TERMS AND CONDITION (TERMS) FOR USE OF PRACTICALMANAGER AND USER AGREEMENT
EVOLI MANAGEMENT D.O.O. AND/OR ITS AFFILIATES (PRACTICAL MANAGER, AND ALSO REFERRED AS »WE«) IS WILLING TO GRANT ACCESS TO THE SAAS PRODUCTS TO YOU, YOU AS THE COMPANY OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SAAS PRODUCTS (REFERENCED BELOW AS “CUSTOMER”) ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THIS AGREEMENT. CUSTOMER AND EVOLI MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SAAS PRODUCTS. THIS SAAS TERMS OF SERVICE (“AGREEMENT”) CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND EVOLI. BY INDICATING CONSENT ELECTRONICALLY, OR ACCESSING OR OTHERWISE USING THE SAAS PRODUCTS, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT INDICATE CONSENT ELECTRONICALLY AND MAKE NO FURTHER USE OF THE SAAS PRODUCTS.
1. ELIGIBILITY AND SCOPE
1.1 General. To use the Service and Websites you must be, and represent and warrant that you are, at least 13 years of age and competent to agree to these Terms. If EVOLI has previously prohibited you from accessing or using the Service and Websites, you are not permitted to access or use the Service and Websites.
2. ACCOUNT REGISTRATION AND USE
2.1 Account Registration and Confidentiality. To access the Service and Websites, you must register for a PracticalManager account by creating a user name and password. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your user name and password. We may assume that any communications we receive under your account have been made by you. If you are a billing owner, an administrator, or if you have confirmed in writing that you have the authority to make decisions on behalf of a Customer (“Account Administrator”), you represent and warrant that you are authorized to make decisions on behalf of the Customer and agree that EVOLI is entitled to rely on your instructions.
2.2 Unauthorized Account Use. You are responsible for notifying us at email@example.com if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. EVOLI will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by EVOLI or a third party due to someone else using your account. In the event that the Account Administrator or Customer loses access to an account or otherwise requests information about an account, EVOLI reserves the right to request from the Account Administrator or Customer any verification it deems necessary before restoring access to or providing information about such account in its sole discretion.
3. OUR PROPRIETARY RIGHTS
The Service and Websites are owned and operated by EVOLI and contain materials (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) which are derived in whole or in part from materials supplied by EVOLI and its partners, as well as other sources, and are protected by EU copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Service and Websites are also protected as a collective work or compilation under EU and global copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Service and Websites. You acknowledge that the Service and Websites have been developed, compiled, prepared, revised, selected, and arranged by EVOLI and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of EVOLI and such others. You agree to notify EVOLI immediately upon becoming aware of any claim that the Service and Websites infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. Any unauthorized use of any material contained on or through the Service and Websites may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
4. USER CONTENT AND FEEDBACK
4.1 User Content and Submissions on the Service. The Service allows you to create tasks and submit associated information, text, files, and other materials (collectively, “User Content”) and to share that User Content with others. User Content submitted or otherwise made available to the Service is subject to the following terms:
4.1.2 Subscriber User Content on the Service. Content submitted to the Service by Subscribers (“Subscriber User Content”) is owned and controlled by the Customer as set forth in the introduction to these Terms and the Customer Agreement. EVOLI maintains a limited, non-exclusive and non-transferrable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display Subscriber User Content for the following limited purposes: (i) to maintain, provide and improve the Service; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Subscriber User Content is in violation of the Customer Agreement or these Terms; (iv) to comply with a valid legal subpoena, request, or other lawful process that meets the requirements of the Customer Agreement; and (v) as otherwise set forth in our Customer Agreement or as expressly permitted in writing by the Customer.
4.2 Feedback on the Websites. The Websites may have certain features that allow you to submit comments, information, and other materials (collectively, “Feedback”) to EVOLI and share such Feedback with other users, or the public. By submitting Feedback through the Websites, you grant EVOLI a license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Feedback for any purpose (including in testimonials or other EVOLI marketing materials and where required to do so by law or in good faith to comply with legal process.). We reserve the right to remove any Feedback posted in public forums for any reason at our sole discretion.
