EULA: Evosus® Legacy Product
EVOSUS PROVIDES THE EVOSUS SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THIS EULA. BY SIGNING THE ORDER FORM AND/OR ORDERING FROM THE SITE YOU (A) ACCEPT THIS EULA AND AGREE THAT YOU 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 YOU IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF YOU AND BIND YOU TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, EVOSUS WILL NOT AND DOES NOT LICENSE THE LEGACY PRODUCT TO YOU AND YOU MUST NOT ACCESS, DOWNLOAD, OR INSTALL THE LEGACY PRODUCT OR ASSOCIATED SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR YOUR YOU’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS EULA, AND THIS EULA EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE OR LEGACY PRODUCT THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF EVOSUS’S LEGACY PRODUCT.
By accepting this EULA, Client agrees to its terms, conditions, license grant, and your rights and obligations.
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:
Evosus Legacy Product
i. Legacy Product. 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”) through Our website located at evosus.com (“Site”) and related merchant products (“Products”) located at lou.store (“the LOU Store”). The Legacy Product, and all underlying intellectual property and data, are owned exclusively by Evosus, and is licensed to you pursuant to this EULA for the License Term as defined below.
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 Legacy Product. You may also then download a copy of the Legacy Product 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.
ii. Additional Services. Additional services, such as Evosus Mobile Service, Evosus Hosting Service, Evosus Backup & Disaster Recovery Service, Evosus API Access, Consulting and Training programs (“Additional Services”) may be added for additional fees that will be paid on a monthly basis. If you cancel an Additional Service during the License Term of your Legacy Product License, you will no longer have access to that Additional Service unless reinstated. If you select an Additional Service that is not integrated into the Evosus Services, you are responsible for reviewing and accepting the third party’s terms and conditions and applicable privacy policies. By opting in or choosing an offer, promotion, discount, or deal with any of our third-party vendors, partners, or affiliates, you hereby agree and acknowledge that we may share your contact information for the third-party to contact you directly.
Legacy Product License: Delivery, Use, License Grant and Restrictions
a. Delivery. Delivery of the Legacy Product will be deemed to have taken place when Evosus installs the Legacy Product on Clients’ server or other host device, and the Evosus has notified the Client that the Legacy Product is available (“Delivery”).
c. 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”). Not withstanding the preceding sentence, your Legacy Product License will expire on December 31, 2026 when Evosus will stop supporting the Legacy Product. 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 Product 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.
d. Purpose. In granting you the Legacy Product License, you agree to use the Legacy Product solely for purposes of streamlining and growing your own organization. Client'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 Client may have purchased from Evosus at Evosus's applicable pricing). The Legacy Product License grants the Client the right to: Download, copy and install in accordance with this Agreement one (1) copy of the Legacy Product 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, Client. Unless the Order Form expressly states that Client is purchasing a network license, each such device shall be for a single Authorized User or Named User.
e. Rights Reserved. All rights not expressly granted herein to Client are reserved by Evosus. There is no transfer of ownership of the Intellectual Property from Evosus 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 Evosus.
f. License Restrictionsi. 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, 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 Evosus provides 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).
ii. You shall not copy, disassemble, decompile or reverse engineer the Legacy Product or create any tool using similar ideas, features, functions or graphics of the Legacy Product to build a competitive product, software or service.
iii. 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.
iv. You shall not use the Legacy Product to provide services on any application service providers, software-as-a-service or service bureau basis.
v. You may not claim to be approved, recommended, or “certified” by Evosus.
vi. You shall not remove or export from the United States or allow the export or re-export of the Services, Legacy Product 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 Legacy Product 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.
vii. Client 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.
viii. Client shall not use the License Material in violation of any law, regulation, or rule.
Fees, Services and Payments
i. License Fee. In consideration for the Legacy Product License, you shall pay to Evosus a one-time Legacy Product license fee for each License Term upon the Delivery of the Legacy Product (“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”).
ii. 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.
iii. Add-On Fees. 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. You may remove or purchase Additional Services at any time during the License Term of your Legacy Product License by contacting us at email@example.com.
iv. Other Fees. For any fees payable after completion of the Delivery or use hereunder (“Other Fees”), Evosus may modify such fees at its discretion upon notice to Client prior to the due date of such fees. If no payment terms are set forth on the Order Form, Client shall make payment immediately upon receipt of the Order Form.
