THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH (“EVOLPHIN”), GRANTS TO YOU (“YOU” OR “CUSTOMER”) THE RIGHT TO USE THE EVOLPHIN SERVICE AND ACCOMPANYING DOCUMENTATION ORDERED AND PAID FOR BY YOU (COLLECTIVELY “EVOLPHIN SOFTWARE AS A SERVICE”).
1. Grant of Subscription Unless otherwise specified in a Statement of Work, and subject to payment of the Subscription Fee, in accordance with the terms of this Agreement, Evolphin will provide to Customer a subscription during the applicable Term to: (i) access and use the Services according to the number of Users specified in the Commercial Terms; (ii) access and use the Services exclusively for Customer’s internal business purposes; and (iii) use the User Instructions in relation to each Service subscribed to solely for the purpose of supporting use of the Service.
These Standard Terms of Service apply to all offers and contracts pursuant to which Evolphin provides to Customer the Services and/or Professional Services.
2. Scope of Authorized Use. You may use the Licensed Services only as expressly permitted under this ESAAS and in accordance with the user guides and other documentation shipped with the Licensed Services (collectively, “Documentation”). EVOLPHIN expressly reserves any rights not expressly granted in this ESAAS. Your right to use the Licensed Services 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 Services updates, upgrades, or new releases (collectively, “Updates”) are provided to You on a license exchange basis and subject to this ESAAS. By using an Update You voluntarily terminate Your right to use any previous version of the Licensed Services; provided, however, that You may continue to use previous versions of the Service for a pre determined time 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 Services 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.
- Proprietary Rights. This is a license only and no title passes to You. With the exception of the license granted under this ESAAS, EVOLPHIN and any Third Party Licensor retain all right title and interest to the Licensed Services 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 Services.
- Territory Restrictions. The server(s) on which the Services and any related database(s) are stored will be located and remain in the specific geographic region where You have ordered the Licensed Services. The relevant geographic regions are: (1) the European Union, (2) North America, (3) South America, (4) Australia and New Zealand.
- Derivative Works, Reverse Engineering. You may not create any derivative works to the Licensed Services except to facilitate Your authorized use of the Licensed Services, provided that Your use of such limited derivative works is subject to this ESAAS. You may not modify, decompile, translate, disassemble or reverse engineer the Licensed Services 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.
- Commercial Exploitation. You may not distribute, rent, lease or transfer the Licensed Services or any portion thereof. You may not use the Licensed Services, or any portion thereof, in a commercial hosting, application service provider or service bureau environment.
- Customer Content. Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Content as provided to Evolphin. To enable Evolphin to provide the Cloud Services, Customer grants Evolphin the right to use, process and transmit Customer Content, solely in accordance with and for the Term of this Agreement for the purpose of providing the Services. Evolphin does not and will not monitor Customer Content.
Third Party Services.
To the extent the Licensed Services incorporates Services owned by third parties (collectively “Third Party Licensors”), Evolphin has no liability whatsoever with respect to Third Party Products or Services that Customer uses in conjunction with the ESaaS.
Where integration is required between the Service and Third Party Products, Evolphin will alter only the Service component(s) that is/ are the subject of this Agreement and will not under any circumstances alter Third Party Products. Where such integration with Third Party Products is not possible, Evolphin will notify Customer as soon as practicable.
Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and will be pursuant to policies and terms separate from this Agreement. Evolphin shall not be responsible for any disclosure, modification, or deletion of Customer Data resulting from any use of or access by Third Party Products or third party providers.
A. Term. This Agreement shall take effect on the Effective Date and will continue for a period of twelve months (Initial Term). The Agreement shall renew for twelve (12) month periods (“Subsequent Terms”) at the expiration of the Initial Term and any Subsequent Term, unless Customer provides written notice to Evolphin of its intention not to renew more than ninety (90) days prior to the expiration of the Agreement.
1. 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 of this Agreement.
2. If this Agreement is terminated by Evolphin due to Customer’s Material Breach of this agreement Customer will not receive any refund of sums paid under this Agreement and Evolphin shall be entitled to all of the Subscription Fees due under this Agreement for the entire Term.
3. 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 as of the date of termination.
