End User License Agreement
IMPORTANT: THIS SOFTWARE END-USER LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER INDIVIDUALLY OR COLLECTIVELY ON BEHALF OF YOUR BUSINESS ENTITY) AND EVOLUTIONSCRIPT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. AMONG OTHER PROVISIONS, IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS TERMINATION AND WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU CONFIRM YOUR ACCEPTANCE OF THE SOFTWARE AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR WEBSITE OR PLACE OF PURCHASE FOR A FULL REFUND. CONTINUED USE OF THIS SOFTWARE SIGNIFIES YOUR CONTINUED ACCEPTANCE OF THESE TERMS AND ANY FUTURE CHANGES TO THEM.
The Terms and conditions of our "Software Product" is a legal agreement between the client (an individual or a legal entity) and EvolutionScript Software.
EvolutionScript admit set of scripts, associated media, printed materials and "online" or electronic documentation, such as administration and installation manual.
You agree to be bound by the terms and conditions of EvolutionScript by purchasing, installing, copying, downloading, accessing or otherwise using ANY of the EvolutionScript packages.
EvolutionScript packages are called "Software Product" here. EvolutionScript holds copyright to the "Software Product". The "Software Product" is licensed, not sold.
1.1 License Grant.
During the Term, solely within the Territory and subject to the terms and conditions of this Agreement, EvolutionScript grants You a limited, non-exclusive, license to (a) install and use the Software and (b) make a single back-up copy of the registered Software for archival purposes. The foregoing license is revocable, non-transferable, non-assignable and non-sub-licensable.
1.2 License Transfers
The Software is licensed only to You. You may not rent, lease, sub-license, sell, assign, pledge, transfer or otherwise dispose of the Software, on a temporary or permanent basis, without the prior written consent of EvolutionScript. (For the avoidance of doubt, this license is only granted to one person or company and if more than one person or company wishes to use the Software, each user must purchase a separate license).
1.3 Restrictions of Use
The Software is licensed as a single product and none of the components in the Software may be separated for installation or use.
This Software is licensed to operate on only one domain.
All backup copies must be an exact copy of the original Software. If You make a back-up copy of the Software, such copy must be in machine-readable form and You must reproduce on such copy all Intellectual Property Right notices and any other proprietary legends on the original copy of the Software.
You may not alter, merge, modify, prepare derivative works based upon or adapt the Software in any manner whatsoever. Additionally, You may not decompile, reverse engineer, disassemble, or otherwise reduce the Software to any human-readable form, or use the Software to develop any application having the same primary functions as the Software.
1.4 Monitoring of Software
The Software contains technological measures that, working in conjunction with EvolutionScript computer servers, are designed to prevent unlicensed or illegal use of the Software (collectively, the “Authentication System”). You acknowledge and agree that such Authentication System allows EvolutionScript to (among other things) (a) monitor use of the Software by You; (b) suspend or disable access to the Software in whole or in part in the event of a breach of this Agreement; and (c) terminate use of the Software upon the expiration or termination of this Agreement. You agree not to thwart, interfere with, circumvent or block the operation of any aspect of the Authentication System, including any communications between the Software and EvolutionScript’s computer servers. For the avoidance of doubt, the Software will not operate unless EvolutionScript from time to time verifies the Software using the Authentication System which requires the exchange of information between You and EvolutionScript over the Internet.
1.5 Data Protection
The Software may automatically download and install updates from time to time from EvolutionScript. These updates are designed to improve, enhance and further develop the Software and may take the form of bug fixes, enhanced functions, new software modules, completely new versions and additional products and services offered through or from the Software. You agree to receive such updates (and permit EvolutionScript to deliver these to You) as a condition to Your use of the Software.
1.7 License Exchange
You agree that this Agreement shall supersede any prior End-User License Agreement and between You and EvolutionScript applicable to the Software and that such prior End-User License Agreement is hereby terminated if (a) You previously purchased a license for the Software and are now purchasing a new license for the Software so that You may obtain additional technical support or updates during the Term of this Agreement; or (b) the copy of the Software You licensed with this Agreement is an upgrade to an earlier version of the Software. You may not continue to use the earlier version of the Software or transfer it to another person or entity.