4.3 User Content and Feedback Representations. You acknowledge and agree that you have all required rights to submit User Content and Feedback without violation of any third-party rights. You understand that EVOLI does not control, and is not responsible for, User Content or Feedback, and that by using the Service and/or Websites, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content and Feedback may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless EVOLI for all claims resulting from User Content or Feedback you submit through the Service and/or Websites. We reserve the right, at our own expense, to assume the exclusive defence and control of such disputes, and in any event you will cooperate with us in asserting any available defences.
5.LICENSE AND ACCEPTABLE USE
5.2 Acceptable Use. All Users must comply with the following rules regarding acceptable use of the Service and Websites.
Disruption of the Service. You may not:
- access, tamper with, or use non-public areas of the Service and Websites, EVOLI’s computer systems, or the technical delivery systems of EVOLI’s providers;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
- access or search the Service and Websites by any means other than EVOLI’s publicly supported interfaces (for example, “scraping”);
- attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or
- interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Service and Websites, or by scripting the creation of User Content in such a manner as to interfere with or create an undue burden on the Service and Websites.
Misuse of the Service and Websites. You may not utilize the Service and Websites to carry out, promote or support:
- any unlawful or fraudulent activities;
- the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
- activities that are defamatory, libellous or threatening, constitute hate speech, harassment, or stalking;
- the publishing or posting of other people’s private or personal information without their express authorization and permission;
- the sending of unsolicited communications, promotions advertisements, or spam;
- the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or
- the promotion or advertisement of products or services other than your own without appropriate authorization.
User Content Standards Within the Service and Websites. You may not post any User Content on the Service or Websites that:
- violates any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
- is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement), defamatory, libellous or threatening, constitutes hate speech, harassment, or stalking;
- contains any personal information of minors;
- contains any sensitive personal information, such as financial information, payment card numbers, social security numbers, or health information without EVOLI’s prior written consent granted as part of a Customer Agreement;
- contains viruses, bots, worms, or similar harmful materials; or
- contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.
Violations of this Section 5. In addition to any other remedies that may be available to us, EVOLI reserves the right to take any remedial action it deems necessary, including immediately suspending or terminating your account or your access to the Service or Websites, upon notice and without liability for EVOLI should you fail to abide by the rules in this Section 5 or if, in EVOLI’s sole discretion, such action is necessary to prevent disruption of the Service or Websites for other users. If you are a Subscriber, EVOLI reserves the right to notify the Customer’s Account Administrator(s) or other Customer representative(s) of any violations of these Terms.
7. LIMITATION OF LIABILITY
If we fail to comply with these Terms, we are responsible for loss or damage that you suffer that is a foreseeable result of our breach of these Terms or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of our breach or if it was an order that was accepted. We also only provide the Service and Websites for your internal use. We have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity based on your use of or reliance on the Service and Websites. We do not exclude or limit in any way our liability to you where it would be unlawful for us to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors, for fraud or fraudulent misrepresentation and for breach of your legal rights in relation to the Service and Websites.
The information presented on or through the Service and Websites is made available solely for general information purposes. We do not confirm the accuracy, completeness or usefulness of this information. Any reliance that you place on such information is strictly at your own risk.
You understand that we cannot and do not guarantee that files available for downloading from the Internet or our Service or Websites will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Service and Websites for any reconstruction of any lost data.
9. THIRD-PARTY LINKS AND SERVICE AND WEBSITES
The Service and Websites may provide (1) information and content provided by third parties; (2) links to third-party websites or resources, such as sellers of goods and services; and (3) third-party products and services for sale directly to you. EVOLI is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that EVOLI shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
EVOLI reserves the right at any time to modify or discontinue, temporarily or permanently, the Service and Websites (or any part thereof), with or without notice. You agree that EVOLI shall not be liable to you or any third party for any modification, suspension or discontinuance of the Service and Websites.
11. APPLICABLE LAW
Please note that these Terms, and their subject matter and formation, are governed by the laws of Slovenia. Nothing in these Terms affects your rights as a consumer to rely on any such local law mandatory provisions and legal rights.
