Welcome to Evosus®, Inc., and Our Legacy Product End User License Agreement (“EULA”, or “Agreement”, or “Legacy License Agreement”, or “Legacy EULA” or “Legacy Product EULA”), provided and maintained by Evosus, Inc., ( “Evosus”, “Licensor”, or “Company,” or “We,” or “Us,” or “Our”). The Legacy Product is an on-premise and cloud-based software that provides its users with business management software and services to help them streamline and grow their businesses (“Legacy Product” or “Software”) through Our website located at evosus.com (“Website” or “Site”) and related merchant products (“Products”) located at shopevosus.com (“ShopEvosus”).
The Legacy Product, and all underlying intellectual property and data, is owned exclusively by Evosus, and is licensed to You pursuant to this Agreement for the License Term as defined below.
LICENSOR PROVIDES THE EVOSUS SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY SIGNING THE ORDER FORM AND/OR ORDERING FROM THE SITE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE LEGACY PRODUCT TO LICENSEE AND YOU MUST NOT ACCESS NOR DOWNLOAD NOR INSTALL THE LEGACY PRODUCT OR ASSOCIATED SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE OR LEGACY PRODUCT THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S LEGACY PRODUCT.
By accepting this Agreement, You agree to its terms, conditions, license grant, and Your rights and obligations. All rights not expressly granted herein to You are reserved by Evosus.
In consideration of mutual promises and full access and use of Evosus Services, and upon the terms and conditions set forth below, the Parties agree as follows:
For purposes of this Agreement, the following terms have the following meanings:
“Documentation," without limitation, means any knowledge base articles, instruction manuals, operating instructions, training manuals, user manuals, and specifications provided by Licensor which describe the use of the Evosus Services, and which either accompany the Evosus Services or are provided to Customer at any time.
“Equipment," without limitation, means the device system(s), including peripheral equipment and operating system software, servers, and others specified in the Documentation.
“Intellectual Property Rights,” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Authorized User” is defined as an individual authorized by Customer to use the Legacy Product regardless of whether the individual is actively using the Legacy Product at any given time.
“Named User” is defined as an individual authorized by Customer to use the Legacy Product regardless of whether the individual is actively using the Legacy Product at any given time. Each Named User will be assigned a unique username and password in order to access and use the Evosus Services.
“Releases” shall mean released versions, if any, to the Legacy Product.
“Major Releases” involve substantial and material modification, addition or removal of functionality. Major Releases are designated by a change in the number to the left of the decimal point of the number appearing after the product name. "Minor Releases" generally contain changes or fixes that will not materially affect Customer’s access or use of the Legacy Product. Minor Releases are designated by a change in such number to the right of the decimal point. Licensor is the sole determiner of the availability and designation of an update as a Major Release or Minor Release. Major Releases exclude software Releases which are reasonably designated by Licensor as new products. Where used herein "Releases" shall mean Major Releases or Minor Releases or both as the context requires.
“Customer Site” means the physical location specified in the Order Form.
“Subsidiary” means, without limitations, all current and future business entities as to which a Party owns, directly or indirectly, more than fifty percent (50%) of the equity ownership and voting rights that provide the power to select the management of the entities, for so long as such ownership and control exists.
“Third Party Component” will mean, without limitations, any component of the Software, as listed in Licensor's Documentation, provided by a third Party to Licensor and utilized and integrated as a component of the Software.
“Go-Live Date” is the date Licensor’s staff transfers the production database to Your location or hosted environment or Customer Site.
“Licensor Software” means the package of proprietary device software programs as identified on the Order Form. Unless specifically indicated or the context requires otherwise, the term Licensor Software shall include all Upgrades to the Licensor Software provided to You by Licensor.
“Order Form/Page” means the online order form, paper form, or similar document between Us and You referencing the licensing of the Legacy Product, any hardware purchases, servers, Licensee Fee(s), and any Maintenance and Support Fees, or Additional Service fees, Training fees, filled out and submitted in writing by or on behalf of You, and accepted by Us, for Your purchase of the license for the Legacy Product granted under this Agreement, or through a click through acceptance. The Order Form/Page is a material part of this Agreement, and is incorporated herein by reference.
