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.
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.
Upon termination, customer is responsible for any costs incurred when moving content from the Evolphin cloud into a customer preferred location.
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).
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/
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.
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.
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