You can contact EVOLI at firstname.lastname@example.org if you have any complaints or disputes about the Services. You and EVOLI shall use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating a lawsuit or other form of complaint. If we do not reach an agreed-upon solution within a period of 30 days from the time informal dispute resolution is pursued, to the extent permitted by applicable law, all controversies, disputes, demands, counts, claims or causes of action between you and EVOLI arising out of, under, or related to the Services shall be submitted to the exclusive jurisdiction of the courts of Slovenia.
12. GENERAL TERMS
12.1. No waiver. If we fail to insist that you perform any obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived such rights and will not mean that you do not have to comply with your obligations. If we do waive a failure or breach by you, we will only do so in writing and that will not mean that we automatically waive any future failure of breach by you.
12.2. Severability. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
12.3. Miscellaneous. The section titles in these Terms are for convenience only and have no legal or contractual effect.
12.4 Notices. We may deliver notice to you by e-mail, posting a notice on the Service and Websites or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: (1) Evoli management d.o.o. Smledniška 140, SI-4000 Kranj, Slovenia; or (2) email@example.com.
This User Agreement (the “Agreement”) is entered into by and between Evoli management d.o.o. (“EVOLI”) and the organization agreeing to the terms of this Agreement (“Customer”). This Agreement shall be effective on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement; (b) Customer entering into an Order Form or similar form referencing or otherwise incorporating this Agreement; or (c) Customer’s use of the Service (the “Effective Date”). If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority bind that organization to this Agreement.
1. The Service.
1.1 Provision of the Service. EVOLI shall make the Service purchased under an Order Form available to Customer and its End Users pursuant to this Agreement during the applicable Subscription Term. The Service includes the features and functionality applicable to the version of the Service ordered by Customer. EVOLI may update the content, functionality, and user interface of the Service from time to time in its sole discretion.
1.2 Access Rights. Customer has a non-exclusive, non-sublicenseable, non-transferable (except as specifically permitted in this Agreement) right to access and use the Service pursuant to this Agreement during the applicable Subscription Term, solely for Customer’s internal business purposes subject to the limitations set forth in the Order Form.
1.3 Usage Restrictions. Customer shall not (a) make the Service available to, or use any Service for the benefit of, anyone other than Customer and its Affiliates; (b) rent, sublicense, re-sell, assign, transfer, distribute, time share, or similarly exploit the Service; (c) reverse engineer, copy, modify, adapt, hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) access the Service, the Documentation, or EVOLI’s Confidential Information to build a competitive product or service; (e) alter or remove, or permit any third party to alter or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Service; (f) allow End User Subscriptions to be shared or used by more than one individual End User (except that End User Subscriptions may be reassigned to new End Users replacing individuals who no longer use the Service for any purpose, whether by termination of employment or other change in job status or function); or (g) access or use the Service: (i) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (ii) in violation of applicable laws; (iii) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, or scripts; or (iv) in a manner that interferes with or disrupts the integrity or performance of the Service (or the data contained therein).
1.4 Protection of Customer Data. EVOLI shall implement and maintain administrative, organizational, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data in accordance with EU Regulation 2016/679 (the General Data Protection Regulation or “GDPR”).
1.5 Administration of Customer’s Account. Customer acknowledges that it retains administrative control over to whom it grants access to Customer Data hosted in the Service. Customer may specify an End User to be the billing owner and, depending on the Subscription, one or more End Users to be administrators (each an “Administrator”) to manage its account, and EVOLI is entitled to rely on communications from an Administrator when servicing Customer’s account. Depending on the version purchased by Customer, Customer’s Administrator(s) may have the ability to access, monitor, use, and/or export Customer Data. Customer is responsible for maintaining the security of End User accounts and passwords.
1.6 Compliance. Customer is responsible for use of the Service by its End Users and for their compliance with this Agreement. Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. Customer shall ensure that it is entitled to transfer the relevant Customer Data to EVOLI so that EVOLI and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. Customer shall promptly notify EVOLI if it becomes aware of any unauthorized use of or access to Customer’s account or the Service.
