Evolphin End-User License Agreement ("EULA")

THIS EULA SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH (“EVOLPHIN”), GRANTS TO YOU (“YOU” OR “CUSTOMER NAME”) THE RIGHT TO USE THE EVOLPHIN SOFTWARE AND ACCOMPANYING DOCUMENTATION ORDERED AND PAID FOR BY YOU (COLLECTIVELY “LICENSED SOFTWARE”). THIS EULA REPLACES AND SUPERCEDES ANY LICENSE AGREEMENT THAT YOU MAY BE PRESENTED WITH WHEN OPENING THE SOFTWARE PACKAGING, COMPLETING THE ACTIVATION PROCESS, DOWNLOADING, INSTALLING, ACCESSING OR UTILIZING THE LICENSED SOFTWARE OR CLICKING THE “I ACCEPT” BUTTON. 

1. License Grant. Subject to the terms and conditions of this EULA, EVOLPHIN hereby grants to Customer, and Customer fully accepts upon delivery, a nonexclusive and non-transferable right to use only the executable version (not source code) of the Licensed Software for Customer’s internal business purposes. 
   
   

2. Scope of Authorized Use. You may use the Licensed Software only as expressly permitted under this EULA and in accordance with the user guides and other documentation shipped with the Licensed Software (collectively, “Documentation”). EVOLPHIN expressly reserves any rights not expressly granted in this EULA. Your right to use the Licensed Software is limited to the number of server(s), user(s), assets, modules, databases etc… (collectively, “License Limits”) that You have ordered and paid for. All Licensed Software updates, upgrades, or new releases (collectively, “Updates”) are provided to You on a license exchange basis and subject to this EULA. By using an Update You voluntarily terminate Your right to use any previous version of the Licensed Software; provided, however, that You may continue to use previous versions solely to assist You in transitioning to the Update and for historical/archiving purposes. Should You exceed any of Your License Limits, You agree to pay the then applicable full list price for the excess usage, as well as the related maintenance and support fees. You agree to allow EVOLPHIN to audit Your use of the Licensed Software to verify Your compliance with Your License Limits. Audit rights shall be subject to Your reasonable securities policies as applied to all of Your vendors, and may only be performed once every twelve (12) months. 
   
   

3. Restrictions.
   
   

1. 1. Proprietary Rights. This is a license only and no title passes to You. With the exception of the license granted under this EULA, EVOLPHIN and any Third Party Licensor retain all right title and interest to the Licensed Software and all related intellectual property and proprietary rights. You will not remove or obscure any copyright notices, logos, or other proprietary rights notices or legends in the Licensed Software. 
   2. Territory Restrictions. The server(s) on which the Licensed Software and any related database(s) are stored must be located and remain in the specific geographic region where You have ordered the Licensed Software. The relevant geographic regions are: (1) the European Union, (2) North America, (3) South America, (4) Australia and New Zealand. 
   3. Derivative Works, Reverse Engineering. You may not create any derivative works to the Licensed Software except to facilitate Your authorized use of the Licensed Software, provided that Your use of such limited derivative works is subject to this EULA. You may not modify, decompile, translate, disassemble or reverse engineer the Licensed Software except if the laws of Your jurisdiction proscribe the enforcement of such prohibitions but then only to the extent actually permitted, and for the limited purposes specifically contemplated, by applicable law. 
   4. Commercial Exploitation. You may not distribute, rent, lease or transfer the Licensed Software or any portion thereof. You may not use the Licensed Software, or any portion thereof, in a commercial hosting, application service provider or service bureau environment. 
   5. Non Production Copies. You may make one copy of the Licensed Software for safekeeping purposes and as permitted in the Documentation. The original copy of the Licensed Software and all copies that You may make may not leave Your control. If the Licensed Software is provided for testing, evaluation or other nonproduction purposes, You may not use it in a production or live environment and Your right to use the Licensed Software is limited in accordance with the terms under which You received it. 
   6. Third Party Software. To the extent the Licensed Software incorporates software owned by third parties (collectively “Third Party Licensors”), You may only use such third party software with the Licensed Software, i.e., You may not extract it from the Licensed Software, and at all times subject to this EULA. Notwithstanding the foregoing, use of certain third party software may be subject to additional terms and conditions as set forth in the Documentation for the Licensed Software. 
      
      

4. Term/Termination. 
   
   

1. 1. Term. The term of the license grant shall mean the Software license period set forth in the applicable Quote unless terminated pursuant to the terms of this Agreement. The term for the initial Maintenance Services shall mean the maintenance services period set forth in the applicable Quote. The term for providing Professional Services is stated on an attached Schedule. 
      
