Eula

This End User License Agreement (this “Agreement”) is a legal agreement between you (“Licensee” or “you”) and Evinced, Inc. (“Evinced”) regarding your use of the object code version of the software described in an Order, which may include without limitation locally-installed or cloud-based browser extensions and software development kits and other software-as-a-service offerings (the “Software”). It is important that you carefully read and understand the terms and conditions of this Agreement. By clicking the “I Accept” button, or any similar mechanism, or by downloading, installing, accessing or using the Software, you agree to be bound by and comply with the terms of this Agreement. If entering this Agreement or using the Software on behalf of an entity, you represent that you have the authority to bind, and are hereby binding, such entity to this Agreement. This Agreement will be effective as of the earlier of the date that you click the “I Accept” button, or any similar mechanism, or the date that you first download, install, access or use the Software (the “Effective Date”).
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND SUCH ENTITY, CLICK THE “DECLINE” BUTTON, OR OTHER SIMILAR MECHANISM, AND DO NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE.

I. DEFINITIONS

In addition to any other terms defined herein, the following terms shall have the respective meanings ascribed to them below:

“Documentation:” means all manuals, instructions, and other documents and materials that Evinced provides or makes available to Licensee in any form or medium which describe any functionality, component, feature, or requirement of the Software or Services, including without limitation any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

“Licensed Materials:” means the Documentation and the Software.

“Order:” means any purchase order, statement of work, quote, invoice, shopping cart webpage, or similar document issued by or registration made with Evinced (whether manually, online or otherwise) in connection with this Agreement and that may set forth a description of the Software and associated fees, user and other use limitations, license duration, fees, support terms, and other commercial terms not set forth herein.

“Services:” means Remote Access and Support (each as defined below) provided by Evinced hereunder.

II. GRANT OF LICENSES

2.1 Software Licenses.

(a) Subject to Licensee’s compliance with the terms and conditions of this Agreement (including without limitation the timely payment of all fees and other amounts payable to Evinced under each Order), Evinced grants to Licensee a non-exclusive, non-sublicensable, non-transferable license to use the Licensed Materials solely (i) except as set forth in Section 2.2(a)(ii) below, for the internal business operations of Licensee, (ii) unless otherwise set forth in Section 2.2 below, during the period of time set forth in each applicable Order, and (iii) subject to all use limitations and restrictions set forth in each Order and this Agreement. The provisions of Article IX will apply to Licensee access to the Software through Evinced’s hosted environment (“Remote Access”).

(b) Except as set forth in Section 2.2(a)(ii) below, Licensee’s contractors may use the Licensed Materials provided that (i) such use is solely in direct support of Licensee’s internal business purposes and is solely for an engagement expressly authorized by Licensee, (ii) such use is in accordance with all applicable limitations and restrictions set forth in this Agreement (including without limitation in any Order), (iii) any such contractor may not be a competitor of Evinced without Evinced’s prior written consent, and (iv) Licensee ensures that, upon termination, expiration or conclusion of the engagement of any such contractor, all Licensed Materials are promptly returned to Licensee or destroyed, and Licensee shall, upon the request of Evinced, require that such contractor certify in writing to Evinced, and shall itself certify in writing to Evinced, that any Licensed Materials not returned to Licensee have been destroyed. Acts and omissions of any such contractor shall be deemed acts and omissions of Licensee for purposes of this Agreement.

2.2 Additional Product-Specific Terms.

Any Evinced product(s) may, at Evinced's sole discretion, be provided at no charge on a temporary trial basis. Thereafter, to continue use of the product(s), the Licensee must purchase a fee-based commercial license, pursuant to the terms herein, including that Licensee shall not use the Software to support any business operations of any third party.

