EULA: LOU®

Last Updated November 10, 2022.

 

This is the End User License Agreement (“EULA”) for LOU, our software as a solution provided and maintained by Evosus®, Inc. ( “Evosus”, “Licensor”, “we,” or “us”). This EULA, along with Our Privacy Policy and Terms of Service incorporated herein by reference, create a binding agreement between you and/or your company (the “Licensee”, or “you”, “user,” or “Customer”) and Evosus. Evosus and you may be individually referred to herein as a "Party" and collectively as the "Parties". 

LICENSOR PROVIDES THE EVOSUS SERVICES SPECIFIED HEREIN SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. 

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:

  1. ACCEPTANCE

     

    By accessing or using LOU Software, Products, or other Evosus Services, or by clicking or checking a box to accept this EULA wherever it may be presented to you, you: (a) accept this EULA and agree to be bound by its terms; and (b) represent and warrant that: (i) you are of legal age and capacity to form a legal agreement; (ii) if you represent at company, organization or other legal entity (“Entity”), you have the right, power and authority to enter into this EULA on behalf of such Entity and bind such Entity to its terms. If you do not agree with this EULA, you may not use LOU Software or Products and no license is granted to you hereunder.

  2. LOU SOFTWARE AND PRODUCTS

     

    LOU is a cloud-based software that provides its users with business management software and services to help them streamline and grow their businesses (“LOU Software”) through evosus.com (“Site”) and related merchant products (“Products”) located at lou.store. Customers may access and use LOU Software through the Site on a maximum of three devices per Named User. LOU Software may, from time-to-time require updates which may occur automatically on your device once a new version or feature is available. Some of our Products, such as hardware bundles, training programs and consulting services, can be purchased at lou.store

    1. License

      In exchange for your payment of the License Fee described below, Evosus grants you a thirty (30) day limited, revocable, royalty-free, non-assignable and non-exclusive license to use LOU Software provided to you by Evosus as part of Evosus Services for the sole purpose of enabling you to use Evosus Services in the manner permitted by this EULA (the “LOU Software License”). LOU Software License does not permit you to use LOU Software for any other purposes. Any other use of LOU Software not granted by this EULA is expressly prohibited.

      You agree to use LOU Software solely for purposes of streamlining and growing your own organization. There is no transfer of ownership of the Evosus Intellectual Property Rights 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 Rights unless otherwise provided in this EULA or approved in writing by us.

      Some of Evosus Services may be offered under an open-source license that we will make available to 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. You agree to not download any Content unless that specific Content is accompanied by a “download” or similar link.

      You acknowledge that you have no interest in the License Materials other than LOU Software License granted under this EULA. You agree that your use of LOU Software or License Material, and any goodwill in LOU Software 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 LOU Software and/or License Material.

      THIS EULA EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE OR SAAS SOLUTION THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S LOU SOFTWARE.

    2. License Model

      You may increase, decrease, leave unchanged or terminate your LOU Software License at any time, so as to fit the number of users you need at any given moment. Notwithstanding the preceding sentence, the maximum number of Named Users on the Pro plan is 10. License Fees are based on the maximum number of Named Users and services that are active at any given time in a thirty (30) day period, the Plan You choose, the Bundles You choose, and the number of add-ons turned on during the thirty (30) day period. Plans include, without limitation, Pro and Enterprise ("Plans"). Bundles include, without limitation, Foundation (free), Retail, Service and Retail / Service bundles (“Bundles”) which are further defined on the Pricing page on evosus.com. Add-On Fees are based on the price and quantity of Additional Services You had turned on during a given thirty (30) day period. Licensor reserves the right to use license management software to limit Licensee’s use of LOU Software to the limits stated in this EULA. Licensee will not circumvent or attempt to circumvent such license management software.

    3. Privacy

      By using LOU Software, you also agree and comply with the terms and privacy notices of any third-party hosting service we may use, such as Google Cloud and Microsoft Azure. Information provided through LOU Software may be collected, recorded, stored and/or maintained by Evosus for business purposes and business analytics. For further information about your information collected from LOU Software, please review our Privacy Policy.

    4. Communications

      You agree that we may send you service announcements, administrative messages, notifications, offers, promotions, affiliate information and other important information. You may opt out of some of those communications by clicking the “unsubscribe” button on the bottom of all emails sent from Evosus to you. However, you may not opt-out and/or unsubscribe from email from Us that involves material information regarding Your Account. You may invite other users to use Evosus Services, which will require Us to send those invited users’ emails. By voluntarily opting in or choosing an offer, promotion, discount and/or deal with any of Our vendors, partners, or affiliates, you hereby agree and acknowledge that We may send your contact information for the third-party to contact You directly. You may opt out of that communication directly with the third-party affiliate, partner, or vendor at any time and in compliance with their applicable terms of use and privacy policies.