1.7 Suspension. EVOLI may request that Customer suspend the account of any End User who (a) violates this Agreement or EVOLI’s Terms of Service; or (b) is using the Service in a manner that EVOLI reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for EVOLI. If Customer fails to promptly suspend or terminate such End User’s account, EVOLI reserves the right to do so.
1.8 Customer’s Use of Third Party Services. Customer may install or enable third party services for use with the Service, such as online applications, offline software products, or services that utilize the EVOLI’s API in connection with Customer’s use of the Service (“Third Party Services”). Any acquisition and use by Customer or its End Users of such Third Party Services is solely the responsibility of Customer and the applicable third party provider. Customer acknowledges that providers of such Third Party Services may have access to Customer Data in connection with the interoperation and support of such Third Party Services with the Service. To the extent Customer authorizes the access or transmission of Customer Data through a Third Party Service, EVOLI shall not be responsible for any use, disclosure, modification, or deletion of such Customer Data or for any act or omission on the part of the third party provider or its service.
1.9 Trial Subscriptions. Customer may access a version of the Service on a trial basis (a “Trial”) subject to the terms of this Agreement; provided, however, the following additional terms shall apply to its Trial notwithstanding anything to the contrary herein: (a) EVOLI shall have the right to terminate a Trial at any time and for any reason; (b) EVOLI is providing the Service “as is” and makes no warranties (express or implied) of any kind with respect to the Service during the Trial; and (c) EVOLI shall have no obligation to indemnify Customer. CUSTOMER ACKNOWLEDGES THAT ITS TRIAL WILL AUTOMATICALLY CONVERT TO A SUBSCRIPTION AT THE END OF THE TRIAL AND THAT EVOLI MAY CHARGE CUSTOMER FOR THE APPLICABLE SUBSCRIPTION FEES UNLESS CUSTOMER HAS NOTIFIED EVOLI IN WRITING OF ITS DECISION TO OPT OUT DURING THE TRIAL.
2.1 By EVOLI. EVOLI warrants that during the applicable Subscription Term (a) the Service shall perform materially in accordance with the applicable Documentation; and (b) EVOLI shall not materially decrease the functionality of the Service.
2.2 By Customer. Customer warrants that (a) this Agreement is legally binding upon it and enforceable in accordance with its terms; (b) it has obtained all legally required consents and permissions from End Users for the submission and processing of personal data through the Service; and (c) the transfer and processing of Customer Data under the Agreement is lawful.
2.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS SECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROFESSIONAL SERVICES, SERVICE, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND EVOLI AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT EVOLI DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. EVOLI IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING SERVICE PROVIDERS.
3. Fees and Payment.
3.1 Subscription Fees. Customer’s Subscription fees are set forth in the applicable Order Form and are based on the number of End Users and version of the Service purchased. Customer shall pay all fees when due and is responsible for providing complete and accurate billing information to EVOLI. If such fees are being paid via credit card or other electronic means, Customer authorizes EVOLI to charge such fees using Customer’s selected payment method. Payment obligations are non-cancelable and fees paid are non-refundable unless otherwise provided herein. The number of End Users purchased under a Subscription cannot be decreased during the applicable Subscription Term. If Customer requires the use of a purchase order or purchase order number, Customer shall provide the purchase order number at the time of purchase. Where Customer designates use of a third-party payment processor network (such as a payment agent, for example), Customer shall be responsible for payment of all fees and charges associated with use of such network. EVOLI reserves the right to suspend Customer’s account, in addition to all of its other available rights and remedies, in the event that Customer’s account becomes overdue. Suspension shall not relieve Customer’s obligation to pay amounts due.