“Upgrade” means any modification, correction, enhancement, deletion, or substitution to the Software, including but not limited to, any data file or module thereto that may be provided by Licensor or a third Party, whether under this Agreement, or any other agreement between You and Us.
“Confidential Information” means non-public information, technical data or know-how of a Party and/ or its Subsidiaries, which is furnished to the other Party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential. The Parties agree that Licensor's Confidential Information includes this Agreement and its terms, the Documentation, binary copies of the Software, source code relating to the Software, and any other proprietary information supplied to Customer by Licensor, or by Customer to Licensor and marked as "confidential information" or the like. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving Party and not subject to a confidentiality obligation to the providing Party; (ii) independently developed by the receiving Party; (iii) publicly disclosed through no fault of the receiving Party; (iv) rightfully received by the receiving Party from a third Party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing Party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order.
You may access and use the Legacy Product on a PC and/or laptop by purchasing an on-premise server or leasing server space (“Legacy Product Server”). Once You have purchased the Legacy Product, You can then set up the Legacy Product Server so that it can run Our Software. You may also then download a copy of the Software to the Legacy Product Server, subject to any restrictions in this End User License Agreement. Please note that Our Legacy Product is not compatible with mobile devices and tablets, with the exception of the Evosus Mobile Service add-on. Further, the Legacy Product is not compatible with Mac or Apple devices, again with the exception of the Evosus Mobile Service add-on.
Delivery. Delivery of the Legacy Product will be deemed to have taken place when Licensor installs the Legacy Product on Customers’ server or other host device, and the Licensor has notified the Customer that the Software is available (“Delivery”).
Grant of License. Legacy Product License. In return for the License Fee, Evosus gives You a five (5) year limited, worldwide, royalty-free, non-assignable and non-exclusive license to use the Legacy Product provided to You by Evosus as part of Evosus Services (“Legacy Product License”). This Legacy Product License is for the sole purpose of enabling You to use Evosus Services as provided by Evosus, in the manner permitted by this Agreement, and shall not be used for any other purposes by You. You shall not copy, duplicate, modify, distribute, sell, publish, sublicense, transfer, creative derivative works, or lease any part of Evosus Services or included software, nor may You reverse engineer or attempt to extract the source code of Evosus Services.
Notwithstanding the foregoing, You have the right to make one (1) copy of Our Legacy Software under the Legacy Product License solely for archival purposes, provided that You shall not, and shall not allow any third party not subject to this Agreement to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that You uninstall and otherwise delete such inoperable copies. All copies of the Legacy Product software made by You: (i) shall be the exclusive property of Evosus; (ii) shall be subject to the terms and conditions of this Agreement; and (iii) shall include all trademark, copyright, patent, and other Intellectual Property rights notices contained in the original Legacy Product software, and Site. You shall provide written notification to Evosus of each transfer of the Legacy Product to another Authorized User or Named User’s device, including in such notice the information for each device on which the Legacy Product is properly installed. The number of devices that have the Legacy Product software properly installed on shall not exceed the number designated in the Order Form/Page.
In granting You the Legacy Product License, You agree to use the Legacy Product solely for purposes of streamlining and growing Your own organization. Customer's Legacy Product License to use the Legacy Product is limited to the number of concurrent Named Users stated on the Order Form (or such greater number as Customer may have purchased from Licensor at Licensor's applicable pricing). The Legacy Product License grants the Licensee the right to: Download, copy and install in accordance with this Agreement one (1) copy of the Software on one (1) device/each of the number of designated devices or Names Users set forth on the Order Form, owned or leased, and controlled by, Licensee. Unless the Order Form expressly states that Licensee is purchasing a network license, each such device shall be for a single Authorized User or Named User.
There is no transfer of ownership of the Intellectual Property from Us to You, at any time. You are granted no right, title or license in any of Our trademarks, copyright, patents, confidential information, and/or Intellectual Property unless otherwise provided in this Agreement or approved in writing by Us.