Effect of Termination.
Upon termination of this Agreement, all Services and rights granted hereunder shall terminate, Customer will cease all use of the Services, and Customer shall immediately return to EVOLPHIN, any Confidential Information, together with any and all documents, notes and other materials relating to the Services, 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 duplicates, related documentation or any copies, portions or derivatives of any of the foregoing.
All Services and rights granted under this ESaaS by EVOLPHIN are subject to timely receipt by EVOLPHIN of payment. All payments for Service 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. The Subscription Fee will be adjusted yearly at the rate of inflation as reflected by the Consumer Price Index.
EVOLPHIN warrants that the Licensed Services will perform substantially in accordance with its Documentation for a period of thirty (30) days following delivery of the Licensed Services. This limited warranty is void if failure of the Licensed Services results from accident, abuse, modification, or misuse. EVOLPHIN does not warrant that the Licensed Services will meet Your requirements, that the operation of the Licensed Services will be uninterrupted or error free, or that all defects will be corrected. The warranty and remedy set forth in this ESAAS 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 SERVICES, ITS QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
If You believe the Licensed Services 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 Services or a refund of the amount paid to EVOLPHIN for the Licensed Services (provided in that case that You also cease to use the Licensed Services).
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 Services as used subject to the terms and conditions of this ESaaS 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’s 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 Services 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 Services 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 Services 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 Services, or (b) replace or modify the Licensed Services so that it becomes non-infringing 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 ESAAS and return the prorated service fees as of the date of termination. THIS SECTION SETS FORTH YOUR EXCLUSIVE REMEDY AND EVOLPHIN’S SOLE LIABILITY WITH RESPECT TO INFRINGEMENT CLAIMS.
8. Liability Limits.
THE LICENSED SERVICES ARE 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 SERVICES COULD CAUSE SUBSTANTIAL PROPERTY DAMAGE, PERSONAL INJURY OR DEATH. EVOLPHIN DISCLAIMS ANY LIABILITY FOR USE OF THE LICENSED SERVICES 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’S AND ITS THIRD PARTY LICENSORS’ ENTIRE LIABILITY UNDER THIS ESAAS WILL BE LIMITED TO THE AMOUNT PAID BY YOU TO EVOLPHIN FOR THE LICENSED SERVICES. 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 SERVICES, 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 ESAAS 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 Services 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 Services, (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, (4) may be stored for as long as the ESAAS 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 as defined in section 12 below.
10. United States Government Restricted Rights. THIS SECTION APPLIES ONLY TO LICENSING OR USE BY THE FEDERAL GOVERNMENT OF THE UNITED STATES. The Licensed Services 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 Services 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. Confidentiality and Confidential Information. This agreement is accompanied by a non disclosure agreement which can be found at https://evolphin.com/non-disclosure-agreement/
At any time after signature of this Agreement, Evolphin may publish or use Customer’s name and logo on: (i) Evolphin’s website; (ii) marketing collateral; (iii) online advertisement banners; and (iv) in Evolphin’s sales presentations.
Evolphin will obtain Customer’s permission prior to publication for each of the following: (i) press release; (ii) publication of case study or white paper on website and marketing collateral (and discussion of case study or white paper during sales presentations); and (iii) Customer quote on Evolphin’s website. Customer’s consent will be deemed granted if Customer fails to respond to Evolphin’s request for consent within fifteen (15) days from the date of such request.
If any provision of this ESAAS 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 ESAAS shall remain in full force and effect.
14. Miscellaneous. This ESAAS constitutes the entire agreement between You and EVOLPHIN relating to the license rights for the Licensed Services (and any subsequent orders of additional License Limits or new EVOLPHIN products), and any additions to, or modifications of, this ESAAS will be binding upon the parties only if in writing and duly executed by You and an authorized officer of EVOLPHIN. This Agreement shall be governed by the laws of California. Venue shall be in San Francisco, California.
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 Services or assign this ESAAS 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 Services are acquired through a Reseller, You agree that (i) this ESAAS constitutes the entire agreement between You and EVOLPHIN regarding the Licensed Services (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 ESAAS. 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 ESAAS will not be deemed a waiver of any further or future right under this ESAAS.