2.3 Restrictions on Use.

Except as expressly set forth herein, Licensee shall not (and shall not attempt to): (a) copy any of the Licensed Materials, distribute, lease, rent, loan, license, or sublicense any of the Licensed Materials to third parties, provide service bureau, time sharing, outsourcing, data processing, or other services to third parties, or otherwise permit the use of or access to any of the Licensed Materials by or for the benefit of any third party; (b) assign, sell, pledge, charge, encumber, transfer, or otherwise dispose of any of the Licensed Materials to any third party, whether voluntarily, by operation of law, or otherwise; (c) remove or destroy, or permit others to remove or destroy, any proprietary markings of Evinced or any third party that may appear on any components of any of the Licensed Materials; (d) use any of the Licensed Materials for any unlawful purpose or in a manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party; (e) reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to or actually derive, gain access to, view or use in any manner the source code of the Software, in whole or in part; (f) use the Software for purposes of (i) benchmarking, comparative or competitive analysis of the Software, (ii) developing, using, or providing a competing software product or service, or (iii) any other purpose that is to Evinced’s detriment or commercial disadvantage; (g) without limiting Section 2.2(f)(i) above, release the results of any benchmark, comparative, or competitive analysis of the Software; (h) use any of the Licensed Materials for any purpose or in any manner not expressly permitted by this Agreement; or (i) modify, translate, or otherwise create derivative works to or improvements of any of the Licensed Materials.

2.4 Privacy.

Evinced collects and processes personal information related to you pursuant to the Evinced privacy policy, available here. Please take the time to review the privacy policy carefully, as it forms as an integral part of this Agreement.

2.5 Export Restrictions.

Licensee acknowledges that the Software may be subject to the United States export control laws. Accordingly, Licensee shall not, directly or indirectly, export or permit the use of the Software outside the United States without obtaining any required government authorization.

2.6 Ownership; Retained Rights.

Licensee acknowledges and agrees that the Licensed Materials are licensed, not sold, and Licensee does not have any ownership interest in any of the Licensed Materials or in any related intellectual property rights. All Licensed Materials and results of the Services shall remain the exclusive property of Evinced and, except for the rights expressly granted to Licensee hereunder, Evinced retains all right, title and interest in, to, and under the Licensed Materials and such results.

2.7 Third-Party Materials.

Licensee’s use or receipt of the Licensed Materials or Services may require or be aided by Licensee’s use or acquisition of software, hardware, information, and/or other materials that are not proprietary to or developed or manufactured by Evinced (collectively, “Third-Party Materials”). Licensee acknowledges and agrees that references to “Software,” “Documentation,” “Remote Access,” “Support,” “Services” or “Licensed Materials” in this Agreement do not include Third-Party Materials, and the license to use Licensed Materials granted in Section 2.1(a) does not include a license to use any Third-Party Materials. Third-Party Materials may be subject to additional terms and conditions from their respective licensors or providers, and Licensee (and not Evinced) will be solely responsible for obtaining any and all rights and licenses required to use any and all Third-Party Materials.

2.8 Feedback; Updates.

Licensee hereby agrees that any and all feedback, suggestions, improvements, comments and ideas it provides to Evinced regarding any of the Licensed Materials (collectively, the “Feedback”) is exclusively owned by Evinced. Licensee hereby irrevocably assigns to Evinced all right, title and interest in and to the Feedback. Evinced reserves the right to (but has no obligation to), from time to time, modify, update and/or upgrade any of the Licensed Materials (collectively, “Updates”). Licensee shall accept each Update at Evinced’s request and, upon provision thereof to Licensee, each Update shall be deemed “Software” or “Documentation” (as applicable) for purposes of this Agreement.

III. FEES

3.1 Fees.

Fees. In consideration of the license granted in Section 2.1(a) and all Services provided by Evinced, Licensee shall pay Evinced the fees set forth on each Order or, if not otherwise set forth in an Order, Evinced’s then-current fees.

3.2 Payment.

Licensee shall pay all fees in United States dollars within 30 days after the date of the invoice therefor. All amounts payable hereunder by Licensee shall be paid in full without set-off, deduction, or other withholding of any amount.

3.3 Late Payment.

Without prejudice to any other remedy available to Evinced hereunder, including without limitation termination under Section 4.2(a), any amount not paid on or before the due date shall bear interest at a rate of one and one-half percent (1.5%) per month or the maximum allowed by law, whichever is less, calculated from the date payment is due until the date payment is made. In addition, Evinced may, at its discretion, suspend its performance of Services and the license granted under this Agreement until Evinced receives all amounts due. Licensee also agrees to pay Evinced all reasonable costs and expenses of collection, including attorneys’ fees.

3.4 Taxes.

All fees, costs, and expenses required to be paid by Licensee hereunder do not include federal, state or local sales, use, property, excise or other taxes, duties or other levies now or hereafter imposed or payable, whether now or in the future, in connection with any of the Licensed Materials or Services or this Agreement, all of which shall be borne by Licensee, except for taxes based solely on the net income of Evinced.