You shall not license, sublicense, sell, resell, transfer without written notification, assign without written notification, distribute or otherwise commercially exploit or make the Legacy Product, Equipment, Documentation and/or Products (“License Material”) available to any third Party in any way except as provided in this Legacy Product License. You may only use the Legacy Product, Equipment, Documentation and/or Products for Yourself or Your associated entity. Unless We provide written authorization, You shall not train or otherwise allow any third Party to use the Legacy Product, Equipment, Documentation and/or Products but shall inform anyone who seeks permission to use the Legacy Product, Equipment, Documentation and/or Products commercially to contact Evosus and seek their own license(s).
You shall not copy, disassemble, decompile or reverse engineer the Software or create any tool using similar ideas, features, functions or graphics of the Software to build a competitive product, software or service.
In no event shall You create derivative works that use the Legacy Product License, License Material and its contents and/or Confidential Information with commercially available materials. You may not represent derivative works as created by, endorsed by, approved by, or sanctioned in any way by Evosus. All derivative works shall include attribution and disclaimers, as reasonably necessary, to identify those portions which are part of the Software as distinct from those portions that may be Your independent works.
You shall not use the Software to provide services on any application service providers, software-as-a-service or service bureau basis.
You may not claim to be approved, recommended, or “certified” by Evosus.
You shall not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features that Evosus has in place.
Use the License Material in violation of any law, regulation, or rule.
License Fee. In consideration for the Legacy Product License, You shall pay to Licensor a one-time Legacy Product license fee for each License Term upon the Delivery of the Software (“Legacy Product License Fee”), and in the amount designated on the respective Order Form/Page. Legacy Product License Fees are based on the total number of concurrent users in a month. You may, at any time, increase the amount of additional concurrent users for one Legacy Product License. However, You shall not be able to decrease the number of licenses or concurrent users, without purchasing a new Legacy Product License.
Upon paying the Legacy Product License Fee for a Legacy Product License, You shall have access to limited Implementation Services, (up to ten weeks) to help You get the Legacy Product running (“Implementation Service”).
Additional Services, such as Evosus Mobile Service, Evosus Hosting Service, Evosus Backup & Disaster Recovery Service, Consulting and Training programs may be added for additional fees that will be paid on a monthly basis.
The Order Form/Page may include, along with the Legacy Product License Fee, other fees including any applicable Maintenance and Support Service Fees, Add-On Fees, and Implementation Service Fees, and other charges and expenses (collectively “Total Fees”), that shall be paid on a monthly basis. The Total Fees shall be paid upon completing an Order Form/Page or a similar online page. The Total Fees shall be paid in U.S. Dollars, unless otherwise specifically agreed in writing by both Parties. Customer shall pay for all additional services provided by Licensor, and associated costs incurred by Licensee, which are not described herein, on a time-and-expenses basis in accordance with Licensor’s then standard rates as established by Licensor from time to time. All payments shall be paid in full when due, without right of deduction or set-off, unless agreed upon in writing by both Parties.
For any fees payable after completion of the Delivery and/or use hereunder (“Additional Fees”), Licensor may modify such fees at its discretion upon notice to Customer prior to the due date of such fees. If no payment terms are set forth on the Order Form/Page, Customer shall make payment immediately upon receipt of the Order Form/Page.
All refunds, if applicable, shall be made through the Third Party Payment Gateways used during the time of the charge.
Implementation Service Fee: There may be a one-time Implementation Service fee when You purchase a Legacy Product License. The Implementation Service includes up to ten (10) hours of implementation assistance (ex. via phone and/or screen sharing software). Implementation Service and associated fees may vary depending on the package You choose.
Maintenance and Support Fee: Maintenance and Support fees shall be outlined on the respective Order Form/Page (“Maintenance and Support Fees”). Maintenance and Support Fees are paid on a monthly basis for the entire License Term, and are calculated based on the number of Legacy Product licensed users. As such, if You purchase additional user licenses, there is a corresponding increase in monthly Maintenance and Support Fees. You may be required to complete and submit another Order Form/Page when adding additional user’s Legacy Product licenses. In the event that You elect not to continue paying for Maintenance and Support Services, and later seek to reinstate such Maintenance and Support Services and/or receive Software Updates, it will be in Our sole discretion whether to reinstate such Maintenance and Support Services and on what terms. If You fail to pay any portion of the monthly Maintenance and Support Service Fee, You shall no longer have access to the Legacy Product, and failure to pay all or a portion of the monthly Maintenance and Support Fee shall be considered a material breach of this EULA.