v. Total Fees. The Order Form webpage 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. Client shall pay for all additional services provided by Evosus, and associated costs incurred by Client, which are not described herein, on a time-and-expenses basis in accordance with Evosus’s then-standard rates as established by Evosus 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. All refunds, if applicable, shall be made through the Third-Party Payment Gateways used during the time of the charge.
vi. 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 Legacy Product 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.
vii. Past-Due Charges Legacy Product License. Client 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, Evosus may (i) terminate the Client’s ability to purchase additional Legacy Product Licenses, Equipment, Hardware, or Products while charges are past due, and/or (ii) terminate any future software updates as provided herein.
viii. Taxes. All fees paid or payable to Evosus 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 Legacy Product, Documentation, Equipment, and/or the services provided hereunder. Client is solely responsible for the payment of any and all taxes resulting from this Legacy Product License, the use of the Legacy Product, Equipment, or this Agreement, except for any federal, state, or local income tax imposed on Evosus in connection with revenues associated with this Agreement. Client hereby agrees to hold harmless Evosus from and against any and all claims and liabilities arising from Client’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, Termination and Renewal
a. 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”). Notwithstanding the preceding sentence, your Legacy Product License will expire no later than December 31, 2026 when we will stop supporting the Legacy Product.
b. Termination. This Agreement is terminated as elsewhere provided in the Agreement or as follows:i. Client 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 Evosus.ii. 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 Client 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.”iii. Evosus may terminate your account at any time without cause, with prior written notification.iv. 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.v. Without limiting or waiving any of Our other rights under this Agreement, Evosus may limit, suspend, terminate, modify, or delete your Legacy Product access or access to Evosus Services if you are, or Evosus suspects that you are, failing to comply with any of this Agreement for any actual or suspected illegal or improper use of Evosus Services, with or without notice to you. Additionally, Evosus 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.
c. Effect of Termination. The Legacy Product Licenses terminate immediately upon termination of this Agreement. Termination does not entitle Client 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, Client shall immediately cease using the Legacy Product, erase or destroy all copies of the Legacy Product, Documentation, and all Confidential Information in its possession. Upon written request, Client shall furnish Evosus with a written letter signed by an executive officer of Client 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 Client terminates this Agreement, with or without cause, before the Term expires, the Client is not entitled to a return or refund of any prorated portion of the Legacy Product License. No expiration or termination shall affect Client’s obligation to pay all Client Fees and Total Fees that may have become due before such expiration or termination.
d. 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. Notwithstanding the preceding sentence, your Legacy Product License will expire on December 31, 2026 when Evosus will stop supporting the Legacy Product.
Restrictions on Legacy Product and License Material
a. You shall not use the Legacy Product 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 Legacy Product and/or License Materials.
b. You acknowledge that you have no interest in the License Materials other than the Legacy Product License granted under this Agreement. You agree that your use of the Legacy Product and/or License Material, and any goodwill in the Legacy Product 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 Legacy Product and/or License Material.
c. Client may not export or re-export this Legacy Product without the prior written consent of Evosus and without compliance with applicable US export control laws.
Evosus by its employees or agents may audit Client’s use of the License Material to ensure Client’s compliance with this Agreement, provided that Evosus gives Client ten (10) days' prior written notice. Client shall provide Evosus with all available records related to the use of the Legacy Product in order to verify that Client's use of the Legacy Product 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. Evosus also may, in its sole discretion, audit Client’s systems within three (3) months after the end of the Term to ensure Client has ceased use of the Legacy Product and removed all the copies of the Legacy Product from such systems as required hereunder. The Client shall fully cooperate with Evosus’s personnel conducting such audits and provide all reasonable access requested by the Evosus to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. During the audit(s), Evosus will only examine information directly related to the Client’s use of the Legacy Product. Evosus may conduct audits only during Client’s normal business hours and in a manner that does not unreasonably interfere with the Client’s business operations.
Evosus will bear the expense of an audit with the exception of instances where the Client is found, through such an audit, to be materially in violation of this Agreement, in which case, Client will reimburse Evosus 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%, Evosus shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Client.