    5. Training Materials

      Evosus may provide training to you or your business, agents, employees, contractors, affiliates or vendors that are also subject to this EULA. Training may include online or remote consulting, webinars, on-site education, or collateral in printed or digital form. All training materials (e.g., workbooks, webinars, print or digital material, consulting information) is the intellectual property of Evosus, and you shall not use, copy, replicate, sell, sublicense, transfer, distribute, or publish without the prior written approval of Evosus.

    6. License Restrictions

      You shall not license, sublicense, sell, resell, transfer without written notification, assign without written notification, distribute or otherwise commercially exploit or make LOU Software, Equipment, Documentation and/or Products (“License Material”) available to any third Party in any way except as provided in this LOU Software License. You may only use LOU Software, 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 LOU Software, Equipment, Documentation and/or Products but shall inform anyone who seeks permission to use LOU Software, Equipment, Documentation and/or Products commercially to contact Evosus and seek their own license(s). Named Users shall not share, permit or allow access to his or her respective unique username and password in order to enable someone else to access or use Evosus Services.

      You shall not use LOU Software 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 LOU Software and/or License Materials.

      You shall not copy, disassemble, decompile or reverse engineer LOU Software or create any tool using similar ideas, features, functions or graphics of LOU Software to build a competitive product, software or service.

      In no event shall You create derivative works that use LOU Software 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 LOU Software as distinct from those portions that may be Your independent works. 

      You shall not use LOU 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 may not export or re-export this Software without the prior written consent of Licensor and without compliance with applicable US export control laws. 

      LOU Software is only authorized for use with the United States.

      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, LOU 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 EULA and will be prohibited except to the extent expressly permitted by the terms of this EULA. 
      vii.  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.

  3. Fees, Services and Payments
     
    1. License Fee

      You agree to pay the fees associated with LOU Software License and license model you select and any changes you make to your selections from time to time (“License Fee”), as well as any and all applicable sales and use taxes for the purchase of your subscription based on the address that you provide when you register as a Customer. Your License Fee is determined by (i) the number of Named Users and/or services you select; (ii) the Plans and/or Bundles you select; (iii) any Additional Services or Add-ons you use. License Fees and other amounts are quoted in United States dollars and are subject to change from time-to-time. We will notify you in advance of such change.

    2. Professional Onboarding Fee

      Evosus charges a one-time Professional Onboarding Fee due at the time you sign up for LOU Software. The Professional Onboarding Fee includes up to five (5) hours of remote assistance (ex. via phone and/or screen sharing software). Professional onboarding fees may vary depending on the Plan and/or Bundle you select.

    3. Additional Services and Add-On Fees

      You may choose to add additional features and services offered by Evosus or third-party vendors (“Additional Services”), such as Evosus Card Services, Evosus API Access and 3rd party integrations. Additional Services may incur a fee (“Add-on Fees”). Payment for an Add-on Fee is due upon signup for the Additional Service. You may access, remove and/or purchase Additional Services at any time by logging into your Account and making your selections. 

      If you cancel an Additional Service during the License Term of your LOU Software 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 voluntarily opting in or choosing an offer, promotion, discount and/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.

    4. Billing and Payment

      The initial License Fee is due upon downloading and using the Evosus Service and/or LOU Software. Subsequent License Fees are billed on a 30-day billing subscription (each a “License Term”) and your payment method will be automatically charged every 30 days.  Billing for your subscription starts on the day you sign up and continue until you cancel or change your subscription. You will be billed for each calendar day of your subscription including a full calendar day on the day you sign up.

      You agree to pay your License Fee, Professional Onboarding Fee, and Add-On Fees, each as applicable, along with all applicable sales tax or use tax required by law (collectively “Total Fees”). The Total Fees shall be paid in U.S. Dollars. Customer shall pay for any Additional Services provided by Licensor, and associated costs incurred by Licensor, which are not described herein, on a time-and-expenses basis. The Total Fees shall be paid in full when due, without right of deduction or set-off.

      We use third party payment gateways (“Third-Party Payment Gateways”), such as TSYS, to process Our Fees and payments. By using Evosus Services, you hereby agree to the terms of use and privacy policy of the then-current Third-Party Payment Gateway. We are not liable for any issues arising from or related to Your breach of any Third-Party Payment Gateway’s policies. We may, from time-to-time, change Third Party Payment Gateways, and shall provide you with written notice of such change. All information collected through Our Third-Party Payment Gateway, such as credit card information, names, and addresses, may be accessible to us but will not be used by us. We are not liable for any data or security breach, or compromised personal information that is caused, directly or indirectly, by the Third-Party Payment Gateway.