IV. TERM AND TERMINATION

4.1 Term.

The term of this Agreement commences as of the Effective Date and continues in effect until expiration or termination of all Orders.

4.2 Termination.

(a) Either party may terminate any Order or this Agreement by giving written notice to the other party in the event the other party is in material breach of any such Order or this Agreement and shall have failed to cure such breach within 30 days of receipt of written notice thereof from the non-breaching party. Notwithstanding the foregoing, Evinced may immediately terminate any Order or this Agreement in the event Licensee has failed to pay any fees, costs, or expenses payable hereunder when due hereunder and such non-payment has not been cured within 7 days after written notice thereof.

(b) Evinced may immediately terminate any Order or this Agreement (i) as required by any law enforcement or other government or regulatory organization or authority or by the courts or if Evinced’s performance is made illegal as a result of any act of the foregoing; or (ii) in the event that Licensee fails or is unable or acknowledges its inability to pay its debts as they fall due, makes any arrangement or compromise with or for the benefit of its creditors, or institutes or has instituted against it any bankruptcy or insolvency proceedings or has a receiver, trustee or equivalent appointed over its assets.

4.3 Effect of Termination.

Upon termination or expiration of any Order or this Agreement: (a) Licensee shall, and shall ensure that all of its authorized users, immediately cease using the Licensed Materials, and the license granted hereunder shall automatically terminate; and (b) Licensee must promptly uninstall and destroy all copies of the Licensed Materials and certify to Evinced in writing that such destruction has occurred. Termination of any Order or this Agreement shall not entitle Licensee to any refund of fees or other amounts paid hereunder by Licensee. The making of all payments required under this Agreement and each Order and the terms and conditions of Articles I, V, VI and VIII and Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 4.3, and 9.4 of this Agreement, and the last sentence of Section 2.1(b) of this Agreement shall survive termination of each Order and this Agreement. Termination of any Order by either party pursuant to Section 4.2 shall be in addition to any other right or remedy which such party may have at law, in equity, or under this Agreement.

V. LIABILITY

5.1 Indemnity.

Licensee shall indemnify Evinced, its affiliates, and the respective officers, directors, employees, agents and representatives of the foregoing (collectively, the “Evinced Parties”) from and against any and all liabilities, damages, judgments, awards, settlements, costs, expenses, and other charges, including, without limitation, reasonable attorneys’ fees, arising out of Licensee’s use of the Licensed Materials or Licensee’s breach of this Agreement.

###5.2 Disclaimers.

LICENSEE ACKNOWLEDGES AND AGREES THAT THE LICENSED MATERIALS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL EXISTING KNOWN OR UNKNOWN FAULTS. TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, EVINCED HEREBY DISCLAIMS AND LICENSEE WAIVES ALL REPRESENTATIONS, CONDITIONS, DUTIES, AND WARRANTIES (WHETHER EXPRESS, IMPLIED, OR STATUTORY), INCLUDING WITHOUT LIMITATION ANY REPRESENTATION, WARRANTY, DUTY, OR CONDITION (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, SATISFACTORY QUALITY, OR QUIET ENJOYMENT, (B) WITH RESPECT TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY OF THE LICENSED MATERIALS, (C) AS TO THE RESULTS OBTAINED FROM USE OF ANY OF THE LICENSED MATERIALS OR ANY SERVICE, OR (D) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE DISCLAIMED, SUCH WARRANTY IS LIMITED IN DURATION TO THE MINIMUM PERIOD ALLOWED BY APPLICABLE LAW OR, IF NO SUCH PERIOD IS ESTABLISHED, 30 DAYS. EVINCED DISCLAIMS ANY WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE, THAT THE OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED, OR THAT ANY ERRORS IN THE SOFTWARE CAN OR WILL BE CORRECTED. EVINCED DOES NOT MAKE ANY WARRANTY THAT THE SOFTWARE WILL BE FREE FROM ANY VIRUS, HARMFUL CODE, OR UNAUTHORIZED ACCESS, AND EVINCED WILL NOT HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION WITH ANY VIRUS, HARMFUL CODE, OR UNAUTHORIZED ACCESS. EVINCED SHALL HAVE NO LIABILITY IN CONNECTION WITH ANY THIRD-PARTY MATERIALS.