3.2 Auto-renewal. Customer agrees that its Subscription will automatically renew on an annual or monthly basis depending on Customer’s Subscription (the “Renewal Date”). Customer authorizes EVOLI to automatically charge Customer for the applicable fees on or after the Renewal Date unless the Subscription has been terminated or cancelled in accordance with this Agreement. If Customer wishes to reduce the number of End Users in its Subscription, it must do so prior to the Renewal Date. Customer must cancel its Subscription prior to the Renewal Date in order to avoid billing of the next period’s Subscription fees. Customer can cancel its Subscription anytime online by going into its account settings and following the instructions provided. If Customer chooses to cancel its Subscription during the Subscription Term, Customer may use the Service until the end of Customer’s then-current Subscription Term or renewal period, but will not be issued a refund for the most recently (or any previously) charged fees.
3.3 Calculation. Subscription fees are based on annual or monthly periods (or pro rata portions thereof, calculated on a daily basis) that begin on the Subscription start date and each annual or monthly anniversary thereof. Subscriptions to the Service are sold on a tiered basis based on the number of End Users. Customer shall purchase a Subscription to the Service for each End User, and the initial number of End Users and tier is reflected in the applicable Order Form. Customer may add End Users to its Subscription at any time on written notice to EVOLI (email notice acceptable). EVOLI reserves the right to calculate the total number of End Users periodically and, if the number of End Users exceeds Customer’s current Subscription, then EVOLI reserves the right to invoice Customer for the applicable tier on a pro rata basis for the remaining period in Customer’s Subscription Term, so that all End User Subscription Terms coincide and are co-terminus. EVOLI reserves the right to revise fee rates and/or the billable amount structure for the Service at any time and will provide Customer with notice pursuant to Section 11.4 below) of any such changes at least twenty (20) days prior. EVOLI may charge Customer the then-current pricing for the applicable Subscription if the number of End Users is modified and/or if Customer changes its Subscription plan.
3.4 Taxes. Any fees charged to Customer are exclusive of taxes. Except for those taxes based on EVOLI’s net income, Customer shall be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Service be subject to withholding tax by any government, Customer shall reimburse EVOLI for such withholding tax.
3.5 Future Features and Functionality. Customer agrees that any purchases under this Agreement are not contingent on the delivery of any future feature or functionality or dependent on any oral or written public or private comments made by EVOLI regarding future features or functionality. EVOLI may release Improvements and other features and functionality in its discretion. Some features and functionality may be available only with certain versions of the Service.
4. Term and Termination.
This Agreement commences on the Effective Date and shall remain in effect until all Subscriptions to the Service granted in accordance with this Agreement have expired or been terminated. Either party may terminate this Agreement if the other party: (a) is in material breach of this Agreement and fails to cure such breach within twenty (20) days following receipt of written notice from the non-breaching party, except that termination will take effect on notice in the event of a breach of Section 1.3 (“Usage Restrictions”); or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days. Upon expiration or termination of this Agreement for any reason, all Subscriptions and any other rights granted to Customer under this Agreement shall immediately terminate, and EVOLI may immediately deactivate Customer’s account(s) associated with the Agreement. In no event will any termination relieve Customer of the obligation to pay any fees accrued or payable to EVOLI. The following sections shall survive expiration or termination of this Agreement: Sections 1.3 (“Usage Restrictions”), 2 (“Warranties”), 3.1 (“Subscription Fees”), 3.4 (“Taxes”), 4 (“Term and Termination”), 5 (“Confidentiality”), 6 (“Intellectual Property Rights”), 7 (“Indemnification”), 8 (“Liability”), 9 (“Export Compliance”), 10 (“Use Outside the United States of America”), 11 (“Miscellaneous”), and 12 (“Definitions”).
5.1 Definition of Confidential Information. During the course of performance under this Agreement, each party may make available to the other party information that is not generally known to the public and at the time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, but is not limited to, the Service, any Order Form(s) entered into by the parties, Customer Data, Results, business plans, product plans and roadmaps, strategies, forecasts, projects and analyses, financial information and fee structures, business processes, methods and models, and technical documentation. Confidential Information does not include information that (a) is or becomes publicly available without breach of this Agreement by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.
5.2 Protection of Confidential Information. Except as otherwise expressly permitted under this Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit, or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. The receiving party may disclose the disclosing party’s Confidential Information to its employees, Affiliates, consultants, subcontractors, agents, or advisors (“Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. Either party may disclose the terms of this Agreement to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for purposes of the proposed transaction, provided that any such potential party is subject to written non-disclosure obligations and limitations on use no less protective than those set forth herein.