      Evosus reserves the right to modify the fees charged for any Evosus Services upon notice to Customer prior to the due date of such fees. If no payment terms are set forth on the Signup Process, Customer shall make payment immediately upon receipt of the Sign-Up Process, when applicable. All Fee refunds shall be made through the Third-Party Payment Gateway, if applicable. 

    5. Renewal

      This EULA shall be automatically renewable at the end of the 30-day License Term upon timely and full payment of the then current Renewal Fee and/or new LOU Software License Fee. Any renewal of LOU Software License or Total Fees hereunder shall not be effective until the fees for such renewal have been paid in full.

    6. Late Payment and Other Fees

      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 User Licenses, Additional Services, Equipment, hardware and/or Products while charges are past due, and/or (ii) terminate any future software updates as provided herein. 

      If you do not go live on LOU Software within 60 days of your Go-Live date, you will be charged $200 every 30 days that your account is not live.

      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 LOU Software, Documentation, Equipment, and/or the services provided hereunder. Customer is solely responsible for the payment of any and all taxes resulting from this LOU Software License, the use of LOU Software, Equipment, or this EULA, except for any federal, state, or local income tax imposed on Licensor in connection with revenues associated with this EULA. 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.

  4. Term, Termination and Renewal
    1. Term

      This EULA is immediately effective upon signing up for LOU Software (“Effective Date”) and continues for a thirty (30) day billing cycle, unless cancelled by you, with an automatic renewal (“License Term”).

    2. Termination

      This EULA may be terminated as elsewhere provided in the Terms of Service or as follows:

      1. Licensee may terminate this EULA at any time and with or without cause, by logging into the admin tool of LOU Software and canceling their account. Upon termination, Licensee will not be refunded the Professional Onboarding Fee, or any portion of the License Fee or Add-On Fees for the month in which Licensee cancelled their Account. If Licensor or cancels their Account before the License Fee Term expires, Licensee will have access to Evosus Services until the end of the current License Fee Term. However, Licensee will no longer have access to use any Additional Service or Add-ons that Licensee cancels during the License Fee Term.
      2. Licensor may terminate Your account at any time without cause, with prior written notification.
      3. Either Party may terminate this EULA and its LOU Software License grant by written notice upon the occurrence of any of the following events: (i) in the event the other Party materially breaches this EULA 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.
      4. Without limiting or waiving any of our other rights under this EULA, Evosus may limit, suspend, terminate, modify, or delete your LOU Software access or access to Evosus Services if you are, or we suspect that you are, failing to comply with any of the terms of this EULA 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 of Service or any published policies. Data will be removed from all applicable devices when your access to LOU Software or LOU Software License is terminated, but only as technically feasible.
    3. Effect of Termination

      LOU Software Licenses terminate immediately upon termination of this EULA, and vice versa. Termination does not entitle You to any refund or return of any portion of the Professional Onboarding Fee, License Fee, Add-On fees or other charges  except as expressly stated in this EULA. If Customer terminates this EULA, with or without cause, before the Term expires, the Customer is not entitled to a return or refund of any prorated portion of LOU 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. 

      Following termination, Evosus may hold all or some of the User Content (defined in the Terms of Service) and information provided by you after termination of this EULA (“Retained Information”). Retained Information may be accessed by Licensee up to two (2) years of termination of this EULA, otherwise all Retained Information shall be destroyed. Should You want to access the Retained Information, Licensee may be required to pay a reinstatement fee “Reinstatement Fee.” 

      Immediately after the date of termination or discontinuance of LOU Software License, you shall cease using LOU Software Documentation and all Confidential Information in your possession.LOU Software License shall terminate immediately upon cancelation of your Account. The right of either Party to terminate this EULA 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 EULA 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 EULA. 

  5. Intellectual Property

    LOU Software, and all underlying intellectual property and data, is owned exclusively by Evosus, and is licensed to you pursuant to this EULA for the License Term as defined below.

    1. Intellectual Property

      This EULA grants Customer with a LOU Software License to access and use LOU Software, and in no way transfers to Customer any ownership interest or title in LOU Software or underlying software and intellectual property. Licensor retains all rights, ownership and title in all intellectual property associated with LOU Software, 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 LOU Software, all titles, trademark symbols, copyright symbols and legends, and other proprietary markings must be reproduced. Licensee does not acquire any ownership interest in LOU Software under this EULA, 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 EULA. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.

    2. Trademarks

      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 and approve (not to be unreasonably withheld) any use of its name or logo.