Intellectual Property and Indemnification
a. Intellectual Property. This Agreement grants Client with a Legacy Product License to the Legacy Product, and in no way transfers to Client any ownership interest in the Legacy Product or underlying software and intellectual property. Evosus retain all rights, ownership and title in all intellectual property associated with the Legacy Product, Products, Service, and/or Documentation provided to Client. All trademarks, logos, trade dress and service marks seen on the website, Legacy Product, and/or Products are the intellectual property of Evosus and shall not be copied, reproduced, used, exploited, sold, licensed, assigned, or the like to a third Party, without Evosus’s expressed written consent. Evosus and its suppliers, partners, affiliates, and distributors reserve all rights not expressly granted herein. Whenever Client is permitted to copy or reproduce all or any part of the Legacy Product, all titles, trademark symbols, copyright symbols and legends, and other proprietary markings must be reproduced. Client 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. Client shall safeguard all Legacy Product (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
b. Client Trademark: Client acknowledges that Evosus 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 Client is a client of Evosus, and Client agrees that Evosus may use its name and logo in such a manner without compensation. Client 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.
c. IP Warranty. Evosus warrants to Client 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 Client's sole and exclusive remedy for breach of this warranty is indemnification as provided for in this Agreement.
d. Infringement Indemnity. Evosus agrees to defend, indemnify, and hold Client 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 Legacy Product infringes any patent, copyright, trade secret or other proprietary right of any third Party ("Claims").
e. Limitation of Indemnification. Evosus 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-Evosus 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.
f. Procedure for Indemnification. Evosus's obligations apply only if Client gives Evosus: (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 Evosus.
g. Actions by Evosus. In the event any such infringement, claim, action or allegation is brought or threatened, or if Evosus deems that there is a material risk of a Claim, Evosus may, at its sole option and expense:i. Procure for Client the right to continue its use of the Legacy Product;ii. Modify or amend the Legacy Product or infringing part thereof, or replace the Legacy Product or infringing part thereof with other software having substantially the same or better capabilities; or, if neither of the foregoing is commercially practicable; oriii. Terminate this Agreement.
License Management Legacy Product.
Evosus reserves the right to use license management software to limit Client's use of the Legacy Product to the limits stated in this Agreement. Client will not circumvent or attempt to circumvent such license management software.
Additional Legacy Product
By written agreement, the Parties may add additional Evosus software programs (“Additional Legacy Product Programs”) to this Agreement. Upon such written agreement, the additional programs will thereafter be included in "Legacy Product" under this Agreement. No terms stated in Client's Order Form or other form document will modify this Agreement. Evosus 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 Legacy Product Programs may be licensed to Client subject to different or additional terms and conditions.
Legacy Product Updates
Our Legacy Product may, from time-to-time require updates which Evosus will make available to you. You will be required to download a new version of the Legacy Product. (“Legacy Product Updates” or “Update”). These Legacy Product Updates are included in your Maintenance and Support Services.
Legacy Product Maintenance and Support Services
a. 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 Evosus 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”).
b. Scope of Maintenance Services. Unless otherwise provided, the Maintenance and Support Services shall be the services specified on Evosus’s website at http://www.evosus.com/SLA or such other webpage of which Evosus shall notify Client by email to Client’s email address. Maintenance and Support Services do not include any new version or new release of the Legacy Product that Evosus may issue as a separate or new product, and Evosus may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion. Evosus reserves the right to condition the provision of Maintenance and Support Services, including all or any Updates, on Client’s registration of the copy of Legacy Product for which support is requested. Evosus has no obligation to provide Maintenance and Support Services, including Updates: (1) for any but the 3 most current versions or releases of the Legacy Product (latest version plus 2 previous releases); (2) for any copy of Legacy Product for which all previously issued Updates have not been installed; (3) if Client is in breach under this Agreement; or (4) for any Legacy Product that has been modified other than by or with the authorization of Evosus, or that is being used with any Equipment, software, configuration, or operating system not specified in the Documentation or expressly authorized by Evosus in writing.
c. Limitations. Maintenance and Support Services do not include Client Site service visits by Evosus, or its agents, vendors, partners, or affiliates, at Client’s location. Client may request Evosus to provide additional support and maintenance services not agreed upon herein, provided that both Parties agree in writing and Client pays the additional cost required.
d. Key Personnel. In order to provide the Maintenance and Support Service and additional requested services, Client shall provide Evosus with that names and contact information for all of Client’s authorized contacts.