Add-On Fees: You may choose to add additional features and services (“Additional Services”) provided by Us and/or Our third party vendors. Some Additional Services may include, without limitation, Evosus Mobile Service, Evosus Hosting Service and Evosus Card Services. Additional Services may require one-time and recurring fees depending on the services You choose (“Add-on Fees”). Payment for these Additional Services shall be made upon executing an Order Form/Page. You may access, remove and/or purchase Additional Services at any time during the License Term of Your Legacy Product License by logging into Your Account and using the administrative tools. Further information about Additional Services are located on Your Order Form(s).
Legacy Product License: Customer agrees to pay a charge for any amounts that are more than thirty (30) days past due at the rate of the lesser of (i) one and one-half percent (1.5%) per month or (ii) the greatest rate allowed by law. In addition, Licensor may (i) terminate the Customer’s ability to purchase additional Software Licenses, Equipment, Hardware and/or Products while charges are past due, and/or (ii) terminate any future software updates as provided herein.
Taxes. All fees paid or payable to Licensor are exclusive of any federal, state, or local excise, sales, use, intangible, import charges, value added, or other taxes, duties or similar assessments imposed with respect to the Software, Documentation, Equipment, and/or the services provided hereunder. Customer is solely responsible for the payment of any and all taxes resulting from this Legacy Product License, the use of the Software, Equipment, or this Agreement, except for any federal, state, or local income tax imposed on Licensor in connection with revenues associated with this Agreement. Customer hereby agrees to hold harmless Licensor from and against any and all claims and liabilities arising from Customer’s failure to report or pay any such taxes, duties or similar assessments if any and to promptly pay any such taxes, duties or similar assessments that may become due.
Term. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or for five (5) consecutive years after the Effective Date (the “License Term” or “Term”).
Termination. This Agreement is terminated as elsewhere provided in the Agreement or as follows:
Licensee may terminate this Agreement at any time and with or without cause, by ceasing to use and destroying all copies of the Legacy Product, License Material and Documentation, and upon thirty (30) day written notice to Licensor.
Evosus may hold all User Content (defined in the Legacy Terms of Service) and information provided by You upon termination of this Agreement (“Retained Information”). Retained Information may be accessed by Licensee within two (2) years of termination of this Agreement, otherwise all Retained Information shall be destroyed. Should You want to access the Retained Information, You may be required to pay a reinstatement fee “Reinstatement Fee.”
Licensor may terminate Your account at any time without cause, with prior written notification.
Either Party may terminate this Agreement and its Legacy Product License grant by written notice upon the occurrence of any of the following events: (i) in the event the other Party materially breaches this Agreement and such breach has not, or cannot, be cured within thirty (30) days after receiving written notice of the breach; or (ii) in the event the other Party (a) terminates or suspends its business, (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state law, (c) becomes insolvent or subject to control by a trustee, receiver or similar authority, or (d) has wound up or liquidated, voluntarily or otherwise.
Without limiting or waiving any of Our other rights under these Terms, We may limit, suspend, terminate, modify, or delete Your Legacy Product access or access to Evosus Services if You are, or We suspect that You are, failing to comply with any of these Terms for any actual or suspected illegal or improper use of Evosus Services, with or without notice to You. Additionally, We may limit, suspend, terminate, modify, or limit Your access to Evosus Services if We believe that You are infringing Our intellectual property rights or third parties’, or are acting inconsistently with the letter or spirit of Our Terms or any published policies. Data will be removed from all applicable devices when Your access to the Legacy Product or Legacy License is terminated, but only as technically feasible.