    3. IP Warranty

      Licensor warrants to Customer that it and its suppliers, partners, affiliates, and distributors, own the legal rights to LOU Software to provide LOU Software License herein. The Customer's sole and exclusive remedy for breach of this warranty is indemnification as provided for in this EULA.

  6. Indemnification
     
    1. Evosus Indemnity

      Evosus agrees to defend, indemnify, and hold you 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 LOU Software infringes any patent, copyright, trade secret or other proprietary right of any third Party ("IP Claims"). Notwithstanding the foregoing, Evosus assumes no liability for, any IP Claims to the extent arising from (i) use of a modified version of LOU Software, (ii) the combination, operation or use of LOU Software with non-Licensor programs, data, methods or technology if such infringement would have been avoided without the combination, operation or use ofLOU Software with other programs, data, methods or technology, or (iii) unlicensed use ofLOU Software. Evosus’s obligations apply only if you give us: (A) prompt written notice of the Claim; (B) sole control of the defense and settlement of such Claims; and (C) assistance when reasonably requested by Licensor.

      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 an IP Claim, Evosus may, at its sole option and expense: (x) procure for you the right to continue your use of LOU Software; (y) modify or amend LOU Software or infringing part thereof, or replace LOU 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 (z) terminate this EULA.

    2. Customer Indemnity

      You agree to defend, indemnify, and hold Evosus (including our affiliates, officers, employees, agents, and subsidiaries) harmless from and against any direct or third-party claims, losses, liabilities, costs, expenses, damages, or demands (“Third-Party Claims”) including without limitation reasonable attorneys’ fees due to, relating to, or arising out of (i) your access to or use of LOU Software, Products, Documentation, and/or Equipment; (ii) your breach or alleged breach of this EULA or any representation or warranty made by you hereunder; or (iii) your violation of any law or the rights of any party. Notwithstanding anything to the contrary in this section, Evosus may select its own legal counsel to represent its interests when defending against direct or Third-Party Claims, and you must (A) reimburse Evosus for its costs and attorneys’ fees immediately upon request as they are incurred and (B) remain responsible to Evosus for any loss, liability, cost, expense, claim, damage, or demand identified in this section.

  7. Compliance Measures

    Licensor may audit Licensee’s use of the License Material to ensure Licensee’s compliance with this EULA. Licensor must give Licensee at least five (5) days' prior written notice of such audit. Licensee shall provide Licensor with all available records related to the use of LOU Software to verify that Customer's use of LOU Software is in accordance with the constraints of this EULA. No more than one (1) audit may be conducted in any twelve (12) month period except for good cause shown or in fulfillment of Licensor’s legal obligations. Licensor also may, in its sole discretion, audit Licensee’s systems within three (3) months after the end of the License Term to ensure Licensee has discontinued all use of LOU Software and removed all the copies of LOU Software from such systems as required hereunder. 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. 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 except in instances where Licensee is found, through such an audit, to be materially in violation of this EULA, in which case, Licensee 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 EULA regarding Confidential Information. If Licensee’s use of LOU Software or any other Evosus Services exceeds or exceeded the use permitted by this EULA by more than 10%, Licensor shall also have the right to terminate this EULA and the license granted hereunder, effective immediately upon written notice to Licensee.

  8. Limited Warranty

    Licensor warrants that for a period of thirty (30) days from the Go-Live Date (the "Warranty Period"): (a) LOU Software will perform free from defects in materials and workmanship under normal use and (b) LOU 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 LOU 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 EULA 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 LOU Software and License Material. If Licensor repairs or replaces LOU 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: (i) LOU Software has been properly installed and properly used at all times and in accordance with the instructions for use; and (ii) no modification, alteration or addition has been made to LOU Software by persons other than Licensor or Licensor's authorized representative, except as authorized in writing by Licensor.

    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. THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.

  9. Disclaimers

    EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, LOU SOFTWARE 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 LOU 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 LOU SOFTWARE NOR ANY ENHANCEMENTS, MODIFICATIONS, UPGRADES, UPDATES, REVISIONS OR RELEASES THEREOF SHALL CONTAIN (A) 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 LOU SOFTWARE OR MAKE LOU SOFTWARE INACCESSIBLE TO CUSTOMER AFTER LOU SOFTWARE IS INSTALLED; OR (B) 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.

  10. Limited Liability

    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 LOU 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 LOU 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 ACCESS TO LOU SOFTWARE.

  11. Additional Software

    By written agreement, the Parties may add additional Evosus software programs (“Additional Software Programs”) to this EULA. Upon such written agreement, the Additional Software Programs will thereafter be included in "Software" under this EULA. No terms stated in your Order Form or other form document will modify this EULA. 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 Software Programs may be licensed to you subject to different or additional terms and conditions. 