Limited Warranties, Exclusive Remedy, Exclusions and Disclaimers
a. Limited Warranty. Evosus warrants that for a period of thirty (30) days from the Go-Live Date (the "Warranty Period") (1) the Legacy Product will perform free from defects in materials and workmanship under normal use and (2) the Legacy Product 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 Legacy Product does not perform as warranted, and is covered by the warranty set forth herein, (a "Non-Conformity"), Evosus shall undertake to correct such Non-Conformity, or if correction is not reasonably possible, replace such Legacy Product free of charge. If the foregoing is not commercially practicable, Evosus shall terminate this Agreement and refund to Client the License Fee, subject to Client’s ceasing all use of and, if requested by Evosus, returning to Evosus all copies of the Legacy Product and License Material. If Evosus repairs or replaces the Legacy Product, the warranty will continue to run from the initial date specified on the Order Form, and not from Client’s receipt of the repair or replacement. The warranty will apply only if:i. The Legacy Product has been properly installed and properly used at all times and in accordance with the instructions for use; andii. No modification, alteration or addition has been made to the Legacy Product by persons other than Evosus or Evosus's authorized representative, except as authorized in writing by Evosus.
b. Exclusive Remedy. The foregoing are Client's sole and exclusive remedies for breach of this limited warranty. The warranty set forth above is made to and for the benefit of Client only.
c. Exclusions. THE FOREGOING WARRANTIES DO NOT APPLY, AND EVOSUS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
d. Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS EULA, THE LEGACY PRODUCT IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EVOSUS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE EVOSUSS 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 MANUFACTURING, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE EVOSUS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE YOU’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 EULA, EVOSUS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS EULA. EVOSUS 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 EVOSUS TO DISABLE THE SOFTWARE OR MAKE THE SOFTWARE INACCESSIBLE TO CLIENT AFTER THE SOFTWARE IS INSTALLED; OR (II) TO THE BEST OF EVOSUS'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.
Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: IN NO EVENT WILL EVOSUS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE EVOSUSS OR SERVICE PROVIDERS, BE LIABLE TO YOU 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 EULA, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE EVOSUS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EVOSUS WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SOFTWARE OR SERVICES.
IN NO EVENT WILL EVOSUS’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE EVOSUSS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS EULA 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 EVOSUS PURSUANT TO THIS EULA 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 Evosus 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 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 Evosus shall only disclose such data solely in aggregate or other de-identified form in connection with the business.
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.
Evosus 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 Client’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Client 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 Evosus’s prior written consent, which consent Evosus may give or withhold in its sole discretion.
Notwithstanding the preceding sentence, without consent, Client may assign this Agreement to any successor to all or substantially all its business that concerns this Agreement (whether by sale of assets or equity, merger, transfer, consolidation, or otherwise). To so assign this Agreement, Client must: (i) update the contact and other account information associated with Client’s Account to reflect the assignment, (ii) transfer all Client Content and other data associated with Client’s Account to the assignee, (iii) provide the assignee with access to Client’s Account, and (iv) contractually obligate the assignee to (A) accept and adhere to all applicable Evosus terms and conditions when prompted upon login or via use of the Evosus Services, (B) contact financial services at Evosus to apply for a new Evosus Payments account, and (C) make all payments due to Evosus under this Agreement and any other existing agreements between Client and Evosus. Please contact our Support Center at 360.735.9510 ext. 2 or firstname.lastname@example.org if you or the assignee requires assistance.
Any assignment in violation of these provisions governing assignments shall be deemed null and void ab initio. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties hereto.
Except as stated otherwise in this Agreement, Client hereby agrees to indemnify and hold harmless Evosus 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 Client’s use of the Legacy Product, Products, Documentation, and/or Equipment. Although Evosus has no obligation to monitor Client’s use of the Legacy Product, Evosus 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 Client 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.
Amendments to This Agreement
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.
Evosus's Prior Consent
Unless expressly provided otherwise in this Agreement, any prior consent of Evosus that is required before Client may take an action may be granted or withheld in Evosus's sole and absolute discretion.
Evosus will cooperate with Client to support Client’s business needs in providing services and materials under this Agreement. To assist Client, Evosus can provide estimates of the time and costs involved for work to be performed. However, many factors affecting costs and completion dates are beyond Evosus’ control, such as the extent to which Client cooperates with Evosus to assist in completing the services, availability and fluctuating costs of materials, hardware and or software product failures, and Client requested additional products or services. Because of these variables, Evosus cannot guarantee that it will complete or deliver its services and materials described or as committed. Estimates provided by Evosus are based on information Client supplied to Evosus, the applicable Evosus price and service rates, and an estimate of the hours of work and materials required. Client understands that in the spirit of cooperation, they will reasonably participate with Evosus staff and provide resources as needed by Evosus to perform its services to Client. In the event the Client does not reasonably participate with the Evosus staff, Evosus reserves the right to terminate this Agreement, and withdraw from the engagement. Client 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.