Effect of Termination. The Legacy Product Licenses terminate immediately upon termination of this Agreement. Termination does not entitle Customer to any refund or return of payment except as expressly stated in this Agreement. Within fourteen (14) days after the date of termination or discontinuance of the Legacy License, Customer shall immediately cease using the Software, erase or destroy all copies of the Software, Documentation and all Confidential Information in its possession. Upon written request, Customer shall furnish Licensor with a written letter signed by an executive officer of Customer verifying that the process described in the preceding sentence has been completed. The right of either Party to terminate this Agreement shall not be affected in any way by its waiver of or failure to take action with respect to any previous default. The rights and remedies provided to Evosus under this Agreement will not be exclusive and will be in addition to all other rights and remedies available at law or in equity. This subsection shall survive any expiration or termination of this Agreement. If Customer terminates this Agreement, with or without cause, before the Term expires, the Customer is not entitled to a return or refund of any prorated portion of the Software License. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees and Total Fees that may have become due before such expiration or termination.
Renewal. This EULA shall be automatically renewable at the end of the five (5) year License Term upon timely and full payment of the then current Renewal Fee and/or new Legacy Product License Fee. Any renewal of the Legacy Product License or Total Fees, hereunder shall not be effective until the fees for such renewal have been paid in full.
You shall not use the Software and/or its License Materials in connection with any activity that: (i) is illegal; (ii) defames, ridicules, disparages, or in any way is intended to cause harm to Evosus, its founders, owners, employees, agents, sponsors, licensors, licensees or other individual, entity or organization, or each of their products or services; or (iii) that otherwise damages the reputation for quality inherent in the Software and/or License Materials.
You acknowledge that You have no interest in the License Materials other than the Software License granted under this Agreement. You agree that Your use of the Software and/or License Material, and any goodwill in the Software and/or License Materials resulting from Your use will inure solely to Evosus’ benefit and will not create any right, ownership, title or interest for You in the Software and/or License Material.
Customer may not export or re-export this Software without the prior written consent of Licensor and without compliance with applicable US export control laws.
Licensor by its employees or agents may audit Licensee’s use of the License Material to ensure Licensee’s compliance with this Agreement, provided that Licensor gives Licensee ten (10) days' prior written notice. Licensee shall provide Licensor with all available records related to the use of the Software in order to verify that Customer's use of the Software is in accordance to the constraints of this Agreement.
No more than one (1) audit may be conducted in any twelve (12) month period except for good cause shown. Licensor also may, in its sole discretion, audit Licensee’s systems within three (3) months after the end of the Term to ensure Licensee has ceased use of the Software and removed all the copies of the Software from such systems as required hereunder. The Licensee shall fully cooperate with Licensor’s personnel conducting such audits and provide all reasonable access requested by the Licensor to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. During the audit(s), Licensor will only examine information directly related to the Licensee’s use of the Software. Licensor may conduct audits only during Licensee’s normal business hours and in a manner that does not unreasonably interfere with the Licensee’s business operations.
Licensor will bear the expense of an audit with the exception of instances where the Customer is found, through such an audit, to be materially in violation of this Agreement, in which case, Customer will reimburse Licensor for the time, travel and material costs and fees reasonably associated with the audit. The audit and its results will be subject to the restrictions of this Agreement regarding Confidential Information.
If the use exceeds or exceeded the use permitted by this Agreement by more than 10%, Licensor shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee.
Intellectual Property. This Agreement grants Customer with a Legacy Product License to the Legacy Product, and in no way transfers to Customer any ownership interest in the Legacy Product or underlying software and intellectual property. Licensor retain all rights, ownership and title in all intellectual property associated with the Legacy Product, Products, Service, and/or Documentation provided to Customer. All trademarks, logos, trade dress and service marks seen on the website, Software, and/or Products are the intellectual property of Licensor and shall not be copied, reproduced, used, exploited, sold, licensed, assigned, or the like to a third Party, without Licensor’s expressed written consent. Licensor and its suppliers, partners, affiliates, and distributors reserve all rights not expressly granted herein. Whenever Customer is permitted to copy or reproduce all or any part of the Software, all titles, trademark symbols, copyright symbols and legends, and other proprietary markings must be reproduced. Licensee does not acquire any ownership interest in the Legacy Product under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
Licensee Trademark: Customer acknowledges that Licensor may desire to use its name and logo publicly on its web site, press releases, social media, product brochures, financial reports and other media channels indicating that Customer is a customer of Licensor, and Customer agrees that Licensor may use its name and logo in such a manner without compensation. Customer reserves the right to review any use of its name or logo and to grant or withhold permission, provided that permission will not reasonably be withheld.
