Evision E-Commerce License Agreement[1]

LICENSEE’S USE OF THE EVISION E-COMMERCE SOFTWARE IS SUBJECT TO LICENSEE’S FULL ACCEPTANCE OF THE TERMS, CONDITIONS, DISCLAIMERS AND LICENSE RESTRICTIONS SET FORTH IN THIS AGREEMENT.  

  1. License Grant: Upon payment in full of the license fee, Licensor grants Licensee a non-exclusive, perpetual, non-transferable, non-assignable, non-sublicensable license, without time limitations, to use the Evision E-Commerce Software in supported configurations as described in the Documentation, in compliance with all applicable laws, in object code form only, exclusively for the Permitted Usage (as that term is defined in Exhibit A), subject to the terms and conditions set forth in this Agreement and Exhibits A and B hereto, which are incorporated herein and made a part of this Agreement. Except as expressly authorized by this Agreement, “Licensee” as used herein does not include any other entity or person, including any present or future subsidiary or affiliate of Licensee, or any entity or person owning any interest in Licensee at present or in the future. “Evision E-Commerce Software” means the software that is licensed by Licensor in this Agreement, and any future Upgrades and Patches, as those terms are defined in Section 6 of this Agreement, that the Licensee may receive in accordance with the terms of the Agreement. Documentation” means the resources made available in the reference section of the Evision E-Commerce Developer Network setting forth the then-current functional, operational, and performance capabilities of the Evision E-Commerce Software

