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