5.3 Limitations and Exclusions of Liability.

TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EVINCED, ITS AFFILIATES, OR THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND REPRESENTATIVES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF EVINCED, ANY OF ITS AFFILIATES, OR ANY OF THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES OF ANY OF THE FOREGOING HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL EVINCED’S MAXIMUM LIABILITY TO LICENSEE OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO EVINCED IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE LIABILITY. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS ARTICLE V SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

5.4 Time Limitation on Claims.

Licensee agrees that any claim Licensee may have arising out of or related to its relationship with Evinced or this Agreement must be filed within 1 year after such claim arose; otherwise, your claim is permanently barred.

VI. CONFIDENTIALITY

Licensee shall hold the Licensed Materials in the strictest confidence and shall not disclose or otherwise make any part of the Licensed Materials available to any other person other than Licensee’s authorized users without the prior written consent of Evinced. Any disclosure of any of the Licensed Materials shall be permitted only to authorized users who are contractually bound to an obligation of confidence no less protective of the Licensed Materials than this Agreement. Licensee shall exercise, and shall obligate its authorized users to exercise, the same degree of care to safeguard the confidentiality of the Licensed Materials as Licensee exercises to safeguard the confidentiality of its own confidential and proprietary information, but in no event less than a reasonable standard of care.

VII. SUPPORT

Evinced shall provide Licensee with Evinced’s Software support and maintenance services described in each Order (“Support”).

VIII. GENERAL

8.1 Jurisdiction and Venue.

This Agreement will be governed by the laws of the State of California without giving effect to the principles of conflicts of law. Each party agrees that any judicial proceeding brought to enforce any provision of this Agreement or to recover damages for its breach shall be brought exclusively in the state and federal courts located in San Francisco, California, and the parties waive any objections to jurisdiction or venue of any such court.

8.2 No Assignment.

Licensee may not assign its benefits or delegate its duties under this Agreement without the prior written consent of Evinced. Any attempted assignment or delegation by Licensee without such prior written consent will be void. Without limiting any of the foregoing, this Agreement will be binding upon and inure to the benefit of each party and its permitted successors and assigns.

8.3 Force Majeure.

Evinced shall not be liable for delay or failure in performance resulting from acts beyond the its control, including without limitation (and whether similar or dissimilar) acts of God, acts of war, terrorism, riot, fire, flood, or other disaster, acts of government, strike, lockout, or power failure.

8.4 Notices.

Any notice required under this Agreement must be in writing and will be deemed received when actually received and delivered by (a) United States mail, certified or registered, return receipt requested, or (b) confirmed private commercial overnight courier service; provided that, in each case, such notice is properly addressed or transmitted to the address of the party set forth in each Order, Attn: Legal Department, or to such other address as a party may provide to the other party in accordance with this Section 8.4.

8.5 Severability.

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will not invalidate the remaining provisions of this Agreement or affect the validity or enforceability of such provision in any other jurisdiction. In addition, any such prohibited or unenforceable provision will be given effect to the extent possible in the jurisdiction where such provision is prohibited or unenforceable.

8.6 Entire Agreement.

This Agreement, together with all Orders, constitutes the entire agreement and understanding between the parties and supersedes all prior agreements and understandings, both written and oral, with respect to the subject matter of this Agreement (including without limitation any and all confidentiality or non-disclosure agreements between the parties). In the event of any conflict between this Agreement and any Order, this Agreement shall govern except to the extent an Order expressly states the intent to supersede the conflicting provision by reference thereto.

8.7 Amendments and Waivers.

The terms and conditions of this Agreement may be modified or waived only by a written document executed by the parties. The waiver by either party of any right provided under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.

8.8 Equitable Remedies.

Licensee acknowledges and agrees that any threatened or actual breach of Section 2.3 or 9.3 or Article 6 shall constitute immediate, irreparable harm to Evinced that cannot be compensated by money and as to which equitable remedies shall be awarded by a court of competent jurisdiction. Licensee hereby expressly waives the requirement of posting bond and the right to a hearing prior to the issuance of any order by a court of competent jurisdiction granting possession of the Licensed Materials to Evinced.

8.9 Publicity.

Evinced shall have the right to use the name and logos of Licensee to identify Licensee as an Evinced customer in general marketing materials, in press releases, on its website, and otherwise.