  12. Confidentiality

    Neither Party will use the other Party's Confidential Information during the term of this EULA except as reasonably required for the performance of this EULA. In addition, the confidentiality obligations set forth in this Section will survive for five (5) years after the termination or expiration of this EULA. 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.

    1. Obligations

      You agree: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except regarding 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.

    2. End User Data

      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.

    3. 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.

  13. Nature of Relationship; 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. Customer acknowledges that it shall have no right to control the manner, means, or method by which Licensor performs its services pursuant to this EULA. Customer agrees that during the course of this EULA and for a period of two (2) years the termination of this EULA, 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.

  14. Assignment

    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 EULA without Licensee’s consent. This EULA is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this EULA, 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. Notwithstanding the preceding sentence, without consent, Licensee may assign this EULA to any successor to all or substantially all its business that concerns this EULA (whether by sale of assets or equity, merger, transfer, consolidation, or otherwise). To so assign this EULA, Licensee must: (i) update the contact and other account information associated with Licensee’s Account to reflect the assignment, (ii) transfer all Client Content and other data associated with Licensee’s Account to the assignee, (iii) provide the assignee with access to Licensee’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 register a card services merchant account, and (C) make all payments due to Evosus under this EULA and any other existing agreements between Licensee and Evosus. Please contact our Support Center at 360.735.9510 ext. 2 or support@evosus.com 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 EULA shall be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties hereto.

  15. General Terms
     
    1. Notice

      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 in the Sign-Up Process.

    2. Evosus Prior Consent

      Unless expressly provided otherwise in this EULA, any prior consent of Evosus that is required before you may take an action may be granted or withheld in our sole and absolute discretion.

    3. Cooperation

      Estimates provided by Evosus are based on information you supplied to us, the applicable price and service rates, and an estimate of the hours of work and materials required. You understand that in the spirit of cooperation, you will reasonably participate with Evosus staff and provide resources as needed by Licensor to perform its services to you. In the event you do not reasonably participate with Evosus staff, Evosus reserves the right to terminate this EULA, and withdraw from the engagement. You understand 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 EULA.

    4. Choice of Law; Venue

      Any claim arising under or relating to this EULA 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 EULA. In the event any suit or action is filed to enforce or interpret the terms and obligations of this EULA, the prevailing Party shall be entitled to its reasonable attorney fees and costs, including reasonable post-judgment attorney fees incurred in collection efforts.

    5. Force Majeure

      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 EULA 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, pandemic, 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.

    6. Severability; Waiver

      If any term, condition, or provision in this EULA 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 EULA. 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 EULA that is found to be invalid or unenforceable.

      Any waiver of the provisions of this EULA or of a Party's rights or remedies under this EULA must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this EULA 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 EULA and will not in any way affect the validity of the whole or any part of this EULA or prejudice such Party's right to take subsequent action. Except as expressly stated in this EULA, no exercise or enforcement by either Party of any right or remedy under this EULA will preclude the enforcement by such Party of any other right or remedy under this EULA or that such Party is entitled by law to enforce.

    7. Amendments

      This EULA 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 EULA, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this EULA 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.

  16. Definitions:

    For purposes of this EULA, the following terms have the following meanings:

    “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 EULA. 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 EULA and its terms, the Documentation, binary copies of LOU Software, source code relating to LOU 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.

    “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(s), including peripheral equipment and operating system software, servers, and others specified in the Documentation.

    “Go-Live Date” is the date You complete the Account Sign Up process in LOU Software.

    “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.

    “Named User” is defined as an individual authorized by Customer to use LOU Software regardless of whether the individual is actively using LOU Software at any given time. Each Named User will be assigned a unique username and password in order to access and use Evosus Services.

    “Third Party Component” will mean, without limitations, any component of LOU Software, as listed in Licensor's Documentation, provided by a third Party to Licensor and utilized and integrated as a component of LOU Software.

    “Sign-Up Process” means the online forms and corresponding fields that You complete when You create an Account for LOU Software. The Sign-Up Process references the Fees you’ll pay, when appropriate, and is submitted by You, and accepted by Us, which constitutes Your purchase of the license for LOU Software. The Sign-Up Process is a material part of this EULA and is incorporated herein by reference.

  17. Export Regulation; US Government Rights

    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 LOU Software to, or make LOU 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 LOU Software 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 and/or re-export of any of LOU Software, with or without permission.  

    LOU 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 LOU 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.

  18. Entire Agreement

    This EULA, together with the Sign-Up Process, 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.