2. Intellectual Property Rights
EvolutionScript owns all right, title and interest, including all Intellectual Property Rights, in and to, (a) the Software; (b) the Trademarks; (c) EvolutionScript Anonymous Usage Data; and (d) any and all Submissions (collectively, “EvolutionScript IP Rights”).
This Agreement does not authorize You to use the Trademarks. If You wish to use the Trademarks, You must obtain a written license to use the Trademarks from EvolutionScript. Additionally, You will not (a) assert any Intellectual Property Right in the Trademarks or in any element, derivation, adaptation, variation or name thereof; (b) contest the validity of any of the Trademarks; (c) contest EvolutionScript’s ownership of any of the Trademarks; or (d) in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name or sub-domain name, any trademarks, or any word, symbol or device, or any combination confusingly similar to, or which incorporates in whole or in part, any of the Trademarks.
2.3 No Implied License or Ownership
Nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant You any right, title or interest, implied or otherwise, in or to the EvolutionScript IP Rights.
2.4 No Contest
You acknowledge and agree that the EvolutionScript IP Rights are and shall remain the sole and exclusive property of EvolutionScript. You agree that You shall never oppose, seek to cancel, or otherwise contest EvolutionScript’s ownership of the EvolutionScript IP Rights or act in any manner that would or might conflict with or compromise EvolutionScript’s ownership of the EvolutionScript IP Rights, or similarly affect the value of the EvolutionScript IP Rights. Whenever requested by EvolutionScript, You shall execute such documents as EvolutionScript may deem necessary or appropriate to confirm, maintain or perfect EvolutionScript’s ownership of the EvolutionScript IP Rights. In the event EvolutionScript is unable, after using its reasonable endeavours (which shall not require EvolutionScript to incur any costs), to secure Your signature on any document or documents needed to apply for or to confirm, maintain or perfect EvolutionScript’s ownership of the EvolutionScript IP Rights for any other reason whatsoever, You hereby irrevocably designate and appoint EvolutionScript as Your duly authorized attorney-in-fact, to act for and on Your behalf and stead to execute and sign any document or documents and to do all other lawfully permitted acts to confirm, maintain or perfect EvolutionScript’s ownership of the EvolutionScript IP Rights with the same legal force and effect as if executed by You. In the event You become aware that any third party is, or may be, infringing the EvolutionScript IP Rights, You agree to notify EvolutionScript of such fact.
2.5 Proprietary Notices
Third party trademarks, trade names, product names and logos included in the Software may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
With respect to any feedback, suggestions or ideas (“Submissions”) that You submit to EvolutionScript concerning the Software, or any of EvolutionScript’s products or services, You agree that: (a) Your Submissions will automatically become the property of EvolutionScript, without any compensation to You; (b) EvolutionScript may use or redistribute the Submissions for any purpose and in any way; (c) EvolutionScript is not obligated to review any Submissions; and (d) EvolutionScript is not obligated to keep any Submissions confidential. In addition, any illegal, lewd, abusive, profane or otherwise disturbing submissions by You shall constitute a material breach of this Agreement giving rise to EvolutionScript’s termination rights in Section 4.2.
3. Payments & Refunds
As a condition of the license granted to You pursuant to this EULA, You shall pay EvolutionScript the amount(s) set forth in Your Pricing and Term Agreement in accordance with the payment terms contained therein.
Refunds are only issued for software failure. Refunds are not issued for server failure/issues, lack of features or if Your hardware does not meet the Software Requirements. Refunds are determined on individual circumstances and only issued once EvolutionScript’s technical staff determines that EvolutionScript has a fault causing it to not run on Your hardware. Installation charges are not refundable under any circumstances. Refunds are not available after license activation. IN CASE YOU CANCEL YOUR ORDER PRIOR TO DELIVERY YOU MAY CLAIM REFUND, HOWEVER PROCESSING FEES MAY APPLY.
4. Term and Termination
This Agreement shall be effective on the Effective Date and shall automatically expire at the end of the Term.