IX. REMOTE ACCESS

9.1 Licensee’s Remote Access.

Licensee shall not, and shall not permit any other party to, access the Hosted Environment except as expressly permitted by this Agreement. Without limiting any of the foregoing, Licensee shall not:

(a) bypass or breach any security device or protection used within the Hosted Environment or access the Hosted Environment other than by an authorized user through the use of his or her own then-valid access credentials;

(b) input, upload, transmit, or otherwise provide to or through the Hosted Environment any information or materials that are unlawful, fraudulent, offensive, infringing or injurious or that contain, transmit, or activate any virus, worm, malware, or malicious or otherwise harmful code;

(c) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Hosted Environment or Evinced’s provision of software or services to any third party;

(d) access the Hosted Environment to violate the security or integrity of any network, computer or communications system, software application, or network or computing device; or

(e) communicate with or make any connection to any third party user, host, or network, including without limitation using the Hosted Environment to monitor or crawl any third party system or to publish, distribute, or facilitate the sending of any unsolicited advertising or messaging. Evinced may, but is not obligated to, investigate any violation of this Agreement or misuse of the Hosted Environment and may report any activity Evinced suspects violates any law or regulation to any third party.

9.2 Licensee Systems.

Licensee shall be solely responsible for (a) the acquisition of all technology infrastructure, including without limitation Internet access, computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Licensee or through the use of any third party service (“Licensee Systems”), necessary to access the Hosted Environment, and (b) the installation, maintenance, and operation of all Licensee Systems.

9.3 Unauthorized Use.

Evinced may, directly or indirectly, suspend, terminate, or otherwise deny Licensee’s access to or use of all or any part of the Licensed Materials through the Hosted Environment, without incurring any obligation or liability, if: (a) Evinced receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Evinced to do so, or (b) Evinced believes that: (i) Licensee has failed to comply with this Agreement, (ii) Licensee has accessed or used any of the Licensed Materials or Hosted Environment beyond the scope of rights granted or for a purpose not authorized under this Agreement, (iii) Licensee has been or is likely to be involved in any fraudulent, misleading, or unlawful activities, or (iv) this Agreement or Licensee’s right to receive any Remote Access expires or is terminated. This Section 9.3 does not limit any of Evinced’s other rights or remedies, whether at law, in equity, or under this Agreement.

9.4 Security.

(a) Licensee has and will retain sole responsibility for (i) Licensee Systems, (ii) the security and use of its access credentials, and (iii) all access to and use of the Licensed Materials directly or indirectly by or through the Hosted Environment or Licensee’s access credentials, with or without Licensee’s knowledge or consent.

(b) Licensee shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Licensed Materials.

(c) LICENSEE ACKNOWLEDGES AND AGREES THAT THE HOSTED ENVIRONMENT IS PROVIDED ON AN “AS IS” AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, “AS AVAILABLE” BASIS WITH ALL ITS EXISTING KNOWN OR UNKNOWN FAULTS. EVINCED HEREBY DISCLAIMS AND LICENSEE WAIVES ALL REPRESENTATIONS, CONDITIONS, DUTIES, AND WARRANTIES (WHETHER EXPRESS, IMPLIED, OR STATUTORY) (I) WITH RESPECT TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF THE HOSTED ENVIRONMENT OR REMOTE ACCESS, OR (II) AS TO THE RESULTS OBTAINED FROM USE OF THE HOSTED ENVIRONMENT OR REMOTE ACCESS. EVINCED MAKES NO WARRANTY OR REPRESENTATION THAT THE HOSTED ENVIRONMENT OR REMOTE ACCESS WILL BE ERROR-FREE, SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE OR THAT THE HOSTED ENVIRONMENT OR REMOTE ACCESS WILL OPERATE OR BE AVAILABLE WITHOUT INTERRUPTION. EVINCED DOES NOT WARRANT THAT THE HOSTED ENVIRONMENT OR REMOTE ACCESS WILL BE COMPATIBLE WITH LICENSEE’S TELECOMMUNICATIONS NETWORK OR ANY OTHER HARDWARE, SOFTWARE, OR SERVICES OR THAT THE HOSTED ENVIRONMENT OR REMOTE ACCESS WILL MEET THE REQUIREMENTS OF LICENSEE. INFORMATION TRANSMITTED OVER THE INTERNET IS INHERENTLY INSECURE, AND EVINCED DOES NOT MAKE ANY WARRANTY WITH RESPECT TO THE SECURITY OF THE HOSTED ENVIRONMENT, THE REMOTE ACCESS, OR ANY INFORMATION TRANSMITTED TO OR FROM THE HOSTED ENVIRONMENT OR VIA THE REMOTE ACCESS.