      
   2. Termination. 
      
      

1. 1. 1. Termination for Convenience. Customer may terminate this Agreement at any time upon written notice to EVOLPHIN, provided that such termination will not limit Customer’s payment obligations hereunder. 
      2. Termination for Breach. A party may terminate this Agreement or a particular Statement of Work or Schedule if the party determines that (i) the other party has breached the terms of this Agreement; and (ii) the other party fails to cure that breach within thirty (30) days of the non-breaching party’s notice to breaching party. Notwithstanding the foregoing, EVOLPHIN may immediately terminate this Agreement if it is determined that Customer has failed to materially comply with the terms and conditions Sections 3 or 12 of this Agreement. If Customer terminates for EVOLPHIN’s uncured breach, then Customer shall (i) receive a pro-rated refund of all amounts prepaid for services not yet performed by EVOLPHIN relating to the breach and (ii) pay EVOLPHIN for all amounts due and owing as of the date of termination. 
      3. Effect of Termination. Upon termination of this Agreement, all licenses and rights granted hereunder shall terminate, Customer will cease all use of the Software, and Customer shall immediately return to EVOLPHIN, the Software, all duplicates, and any Confidential Information, together with any and all documents, notes and other materials relating to the Software, including, without limitation, all copies and extracts of the foregoing and all documentation and copies thereof, along with, upon EVOLPHIN’s request, a signed written statement certifying that Customer has returned to EVOLPHIN, and is no longer in possession of, any Software, duplicates, related documentation or any copies, portions or derivatives of any of the foregoing. 
         
         

5. Payments. All licenses and rights granted under this EULA by EVOLPHIN are subject to timely receipt by EVOLPHIN of payment. All payments for fees, taxes and expenses must be made within thirty (30) days of invoice, unless otherwise agreed in writing by an authorized EVOLPHIN officer. You are responsible for any and all federal, state, dominion, provincial or local sales, use, personal property, excise, or other taxes, fees or duties arising from or related to this Agreement (other than taxes based on EVOLPHIN’s net income). 
   
   

6. Warranty. EVOLPHIN warrants that the Licensed Software (other than Temporary Licenses) will perform substantially in accordance with its Documentation for a period of thirty (30) days following delivery of the Licensed Software. This limited warranty is void if failure of the Licensed Software results from accident, abuse, modification, or misuse. EVOLPHIN does not warrant that the Licensed Software will meet Your requirements, that the operation of the Licensed Software will be uninterrupted or error free, or that all defects will be corrected. The warranty and remedy set forth in this EULA are exclusive and in lieu of all other warranties and remedies, oral or written, expressed or implied.
   
   Except as provided above, EVOLPHIN AND ANY THIRD PARTY LICENSOR DISCLAIM ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE LICENSED SOFTWARE, ITS QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

   
   If You believe the Licensed Software does not meet this Limited Warranty, You must notify EVOLPHIN in writing within the warranty period. EVOLPHIN’s entire liability and Your exclusive remedy with regard to the Limited Warranty, will be, at EVOLPHIN’s sole discretion, either repair or replacement of the Licensed Software or a refund of the amount paid to EVOLPHIN for the Licensed Software (provided in that case that You also return the Licensed Software). 

    

7. Indemnification. EVOLPHIN will, at its expense, defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim against You that the Licensed Software as used subject to the terms and conditions of this EULA infringes any copyright, trademark, trade secret or U.S. patent owned or controlled by the third party (“Infringement Claims”). You agree that EVOLPHIN shall be released of the foregoing obligation unless (i) EVOLPHIN is notified promptly in writing by You of any such claim; (ii) EVOLPHIN has sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; and (iii) You will cooperate with EVOLPHIN, at EVOLPHIN’ expense, in a reasonable way to facilitate the settlement or defense of such claim. Notwithstanding the foregoing, EVOLPHIN will have no liability hereunder to the extent the Infringement Claim arises out of (A) Your modifications not authorized by EVOLPHIN, (B) the combination or use of the Licensed Software with products not provided or recommended by EVOLPHIN if the infringement would have been avoided but for such combination or use, (C) use of the Licensed Software after written notice of the claimed infringement has been received by You, or (D) Your failure to use an Update if the infringement would have been avoided by the use of the Update. Should the Licensed Software become, or in EVOLPHIN’s opinion likely to become, subject to an Infringement Claim, then EVOLPHIN will either (a) procure for Customer the right to continue using the Licensed Software, or (b) replace or modify the Licensed Software so that it becomes noninfringing and performs in a substantially similar manner to the original product, or (c) upon failure of (a) or (b), despite the reasonable efforts of EVOLPHIN, terminate this EULA and return the license fee You paid for the Licensed Software pro-rated over a four (4) year life span. THIS SECTION SETS FORTH YOUR EXCLUSIVE REMEDY AND EVOLPHIN’S SOLE LIABILITY WITH RESPECT TO INFRINGEMENT CLAIMS. 
   