IP Warranty. Licensor warrants to Customer that it and its suppliers, partners, affiliates, and distributors, own the legal rights to the Legacy Product to provide the Legacy Product License herein. The Customer's sole and exclusive remedy for breach of this warranty is indemnification as provided for in this Agreement.
Infringement Indemnity. Licensor agrees to defend, indemnify, and hold Customer harmless from and against any and all costs, judgments, damages and awards in lawsuits, proceedings or actions brought by any third Party, and costs in connection with the defense thereof (including, without limitation, court fees and reasonable attorney's fees), resulting from any claim or allegation that the Software infringes any patent, copyright, trade secret or other proprietary right of any third Party ("Claims").
Limitation of Indemnification. Licensor assumes no liability for, any Claims to the extent arising from (i) use of a modified version of the Legacy Product, (ii) the combination, operation or use of the Legacy Product with non-Licensor programs, data, methods or technology if such infringement would have been avoided without the combination, operation or use of the Legacy Product with other programs, data, methods or technology, or (iii) unlicensed use of the Legacy Product.
Procedure for Indemnification. Licensor's obligations apply only if Customer gives Licensor: (i) prompt written notice of the Claim; (ii) sole control of the defense and settlement of such Claims; and (iii) assistance when reasonably requested by Licensor.
Actions by Licensor. In the event any such infringement, claim, action or allegation is brought or threatened, or if Licensor deems that there is a material risk of a Claim, Licensor may, at its sole option and expense:
Procure for Customer the right to continue its use of the Software; or
Modify or amend the Software or infringing part thereof, or replace the Software or infringing part thereof with other software having substantially the same or better capabilities; or, if neither of the foregoing is commercially practicable; or
Terminate this Agreement.
Licensor reserves the right to use license management software to limit Customer's use of the Software to the limits stated in this Agreement. Customer will not circumvent or attempt to circumvent such license management software.
By written agreement, the Parties may add additional Licensor software programs (“Additional Software Programs”) to this Agreement. Upon such written agreement, the additional programs will thereafter be included in "Software" under this Agreement. No terms stated in Customer's Order Form or other form document will modify this Agreement. Licensor reserves the right to require different or additional terms and conditions for the licensing of any additional software.
Any Third Party Component used in or with such Additional Software Programs may be licensed to Customer subject to different or additional terms and conditions.
Our Legacy Product may, from time-to-time require updates which We will make available to You. You will be required to download a new version of the Software. (“Software Updates” or “Update”). These Software Updates are included in Your Maintenance and Support Services.
Maintenance and Support Services. Unless otherwise provided on the Order Form/Page, You shall purchase support maintenance and support services (“Maintenance and Support Services”) commencing from the Go-Live Date, to be paid monthly, until the end of the License Term. All Maintenance and Support Services are provided by Licensor and not third parties. Maintenance and Support Services cannot be limited to certain Log-In Users; therefore, if You want to have Maintenance and Support Services for any Log-In Users under the EULA and this Agreement, then it will be required to have Maintenance and Support Services for all Log-In Users and Named Users under the EULA and this Agreement. Maintenance and Support Services are month-to-month terms and are required as part of this Agreement and the Legacy EULA (“Maintenance Term”).
Scope of Maintenance Services. Unless otherwise provided, the Maintenance and Support Services shall be the services specified on Licensor’s website at http://www.evosus.com/SLA or such other webpage of which Licensor shall notify Customer by email to Customer’s email address. Maintenance and Support Services do not include any new version or new release of the Legacy Product that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion. Licensor reserves the right to condition the provision of Maintenance and Support Services, including all or any Updates, on Licensee’s registration of the copy of Software for which support is requested. Licensor has no obligation to provide Maintenance and Support Services, including Updates: (1) for any but the 3 most current versions or releases of the Software (latest version plus 2 previous releases); (2) for any copy of Software for which all previously issued Updates have not been installed; (3) if Licensee is in breach under this Agreement; or (4) for any Software that has been modified other than by or with the authorization of Licensor, or that is being used with any Equipment, software, configuration, or operating system not specified in the Documentation or expressly authorized by Licensor in writing.