Nature of Relationship and Non-Solicitation
The parties will not be deemed or intended to have created any relationship with characteristics of an agency, partnership, employment, or joint venture. Client acknowledges that it shall have no right to control the manner, means, or method by which Evosus performs its services pursuant to this Agreement. Client agrees that during the course of this Agreement and for a period of two (2) years the termination of this Agreement, Client shall not directly or indirectly solicit or entice any of the following to cease, terminate or reduce any relationship with Evosus or to divert any business from Evosus through: (a) any employee, consultant or representative of Evosus; or (b) any contractor, vendor, or supplier of Evosus. Further, Client will not directly or indirectly disclose the names, addresses, telephone numbers, compensation, or arrangements between Evosus and any person or entity described in (a) or (b) above to any competitor of Evosus. Notwithstanding the foregoing, Client may hire a current or former employee(s) of Evosus upon Evosus’ written consent, which may be withheld for any reason or for no reason.
Choice of Law and Venue
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 Legacy Product 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 Legacy Product to, or make the Legacy Product 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 Legacy Product available outside the US.
Export Regulation; US Government Rights
The Legacy Product 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 Legacy Product to, or make the Legacy Product 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), before exporting, re-exporting, releasing, or otherwise making the Legacy Product available outside the US. You are solely liable and responsible for any claims, fines, filings, proceedings, tariffs, taxes, and/or litigation that may arise from your transfer, export, or re-export of any of the Legacy Product, with or without permission.
The Legacy Product include commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are the US Government or any contractor therefor, you shall receive only those rights with respect to the Legacy Product 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, for the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, for all other US Government licensees and their contractors.
For purposes of this Agreement, the following terms have the following meanings:
a. “Authorized User” is defined as an individual authorized by Client to use the Legacy Product regardless of whether the individual is actively using the Legacy Product at any given time.
b. “Client Site” means the physical location specified in the Order Form.
c. “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 Evosus's Confidential Information includes this Agreement and its terms, the Documentation, binary copies of the Legacy Product, source code relating to the Legacy Product, and any other proprietary information supplied to Client by Evosus, or by Client to Evosus 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.
d. “Documentation," without limitation, means any knowledge base articles, instruction manuals, operating instructions, training manuals, user manuals, and specifications provided by Evosus which describe the use of the Evosus Services, and which either accompany the Evosus Services or are provided to Client at any time.
e. “Equipment," without limitation, means the device system(s), including peripheral equipment and operating system software, servers, and others specified in the Documentation.
f. “Go-Live Date” is the date Evosus’s staff transfers the production database to your location or hosted environment or Client Site.
g. “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.
h. “Legacy Product” means the package of proprietary device software programs as identified on the Order Form. Unless specifically indicated or the context requires otherwise, the term Evosus Legacy Product shall include all Upgrades to the Evosus Legacy Product provided to you by Evosus.
i. “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 Client’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. Evosus 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 Evosus as new products. Where used herein "Releases" shall mean Major Releases or Minor Releases or both as the context requires.
j. “Named User” is defined as an individual authorized by Client 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.
k. “Order Form/Page” means the online order form, paper form, or similar document between Evosus and Client referencing the licensing of the Legacy Product, any hardware purchases, servers, Client 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 Evosus, 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.
l. “Releases” shall mean released versions, if any, to the Legacy Product.
m. “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.
n. “Third Party Component” will mean, without limitations, any component of the Legacy Product, as listed in Evosus's Documentation, provided by a third Party to Evosus and utilized and integrated as a component of the Legacy Legacy Product.
o. “Upgrade” means any modification, correction, enhancement, deletion, or substitution to the Legacy Product, including but not limited to, any data file or module thereto that may be provided by Evosus or a third party, whether under this Agreement, or any other agreement between Client and Evosus.
This EULA, together with the Legacy Terms, Order Form(s), and all other documents that are incorporated by reference herein, constitute the sole and entire agreement between Client and Evosus 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.