy for a specific failure, Customer has no remedy for that failure.
Credits issued under the SLA apply only to future invoices and are forfeited upon termination. Vendor is not required to issue refunds or make payments against such credits under any circumstances.
Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Service.
Vendor may modify Service features and functions or the SLA at any time, including by removing features, removing functions, or reducing service levels, without notice, provided the change does not materially affect the Service.
If a revision materially reduces features or functionality provided under an Order, Vendor will notify Customer. Customer may terminate that Order within 30 days of receiving notice, without cause, or terminate the Agreement if that Order is the only Order outstanding.
If a revision to the SLA materially reduces service levels under an outstanding Order, the revision will not take effect for that Order until the start of the Term beginning 45 or more days after Vendor posts the revision and informs Customer.
Vendor’s contact page is the primary point of contact for issues raised by Customer.
Customer shall pay Vendor all fees in accordance with each Order (the “Service Fee”). Vendor is not required to refund the Service Fee under any circumstances. Updates to the Service are included in the Service Fee.
All orders are subject to Vendor acceptance in its discretion. Customer ordering information must be current, complete, and accurate, and Customer is responsible for notifying Vendor of any changes.
Unless Vendor receives Customer’s prior written consent, Vendor shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Service, and shall not intentionally grant third parties access to Customer Data except subcontractors subject to a reasonable nondisclosure agreement.
Vendor may disclose Customer Data if required by applicable law or proper legal or governmental authority. Vendor shall provide prompt notice and reasonably cooperate with Customer, at Customer’s expense, in seeking protection or contesting disclosure.
The Privacy Policy applies only to the Service and not to any third-party website or service linked to, recommended by, or referred through the Service or Vendor staff.
Customer recognizes that online hosting involves risks of unauthorized disclosure or exposure. By using the Service, Customer assumes such risks. Vendor makes no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or third-party actions.
Vendor is not responsible for the accuracy of any data uploaded to the Service by Customer or Users.
Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
Customer represents and warrants that Customer Data does not and will not include any data regulated pursuant to excluded data laws. Customer agrees Vendor has no liability for failure to protect excluded data and that the Service is not intended for managing excluded data.
Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in its sole discretion. Aggregate Data means Customer Data with personally identifiable information and identifying names and addresses removed.
Customer shall comply with the AUP. Customer shall not:
Vendor may suspend access immediately without advance notice if it suspects a breach of this section.
Customer shall take reasonable steps to prevent unauthorized access, including safeguarding passwords and log-in information, and shall notify Vendor immediately of any suspected breach or unauthorized use.
Customer shall comply with all applicable laws in its use of the Service, including laws governing the protection of personally identifiable information and Customer Data.
Customer is responsible and liable for Users’ use of the Service, including unauthorized conduct, and for any use of the Service through Customer’s account, whether authorized or unauthorized.
Anonymous, aggregate information may be used by third-party vendors for analytical research, benchmarking, troubleshooting, and support. Customer’s personally identifiable information will not be shared with or sold to third parties.
Customer agrees and acknowledges that Customer data, including financial or personal information, may be transferred to a third party located in a country that does not have adequate security controls.
The Service may require access to third-party services. Customer authorizes relevant third-party providers, including Intuit, to obtain Customer data from third parties and share it with Vendor for the Services. Vendor may also provide Customer data to those providers.
Customer is responsible for reviewing the terms governing such third-party services and recognizes that access may be suspended or terminated at the provider’s discretion.
Customer is fully responsible for the security of data on Customer’s website or otherwise in Customer’s possession or control and must comply with applicable state and federal laws. Where applicable, Customer is responsible for PCI-DSS and PA-DSS compliance.
Customer acknowledges that Intuit is a third-party beneficiary of this Agreement with rights to enforce its terms.
Vendor retains all right, title, and interest in and to the Service, including all software, graphics, user interfaces, logos, trademarks, modifications, derivative works, and upgrades. This Agreement does not grant Customer any intellectual property rights in the Service.
Vendor does not agree to treat Feedback as confidential. Nothing in this Agreement restricts Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback without compensating or crediting Customer or Users.
“Feedback” means any suggestion or idea for improving or modifying Vendor’s products or services.
“Confidential Information” includes information marked confidential, orally designated confidential and confirmed in writing, Documentation, and other nonpublic or sensitive information Customer should reasonably consider confidential. It excludes information already in Customer’s possession, independently developed, publicly known through no fault of Customer, or approved for release by Vendor.
Customer shall not use Confidential Information except as needed to access and use the Service. Customer shall not disclose Confidential Information except to employees or contractors who need access for that purpose and who are bound by nondisclosure terms no less restrictive than this Agreement.