EvolutionScript may terminate this Agreement (a) in the event of Your breach of this Agreement (or a sublicensee’s breach of a provision of a Third Party User’s agreement relating to the Software or EvolutionScript) upon 30 days’ notice to You if such breach remains uncured after the expiration of the 30 day notice period; (b) as set forth in Section 2.2; or (c) immediately without notice in the event of Your (or Your sublicensee’s material breach of this Agreement. You acknowledge and agree that any breach by You (or any Third Party User) of the following provisions of the Agreement or any related provisions of a Third Party User’s agreement relating to EvolutionScript or the Software shall each constitute a material breach: (i) use of the Software in excess of the license grant in Section 1.1 (License Grant); (ii) any purported or attempted assignment, transfer, sale or other disposition or delegation of the Software in violation of Section 1 (License) or Section 8.8 (Assignment); (iii) any violation of Section 1.3 (Restrictions of Use); (iv) any violation of Section 1.4 (Monitoring of Software) including without limitation any attempt, whether successful or not, to thwart, interfere with, circumvent or block the operation of any aspect of EvolutionScript’s monitoring of the Software; (v) any conduct inconsistent with the EvolutionScript IP Rights as set forth in Section 2 (Intellectual Property Rights); (vi) any breach of Section 3 (Payment); and (vii) any breach of Your warranties under Section 5.1 (Mutual Warranties). Additionally, a material breach by You of any agreement or contract between You and EvolutionScript, including without limitation a breach of EvolutionScript’s Trademark Usage Policy, any applicable EULA, or the Technical Support Agreement shall be deemed a material breach of this Agreement and shall give rise to EvolutionScript’s right to terminate as set forth in this Section 4.2. The foregoing list of material breaches is a nonexclusive list.
4.3 Effect of Termination
Upon the expiration or termination of this Agreement for any reason, (a) You must destroy all copies of the Software, including any back-up copy; (b) You must uninstall or delete the Software from the Licensed Server; and (c) EvolutionScript may without notice and in its sole discretion terminate, suspend or disable access to the Software by You or any Third Party User.
5. Warranties; Disclaimer
5.1 Mutual Warranties
Each party hereto warrants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions; and (d) such party will comply with all Applicable Laws related to the use and installation of the Software and the performance of its obligations under this Agreement.
5.2 Limited Warranty
EvolutionScript warrants that, for a period of thirty days from the date of delivery of the Software, when used with a hardware and software configuration recommended by EvolutionScript, the Software will perform in substantial conformance with the documentation supplied with the Software. The limited warranty in this Section 5.2 shall not apply (a) if Your version of the Software is a Beta Version; (b) if the Software has been altered in any way by a party other than EvolutionSCript; (c) the Software’s third party components; or (d) if any failure or error arises out of use of the Software with anything other than a EvolutionScript recommended hardware and software configuration. Any misuse, accident, abuse, modification or misapplication of the Software will void the limited warranty in this Section 5.2.
EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION 5.2, THE SOFTWARE LICENSED HEREUNDER IS PROVIDED "AS IS" AND EVOLUTIONSCRIPT HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EvolutionScript DOES NOT WARRANT THAT THE SOFTWARE OR ITS THIRD PARTY COMPONENTS ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IF THE SOFTWARE, ITS THIRD PARTY COMPONENTS, OR ANY DATA ACCESSED THEREFROM IS DEFECTIVE, YOU ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF EvolutionScript HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DEFECTS OR DAMAGES.
IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY OR THE MINIMUM ALLOWED DURATION UNDER SUCH APPLICABLE LAW.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EVOLUTIONSCRIPT, ITS AFFILIATES, LICENSEES, DEALERS, SUB-LICENSORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED IN SECTION 5.2.
SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
6. Limitation of Liability
6.1 Lost Profits; Consequential Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVOLUTIONSCRIPT WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF EVOLUTIONSCRIPT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 Total Cumulative Liability; Exclusive Remedy
EXCEPT FOR AMOUNTS OWED BY YOU TO EVOLUTIONSCRIPT UNDER SECTION 3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVOLUTIONSCRIPT’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES COLLECTED BY EVOLUTIONSCRIPT UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED WARRANTY OF SECTION 5.2 YOUR SOLE AND EXCLUSIVE REMEDY AND EVOLUTIONSCRIPT’S ENTIRE LIABILITY SHALL BE FOR EVOLUTIONSCRIPT, AT EVOLUTIONSCRIPT’S ELECTION AND WITHIN ITS SOLE DISCRETION, TO USE ITS COMMERCIALLY REASONABLE ENDEAVOURS TO (A) SUPPLY YOU WITH A REPLACEMENT COPY OF THE SOFTWARE THAT SUBSTANTIALLY CONFORMS TO THE DOCUMENTATION INCLUDED WITH THE SOFTWARE; OR (B) REFUND TO YOU YOUR LICENSE FEE FOR THE SOFTWARE; PROVIDED THAT YOU REPORT ANY NON-COMPLIANCE WITH THE LIMITED WARRANTY OF SECTION 5.2 IN WRITING TO EVOLUTIONSCRIPT NO MORE THAN THIRTY (30) DAYS FOLLOWING DELIVERY OF THE SOFTWARE TO YOU.
You shall indemnify, defend and hold harmless EvolutionScript and its directors, officers, staff, employees agents, and affiliates and their respective successors, heirs and assigns and affiliates (and their its directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “EvolutionScript Parties”) from and against any liability, damage, loss or expense (including reasonable lawyers’ fees and expenses of litigation) incurred by or imposed upon the EvolutionScript Parties or any one of them in connection with any claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising out of (a) a breach of Your representations, warranties or obligations under this Agreement; (b) in the event that You sublicense the right to use the Software to any Third Party Users pursuant to Section 1.2 (Sublicensing), (c) a breach of a Third Party User’s representations, warranties or obligations under any provisions in a Third Party User’s agreement relating to EvolutionScript or the Software; and (d) any Claims based upon or arising from any allegation that a Third Party User was harmed due to any termination, suspension or disabling of such user’s access to the Software by EvolutionScript pursuant to the terms and conditions of this Agreement; provided, however, that in any such case EvolutionScript or its affiliates, as applicable, (x) provide You with prompt notice of any such claim; (y) permit You to assume and control the defence of such action upon Your written notice to EvolutionScript of Your intention to indemnify; and (z) upon Your written request, and at no expense to EvolutionScript or its affiliates, provide to You all available information and assistance reasonably necessary for You to defend such claim. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the EvolutionScript Parties, without EvolutionScript’s prior written consent, which will not unreasonably be withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable lawyers’ fees and costs awarded against or otherwise incurred by EvolutionScript or its affiliates in connection with or arising from any such claim.
8.1 Force Majeure
No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.
8.2 Independent Contractors
It is the intention of the parties that EvolutionScript and You are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between EvolutionScript and You.
8.3 Choice of Law; Venue; Jurisdiction
This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes and claims) are governed by and construed in accordance with the laws of Peru. The parties irrevocably agree that the courts of Peru have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes and claims).
8.4 Entire Agreement
This Agreement, together with all Exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will supersede all prior agreements and communications of the parties, oral or written.
8.5 Basis of Bargain
Section 5.2 (Limited Warranty), Section 6 (Limitations on Liability; Exclusive Remedies) and Section 7 (Indemnification) are fundamental elements of the basis of the agreement between EvolutionScript and You and shall inure to the benefit of EvolutionScript. EvolutionScript would not be able to provide the Software on an economic basis without such limitations.
If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
8.7 Amendment or Modification
This Agreement is subject to change without prior notice from EvolutionScript. You shall be deemed to have accepted any changes or modifications by Your continuing use of the Software. Additionally, this Agreement may not be amended, modified, or supplemented by You in any manner, except by an instrument in writing signed and agreed to by EvolutionScript.
This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, other than as expressly set forth in this Section 8.8. This Agreement may be assigned, transferred, delegated, sold or otherwise disposed of in its entirety: (a) by EvolutionScript in its sole discretion; (b) by You with the prior written consent of EvolutionScript; and (c) as set forth in Section 1.2 (License Transfers). In addition, EvolutionScript may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that EvolutionScript will remain liable and responsible for any performance or obligation so delegated. A party’s permitted successors or assignees must agree as a condition precedent to any assignment, transfer or delegation to fully perform all applicable terms and conditions of this Agreement. No party may assign this Agreement to any entity that lacks sufficient assets and resources to continue to perform, to contractually required standards, all assigned obligations for the remainder of the Term. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 8.8, including without limitation by operation of law, is null and void.