Limitations. Maintenance and Support Services do not include Customer Site service visits by Licensor, or its agents, vendors, partners, or affiliates, at Customer’s location. Licensee may request Licensor to provide additional support and maintenance services not agreed upon herein, provided that both Parties agree in writing and Licensee pays the additional cost required.
Key Personnel. In order to provide the Maintenance and Support Service and additional requested services, Customer shall provide Us with that names and contact information for all of Customer’s authorized contacts.
Limited Warranty. Licensor warrants that for a period of thirty (30) days from the Go-Live Date (the "Warranty Period") (1) the Software will perform free from defects in materials and workmanship under normal use and (2) the Software will substantially contain the functionality described in the Documentation, and when properly installed on a device meeting the specifications set forth herein, and operated in accordance with, the Documentation, will substantially perform in accordance therewith. If during the Warranty Period the Software does not perform as warranted, and is covered by the warranty set forth herein, (a "Non-Conformity"), Licensor shall undertake to correct such Non-Conformity, or if correction is not reasonably possible, replace such Software free of charge. If the foregoing is not commercially practicable, Licensor shall terminate this Agreement and refund to Customer the License Fee, subject to Licensee’s ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software and License Material. If Licensor repairs or replaces the Software, the warranty will continue to run from the initial date specified on the Order Form, and not from Licensee’s receipt of the repair or replacement. The warranty will apply only if:
The Software has been properly installed and properly used at all times and in accordance with the instructions for use; and
No modification, alteration or addition has been made to the Software by persons other than Licensor or Licensor's authorized representative, except as authorized in writing by Licensor.
Exclusive Remedy. The foregoing are Customer's sole and exclusive remedies for breach of this limited warranty. The warranty set forth above is made to and for the benefit of Customer only.
Exclusions. THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, THE LEGACY PRODUCT IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER THE SOFTWARE NOR ANY ENHANCEMENTS, MODIFICATIONS, UPGRADES, UPDATES, REVISIONS OR RELEASES THEREOF SHALL CONTAIN (I) ANY MECHANISM SUCH AS A "TRAP DOOR," "TIME BOMB," OR "LOGIC BOMB," SOFTWARE PROTECTION ROUTINE OR OTHER SIMILAR DEVICE, THAT WOULD ENABLE LICENSOR TO DISABLE THE SOFTWARE OR MAKE THE SOFTWARE INACCESSIBLE TO CUSTOMER AFTER THE SOFTWARE IS INSTALLED; OR (II) TO THE BEST OF LICENSOR'S KNOWLEDGE, ANY DEVICE "VIRUS," "WORM" OR SIMILAR PROGRAMMING ROUTINE. THIS EXCLUDES THE PROCESS OF UTILIZING PROPER SOFTWARE INSTALLATION CODES TO MAINTAIN ONES ACTIVE SOFTWARE LICENSE.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SOFTWARE OR SERVICES.
IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE.
Neither Party will use the other Party's Confidential Information during the term of this Agreement except as reasonably required for the performance of this Agreement. In addition, the confidentiality obligations set forth in this Section will survive for five (5) years after the termination or expiration of this Agreement. Each Party will hold in confidence the other Party's Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each Party agrees not to disclose the other Party's Confidential Information to anyone other than its employees or subcontractors who are bound by these confidentiality obligations and who are required to use the Confidential Information to successfully perform or assist such Party's obligations hereunder.
You agree: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in regard to using the Services or Licensed Materials, or as otherwise permitted herein) or divulge to any third person any such Confidential Information. Both Parties agree that the foregoing shall not apply with respect to any information that can be evidenced (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from Us, or (c) was rightfully disclosed to it without restriction by a third Party, or (d) was independently developed without use of any of Our Proprietary Information or (e) is required to be disclosed by law.
You acknowledge that We may collect Your business data including, including but not limited to inventory and pricing as well as end-user data, including but not limited to names, email addresses, physical addresses, and order details such as items ordered, amounts, transactional details, payment and renewal amounts (“End-User Data”). In performance of the Service, Company has permission to disclose End-User Data and Your Data to third-parties and to payment processors if necessary, and to use such End-User Data for business analytics and internal use. You represent and warrant that You have permission from Your end-users to share End-User Data with Company, and for Company to share End-User Data with third-parties in the performance of the Services. With that acknowledgement in mind, it is important to note that We shall only disclose such data solely in aggregate or other de-identified form in connection with the business.