Customer agrees that breach of this Article 7 would cause irreparable injury and that Vendor is entitled to injunctive relief in addition to any other remedy.
Obligations under Section 7.1 terminate 30 days after disclosure, except for trade secrets, which remain protected as long as applicable law provides trade secret protection. Upon termination, Customer shall return or destroy all Confidential Information.
This Agreement does not transfer ownership of Confidential Information or grant any license to it. Vendor retains all rights in Confidential Information.
Customer acknowledges and agrees that the Services, third-party services, and any data provided through them are provided “as is” and “as available.” Vendor, its licensors, and third-party service providers disclaim all express, implied, and statutory warranties, including warranties of merchantability, fitness for a particular purpose, and non-infringement.
Vendor does not warrant uninterrupted or error-free performance, security from hacking or unauthorized intrusion, or that Customer Data will remain private or secure. Vendor has no obligation to indemnify or defend Customer against intellectual property claims.
Customer represents and warrants that it has authority to enter into and perform this Agreement, that it has accurately identified itself, and that it is a lawful business entity or sole proprietorship owned by an individual 18 years or older.
Customer shall defend, indemnify, and hold harmless Vendor and Vendor Associates against any third-party claim, suit, or proceeding arising out of or related to Customer’s use, misuse, or failure to use the Service, including claims by Users, employees, customers, claims related to unauthorized disclosure of private information, and claims related to infringement or privacy violations arising from content uploaded through Customer’s account.
Customer’s indemnification obligations include legal fees, court costs, settlements, and judgments. Vendor has the right to reject any settlement that requires admission of wrongdoing or imposes continuing obligations on Vendor.
Vendor’s liability arising out of or related to this Agreement will not exceed the total amount of fees paid and payable by Customer to Vendor during the twelve-month period immediately preceding the first act giving rise to liability.
In no event will Vendor be liable for consequential, indirect, special, incidental, or punitive damages, regardless of theory of liability and even if such damages were foreseeable or Vendor was advised of the possibility.
These limitations apply to negligence, contract, tort, strict product liability, and otherwise, and also apply to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and representatives.
The Agreement begins on the Effective Date and continues for the period set forth in the Order or, if none is stated, for one year. It renews automatically for successive one-year periods unless either party gives written notice of non-renewal at least 30 days before renewal.
Either party may terminate this Agreement for material breach by written notice specifying the breach, effective in 30 days unless the breach is cured first. Vendor may terminate immediately if Customer or a User breaches Section 5.1.
Termination does not release Customer from payment obligations that accrued before termination. On the effective date of termination, Vendor may cancel access to the Service, and Customer shall cease use of the Service and delete, destroy, or return all copies of the Documentation.
Sections relating to fees, IP, confidentiality, indemnification, limitation of liability, and any provision that must survive to fulfill its essential purpose will survive termination or expiration.
The parties are independent contractors. Neither party is the agent of the other and neither may make commitments on the other’s behalf.
All notices must be in writing. Vendor may send notices to Customer’s email contact points, deemed received 24 hours after sending. Customer may send notices through Contact Us, deemed received 72 hours after sending.
No delay, failure, or default other than failure to pay fees when due will constitute breach while a force majeure event persists. Force majeure may include natural disasters, war, terrorism, cyberterrorism, data breach, hacking, ISP disruptions, labor disputes, riots, embargoes, governmental acts, and causes beyond reasonable control.
Customer may not assign this Agreement without Vendor’s express written consent. Subject to that restriction, this Agreement binds and benefits the parties and their successors and assigns.
If any provision is held invalid or unenforceable, it shall be interpreted to fulfill its intended purpose to the maximum extent permitted, and the remaining provisions will remain in full force and effect.
No waiver will be effective except through an explicit written waiver by an authorized representative. No waiver of one breach is a waiver of any other breach.
This Agreement and all claims arising out of or related to it are governed by the laws of the State of Illinois, including applicable federal law, without regard to conflicts of law principles. The parties consent to the exclusive jurisdiction of the federal and state courts of Lake County, Illinois.
If there is a conflict between this Agreement and any Vendor policy posted online, including the Privacy Policy, this Agreement governs.
Customer shall not permit third parties to access or use the Service in violation of U.S. law or regulation, and shall not export software provided by Vendor except in compliance with applicable U.S. laws and regulations.
This Agreement is the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions relating to its subject matter.
Vendor may amend this Agreement by posting an amended version at its Website and sending Customer written notice. The amendment becomes effective 30 days after notice unless Customer first rejects it in writing. If rejected, the current version continues until the next Term unless Customer terminates under Article 11.
Vendor may revise the Privacy Policy and Acceptable Use Policy at any time by posting a new version at the Website, and that new version becomes effective on the posting date.