5.3 Equitable Relief. The receiving party acknowledges that the remedy at law for breach of this Section 5 may be inadequate and that, in addition to any other remedy the disclosing party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this Section 5 by the receiving party or any of its Representatives and to enforce the terms and provisions of this Section 5 in addition to any other remedy to which the disclosing party is entitled at law or in equity.
5.4 Compelled Disclosure. The receiving party may access and disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to such access or disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures. If the receiving party is compelled by law to access or disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, the disclosing party will reimburse the receiving party for the reasonable costs of compiling and providing secure access to such Confidential Information. Receiving party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
5.5 Sensitive/Personal Information. Customer agrees that it shall not use the Service to send or store personal information subject to special regulatory or contractual handling requirements (e.g., Banking and Financial Industry Standards, Payment Card Industry Data Security Standards, the Health Insurance Portability and Accountability Act, and any similar data protection laws) including without limitation: credit card information, credit card numbers and magnetic stripe information, social security numbers, driver’s license numbers, passport numbers, government issued identification numbers, health-related information, biometric data, financial account information, personally identifiable information collected from children under the age of 13 or from online services directed toward children, and real time geo-location data which can identify an individual, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs).
6. Intellectual Property Rights.
6.1 By Customer. Customer owns all right, title, and interest in and to Customer Confidential Information and Customer Data, including all related Intellectual Property Rights. Customer grants EVOLI and its authorized third party service providers a worldwide, non-exclusive license to host, copy, access, process, transmit, and display Customer Data: (a) to maintain, provide, and improve the Service and perform under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) to investigate in good faith an allegation that an End User is in violation of this Agreement or the EVOLI Terms of Service; or (d) at Customer’s direction or request or as permitted in writing by Customer.
6.2 By EVOLI. EVOLI owns and will continue to own all right, title, and interest, including all related Intellectual Property Rights, in and to its Confidential Information, Results, and the Service, including any enhancements, customizations, or modifications thereto. Where Customer purchases Professional Services hereunder, EVOLI grants to Customer a non-sublicensable, non-exclusive license to use any reports and other materials developed by EVOLI as a result of the Professional Services (“Results”) solely in conjunction with Customer’s authorized use of the Service and in accordance with this Agreement.
6.3 Suggestions. EVOLI welcomes feedback from its customers about the Service and Professional Services. If Customer (including any End User) provides EVOLI with any feedback or suggestions regarding the Service or Professional Services (“Feedback”), EVOLI may use, disclose, reproduce, sublicense, or otherwise distribute and exploit the Feedback without restriction or any obligation to Customer or any End User provided that EVOLI shall not identify Customer or any End User as the source of such Feedback.
7.1 By Customer. Customer shall defend EVOLI, its Affiliates, and their employees, officers, and directors (together, the “EVOLI Indemnified Parties”) from and against third party claims, actions, and demands arising from allegations that Customer Data, unauthorized use of the Service by Customer or its End Users, or EVOLI’s processing of data pursuant to Customer’s instructions infringes a third party’s Intellectual Property Right or privacy right (each, a “Claim Against EVOLI”), and Customer shall indemnify and hold the EVOLI Indemnified Parties harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against EVOLI Indemnified Parties as a result of, or for any amounts paid by the EVOLI Indemnified Parties under a Customer-approved settlement of, a Claim Against EVOLI.
7.2 By EVOLI. EVOLI shall defend Customer, its Affiliates, and their employees, officers, and directors (together the “Customer Indemnified Parties”) from and against third party claims, actions, and demands alleging that Customer’s authorized use of the Service infringes or misappropriates any copyright, trade secret, EU patent, or trademark right of that third party (each, a “Claim Against Customer”), and EVOLI shall indemnify and hold the Customer Indemnified Parties harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against Customer Indemnified Parties as a result of, or for any amounts paid by the Customer Indemnified Parties under an EVOLI-approved settlement of, a Claim Against Customer; provided, however, in no event will EVOLI have any obligations or liability under this Section 7.2 to the extent a Claim Against Customer arises from: (a) Customer or any End User’s use of the Service other than as permitted under this Agreement; or (b) use of the Service in a modified form or in combination with products, services, content, or data not furnished to Customer by EVOLI.