   

8. Liability Limits. THE LICENSED SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE IN ANY MEDICAL OR NUCLEAR SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE LICENSED SOFTWARE COULD CAUSE SUBSTANTIAL PROPERTY DAMAGE, PERSONAL INJURY OR DEATH. EVOLPHIN DISCLAIMS ANY LIABILITY FOR USE OF THE LICENSED SOFTWARE IN ANY SUCH APPLICATION(S).
   
   TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR LIABILITY ARISING UNDER THE INDEMNIFICATION PROVIDED IN SECTION 7 ABOVE, EVOLPHIN’ AND ITS THIRD PARTY LICENSORS’ ENTIRE LIABILITY UNDER THIS EULA WILL BE LIMITED TO THE AMOUNT PAID BY YOU TO EVOLPHIN FOR THE LICENSED SOFTWARE. IN NO EVENT WILL EVOLPHIN OR ITS THIRD PARTY LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, including without limitations damages for lost profits, loss or corruption of data, costs of procurement of substitute technology or services, even if advised of the possibility of such damages. The parties agree that the limitations and exclusions of liability and disclaimers specified in this EULA will survive and apply even if the limited remedies are found to have failed of their essential purpose. 

    

9. Legal Compliance. You must comply with all applicable laws and regulations in Your use of the Licensed Software including without limitations any United States or foreign Export Control laws or regulations, and all applicable data protection, SPAM, privacy laws and regulations. As part of the registration process You may provide user information. Any personal information collected (1) will be used solely for registration and license limit auditing purposes and to provide You with important information about the Licensed Software, (2) will be stored in computer servers with limited access that are located in controlled facilities, (3) may be stored and processed in the United States or other country and by using the Licensed Software, You consent to any such transfer of information outside of Your country, (4) may be stored for as long as the EULA is in effect, (5) will not be shared with any government agency, private organization, or the public, except that Customer’s corporate name may be used as a reference company in the context of sales presentations and marketing activities. 
   
   

10. United States Government Restricted Rights. THIS SECTION APPLIES ONLY TO LICENSING OR USE BY THE FEDERAL GOVERNMENT OF THE UNITED STATES. The Licensed Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the federal government is subject to restricted rights as set forth in subparagraph (c) of The Rights in Technical Data and Computer Software clause at 252.227-7014 for DOD contracts and at FAR (48 CFR 52.227-19) for civilian agency contracts or other comparable agency clauses. 
    
    

11. Severability. If any provision of this EULA is unenforceable or invalid, such provision(s) shall be amended to achieve as nearly as possible the same economic effect as the original provision(s) and the remainder of the EULA shall remain in full force and effect. 
    
    

12. Governing Law. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of California, excluding its conflicts of law provisions that would require the application of the laws of another jurisdiction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to this Agreement.
     

13. Miscellaneous. This EULA constitutes the entire agreement between You and EVOLPHIN relating to the license rights for the Licensed Software (and any subsequent orders of additional License Limits or new EVOLPHIN products), and any additions to, or modifications of, this EULA will be binding upon the parties only if in a writing duly executed by You and an authorized officer of EVOLPHIN. THE TERMS AND CONDITIONS OF ANY CUSTOMER PURCHASE ORDER ARE ONLY BINDING ON EVOLPHIN IF THEY ARE AGREED TO IN WRITING BY AN AUTHORIZED EVOLPHIN OFFICER AND IN A DOCUMENT OTHER THAN THE PURCHASE ORDER FORM. You may not transfer the Licensed Software or assign this EULA without EVOLPHIN’ prior written consent and any attempt by You to do so will be void and without effect; except that, You may assign Your rights and obligations hereunder in connection with a merger, acquisition or sale of all or substantially all of Your assets subject to compliance with EVOLPHIN’s administrative requirements for such assignments. If the Licensed Software is acquired through a Reseller, You agree that (i) this EULA constitutes the entire agreement between You and EVOLPHIN regarding the Licensed Software (and the terms and conditions of any purchase order or any other agreement between You and the Reseller are not binding on EVOLPHIN); and (ii) the Reseller is not EVOLPHIN’ agent and is not authorized to alter, amend or modify the terms of this EULA. EVOLPHIN makes no representation or warranty with regard to any services provided by any Reseller. The waiver or failure of either party to exercise in any respect any right provided for in this EULA will not be deemed a waiver of any further or future right under this EULA.