Injunctive Relief. In the event of actual or threatened breach of this Section, the non-breaching Party will have no adequate remedy at law and will be entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion.
Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization (“Transaction”) involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Licensor’s prior written consent is required. In such a case, Licensor will have no obligation to extend price discounts or any other non-standard terms and conditions to operations of the acquiring or new controlling entity's businesses outside the scope of the businesses or operations of Customer as they existed before the Transaction.
Except as stated otherwise in this Agreement, Licensee hereby agrees to indemnify and hold harmless Licensor against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of this Agreement, or otherwise from Licensee’s use of the Software, Products, Documentation, and/or Equipment. Although Licensor has no obligation to monitor Licensee’s use of the Software, Licensor may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the second day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form.
Neither Party will incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, but the inability to meet financial obligations is expressly excluded.
Any waiver of the provisions of this Agreement or of a Party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such Party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party's right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement or that such Party is entitled by law to enforce.
If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law. The parties agree to negotiate substitute language to nearly replace any part of this Agreement that is found to be invalid or unenforceable.
This Agreement may only be amended, modified, or supplemented by an agreement in writing agreed upon by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Unless expressly provided otherwise in this Agreement, any prior consent of Licensor that is required before Customer may take an action may be granted or withheld in Licensor's sole and absolute discretion.
Licensor will cooperate with Customer to support Customer’s business needs in providing services and materials under this Agreement. To assist Customer, Licensor can provide estimates of the time and costs involved for work to be performed. However, many factors affecting costs and completion dates are beyond Licensor’ control, such as the extent to which Customer cooperates with Licensor to assist in completing the services, availability and fluctuating costs of materials, hardware and or software product failures, and Customer requested additional products or services. Because of these variables, Licensor cannot guarantee that it will complete or deliver its services and materials described or as committed. Estimates provided by Licensor are based on information Customer supplied to Licensor, the applicable Licensor price and service rates, and an estimate of the hours of work and materials required. Customer understands that in the spirit of cooperation, they will reasonably participate with Licensor staff and provide resources as needed by Licensor to perform its services to Customer. In the event the Customer does not reasonably participate with the Licensor staff, Licensor reserves the right to terminate this Agreement, and withdraw from the engagement. Customer understands that any form of payment withholding with regard to any circumstances outlined above, constitutes a delinquent payment and subjects them to late fees and interest as well as our right to terminate this Agreement.
The parties will not be deemed or intended to have created any relationship with characteristics of an agency, partnership, employment, or joint venture. Customer acknowledges that it shall have no right to control the manner, means, or method by which Licensor performs its services pursuant to this Agreement. Customer agrees that during the course of this Agreement and for a period of two (2) years the termination of this Agreement, Customer shall not directly or indirectly solicit or entice any of the following to cease, terminate or reduce any relationship with Licensor or to divert any business from Licensor through: (a) any employee, consultant or representative of Licensor; or (b) any contractor, vendor, or supplier of Licensor. Further, Customer will not directly or indirectly disclose the names, addresses, telephone numbers, compensation, or arrangements between Licensor and any person or entity described in (a) or (b) above to any competitor of Licensor. Notwithstanding the foregoing, Customer may hire a current or former employee(s) of Licensor upon Licensor’ written consent, which may be withheld for any reason or for no reason.
Any claim arising under or relating to this Agreement shall be governed by the laws of the State of Washington without regard to conflict of laws. Each Party hereby agrees that the courts located in Clark County of the State of Washington shall have sole jurisdiction and venue for all disputes and litigation arising under or relating to this Agreement. In the event any suit or action is filed to enforce or interpret the terms and obligations of this Agreement, the prevailing Party shall be entitled to its reasonable attorney fees and costs, including reasonable post-judgment attorney fees incurred in collection efforts.
The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
This Agreement, together with the Order Form, and all other documents that are incorporated by reference herein, constitute the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.