7.3 Potential Infringement. If the Service becomes, or in EVOLI’s reasonable judgment is likely to become, the subject of a claim of infringement, then EVOLI may in its sole discretion: (a) obtain the right, at EVOLI’s expense, for Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that it is no longer infringing. If EVOLI, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then EVOLI may suspend or terminate Customer’s use of the Service, in which case EVOLI’s sole liability (in addition to its obligations under Section 7.2) shall be to provide Customer with a prorated refund of any prepaid, unused fees applicable to the remaining portion of the Subscription Term. Sections 7.2 and 7.3 state EVOLI’s sole liability and the Customer Indemnified Parties’ exclusive remedy for infringement claims.
7.4 Indemnification Process. The party seeking indemnification shall provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and shall promptly provide the indemnifying party with all information and assistance reasonably requested and otherwise cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party shall have full control and authority over the defence of any claim; provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld or delayed.
8.1 Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 (“INDEMNIFICATION”), IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR LOSS OF USE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.3 The provisions of this Section 8 allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.
9. Export Compliance.
The Service may be subject to export laws and regulations of Republic of Slovenia (Slovenia) and other jurisdictions. Customer represents that neither it nor any of its End Users are named on any Slovenian government denied-party list. Customer shall not permit any End User to access or use any Service in a Slovenia-embargoed country or region or in violation of any Slovenia export law or regulation. Customer and its End Users shall not use the Service to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside Slovenia in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by Slovenian government and any country or organization of nations within whose jurisdiction Customer operates or does business.
The Service is operated by EVOLI from its offices in the EU. EVOLI makes no representations that the Services are appropriate for use in other jurisdictions. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with local laws. EVOLI may offer services in other jurisdictions that are subject to different terms and conditions. In such instances, the terms and conditions governing those services shall take precedence over any conflicting provisions in this Agreement.
11.1 Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the Republic of Slovenia without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in Kranj, Slovenia.
11.2 Informal Dispute Resolution and Arbitration. The parties agree that most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute directly through consultation with each other before initiating a lawsuit or arbitration. If, after good faith negotiations the parties are unable to resolve the dispute, the parties agree that any and all disputes arising out of or in any way relating to this Agreement, including without limitation its existence, validity or termination, shall be resolved according to Slovenia law and exclusively by binding arbitration before a single arbitrator with the Chamber of Commerce of Slovenia (GZS) and pursuant to the then existing arbitration rules. If the parties cannot agree upon selection of an arbitrator, then GZS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be Ljubljana, Slovenia unless otherwise agreed upon by the parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of Section 11.3 mandating arbitration shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes. Customer may opt out and not be bound by the arbitration and class action waiver provisions by sending written notice to EVOLI. The notice must be sent within thirty (30) days of the Effective Date of this Agreement between Customer and EVOLI. If Customer opts out of arbitration, EVOLI also will not be bound to arbitrate. Notwithstanding the foregoing, either party shall be entitled to seek injunctive relief as set forth in Section 5.3 (“Equitable Relief”) above and to stop unauthorized use of the Service or infringement of Intellectual Property Rights. Disputes, claims, or controversies concerning either party’s Intellectual Property Rights or claims of piracy or unauthorized use of the Service shall not be subject to arbitration. The parties further agree that the prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
11.3 Notice. EVOLI may give general notices related to the Service that are applicable to all customers by email, text, in-app notifications, or by posting them on the website or through the Service and such electronic notices shall be deemed to satisfy any legal requirement that such notices be made in writing. Other notices must be sent by email, first class, or courier to the addresses of the parties provided herein or via an Order Form and are deemed given when received. Notices to EVOLI must be sent to firstname.lastname@example.org with a copy to EVOLI management d.o.o., Smledniška 140, SI-4000 Kranj, Slovenia.
11.4 Publicity. EVOLI may include Customer’s name and logo in EVOLI’s online customer list and in print and electronic marketing materials.
11.5 Beta Access. Customer may be invited to participate in review and testing of pre-release versions of new and beneficial tools and Service enhancements which may be identified to Customer as “alpha,” “beta,” “preview,” “pre-release,” “early access,” or “evaluation” product or services (collectively, the “Beta Tests” and such pre-release functionality, the “Beta Product”). Customer acknowledges and understands that its participation in Beta Tests is not required and is at Customer’s own risk, and that Beta Products are made available on an “as is” basis without warranties (express or implied) of any kind, and may be discontinued or modified at any time. Beta Products are for evaluation and testing purposes, not for production use, not supported, not subject to availability or security obligations, and may be subject to additional terms. EVOLI shall have no liability for any harm or damage arising out of or in connection with Beta Products. The Beta Products, including without limitation Customer’s assessment of any Beta Product, are Confidential Information of EVOLI.
11.6 Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. Without limiting this Section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.
11.7 Force Majeure. EVOLI shall not be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a condition that is beyond EVOLI’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). EVOLI shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). EVOLI shall promptly notify Customer and make reasonable efforts to mitigate the effects of the Force Majeure Event.
11.8 Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
11.9 Assignment. Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by either party without the other party’s express written consent (not to be unreasonably withheld or delayed); provided, however, that either party may assign this Agreement and all Order Forms under this Agreement upon written notice without the other party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning party. Any other attempt to transfer or assign this Agreement will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
11.10 Government Agencies. If Customer is a Government agency utilizing EVOLI’s Service in an official capacity, Customer’s use of the Service shall be subject to this Subscriber Agreement.
11.11 Modifications. EVOLI may revise this Agreement from time to time by posting the modified version on its website. If, in EVOLI’s sole discretion, the modifications proposed are material, EVOLI shall provide Customer with notice in accordance with Section 11.4 at least twenty (20) days prior to the effective date of the modifications being made. By continuing to access or use the Service after the posted effective date of modifications to this Agreement, Customer agrees to be bound by the revised version of the Agreement.
11.12 Entire Agreement. This Agreement, including all attachments, exhibits, addendums, and any Order Form(s) hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement. To the extent of any conflict or inconsistency between the provisions of the Agreement and any Order Form, the Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process, web portal, or any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
11.13 Applicability. This Agreement applies to you if: (a) you are a new Customer or have become a new Customer on or after January 1, 2021; (b) you enter into a Trial of EVOLI that is subject to this Agreement; or (c) you click a button indicating your agreement with the terms of this Agreement or enter into an Order Form or similar form referencing or otherwise incorporating this Agreement.
12.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means either: (a) ownership or control of more than 50% of the voting interests of the subject entity; or (b) the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise.
12.2 “Customer Data” means information submitted by an End User through the Service, including all associated messages, attachments, files, tasks, project names, team names, channels, conversations, and other similar content.
12.3 “Documentation” means EVOLI’s then-current online user guides, as updated from time to time, and made accessible from within the “Help” feature of the Service.
12.4 “End User” means an individual who is authorized by Customer to use the Service under Customer’s account. End Users may include, without limitation, Customer’s or its Affiliates’ employees, consultants, contractors and agents.
12.5 “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
12.6 “Improvements” means new features, functionality, enhancements, upgrades, error corrections and bug fixes to the Service made generally available by EVOLI at no additional charge.
12.7 “Order Form” means an ordering document or an online order set forth in the Service interface entered into between Customer and EVOLI (or Affiliates of either party) specifying the Service or Professional Services (if any) to be provided under this Agreement.
12.8 “Professional Services” means the customer success services provided by EVOLI, as specified in the applicable Order Form.
12.9 “Service” means EVOLI’s collaboration work management software as a service platform, including any Improvements, as described in the applicable Order Form.
12.10 “Subscription” means the access to the Service purchased by Customer on a per End User basis.
12.11 “Subscription Term” means the period identified in the Order Form during which Customer’s End Users are permitted to use or access the Service pursuant to the terms set forth in this Agreement.