    1. License Key: Licensee will be provided a License Key that gives Licensee access to the Evision E-Commerce Software. The Evision E-Commerce Software may be used only on the equipment with the features and limitations specified in the License Key. The License Key shall be time-limited until full payment of the license fee has been received by Licensor. The License Key may limit the number of installations of the Evision E-Commerce Software
    2. Intellectual Property Rights: Ownership of the Evision E-Commerce Software, and all worldwide rights, title and interest in and to the Intellectual Property associated with the Evision E-Commerce Software shall remain solely and exclusively with Licensor or with third parties that license modules included with the Evision E-Commerce Software. Licensee shall remain intact all applicable Licensor copyright, patent and/or trademark notices on and in all copies of the Evision E-Commerce Software. All rights, title, and interest in Evision E-Commerce Software not expressly granted to Licensee in this Agreement are reserved by Licensor. “Intellectual Property” as used in this Agreement means any and all patents, copyrights, trademarks, service marks and trade names (registered and unregistered), trade secrets, know-how, inventions, licenses and all other proprietary rights throughout the world related to the authorship, origin, design, utility, process, manufacture, programming, functionality and operation of Evision E-Commerce Software and its Derivative Works. 
    3. Confidential Information:  The term “Confidential Information” shall include any information, whether tangible or intangible, including, but not limited to, techniques, discoveries, inventions, ideas, processes, software (in source or object code form), designs, technology, technical specifications, flow charts, procedures, formulas, concepts, any financial data, and all business and marketing plans and information, in each case which is maintained in confidence by the disclosing party (“Disclosing Party”) and disclosed to the other party (“Recipient”) hereunder. The failure by the Disclosing Party to designate any tangible or intangible information as Confidential Information shall not give Recipient the right to treat such information as free from the restrictions imposed by this Agreement if the circumstances would lead a reasonable person to believe that such information is Confidential Information. Confidential Information does not include information which Recipient documents (a) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public; (b) was rightfully in Recipient’s possession prior to disclosure by the Disclosing Party; (c) becomes rightfully known to Recipient, without restriction, from a source other than the Disclosing Party and without any breach of duty to the Disclosing Party;  (d) is developed independently by Recipient without use of or reference to any of the Confidential Information and without violation of any confidentiality restriction contained herein; or (e) is approved by the Disclosing Party for disclosure without restriction, in a written document executed by a duly authorized officer of the Disclosing Party. Recipient shall hold the Confidential Information received from the Disclosing Party in strict confidence and shall not, directly or indirectly, disclose it, except as expressly permitted herein. Recipient shall promptly notify the Disclosing Party upon learning of any misappropriation or misuse of Confidential Information disclosed hereunder. Notwithstanding the foregoing, Recipient shall be permitted to disclose Confidential Information pursuant to a judicial or governmental order, provided that Recipient provides the Disclosing Party reasonable prior notice, and assistance, to contest such order.
    4. Restrictions on Use: Except as expressly authorized by applicable law or by Licensor in writing, Licensee shall not copy, in whole or in part, the Evision E-Commerce Software or Documentation, or modify, disassemble, decompress, reverse compile, reverse assemble, reverse engineer, or translate any portion of the Evision E-Commerce Software. Licensee shall not rent, lease, lend, distribute, sell, assign, license, or otherwise transfer the Evision E-Commerce Software, or create Derivative Works of the Evision E-Commerce Software. Additionally, Licensee may use embedded third-party components in the Evision E-Commerce Software exclusively
    5. Derivative Works: “Derivative Works” as used herein means any software program (whether in source code or object code), and all copies thereof, developed by or on behalf of Licensee based on or derived from any part of the Evision E-Commerce Software, including without limitation any Evision E-Commerce, modification, enhancement, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion, or any other form in which the Evision E-Commerce Software may be recast, transformed or adapted, and that, if prepared without Licensor's authorization, would constitute a patent, copyright or trade secret infringement of the Evision E-Commerce Software, or would otherwise constitute an unauthorized use of Licensor’s Confidential Information. In the event any such Derivative Works are created, Licensor shall own all right, title, and interest in and to such Derivative Works. If, under the operation of local law or otherwise, Licensee or such third party comes to have any rights associated with such Derivative Works, Licensee hereby and shall automatically assign all such rights to Licensor for no additional consideration. For avoidance of doubt, Licensor shall claim no intellectual property interest or legal interest of any kind in any code created by Licensee to facilitate its authorized use of the Evision E-Commerce Software so long as the creation of such code does not constitute a Derivative Work or violate any other provision of this Agreement. 
    6. Third Party Use and Rights: Licensee may authorize third parties to assist Licensee in the management, editing, and hosting of web-based content created by use of the Evision E-Commerce Software, provided that: (1) such activities are within the scope of the activities Licensee is itself authorized to perform under this Agreement;License Grant: Upon payment in full of the license fee, Licensor grants Licensee a non-exclusive, perpetual, non-transferable, non-assignable, non-sublicensable license, without time limitations, to use the Evision E-Commerce Software in supported configurations as described in the Documentation, in compliance with all applicable laws, in object code form only, exclusively for the Permitted Usage (as that term is defined in Exhibit A), subject to the terms and conditions set forth in this Agreement and Exhibits A and B hereto, which are incorporated herein and made a part of this Agreement. Except as expressly authorized by this Agreement, “Licensee” as used herein does not include any other entity or person, including any present or future subsidiary or affiliate of Licensee, or any entity or person owning any interest in Licensee at present or in the future. “Evision E-Commerce Software” means the software that is licensed by Licensor in this Agreement, and any future Upgrades and Patches, as those terms are defined in Section 6 of this Agreement, that the Licensee may receive in accordance with the terms of the Agreement. Documentation” means the resources made available in the reference section of the Evision E-Commerce Developer Network setting forth the then-current functional, operational, and performance capabilities of the Evision E-Commerce Software.
      (2) such third party’s acts are primarily for the direct or indirect benefit of Licensee; and (3) such third parties are not charged a fee by Licensee for such activities. Licensee is prohibited from using the Evision E-Commerce Software as an Application Software Provider or in any time-sharing or other commercial arrangement of any kind that makes the Evision E-Commerce Software available to third parties primarily for the third party’s own uses. Except as expressly stated in this Agreement, no third party has any rights under this Agreement. Licensee is fully liable to the extent allowed by law for any unauthorized use of the Evision E-Commerce Software by third parties caused by any acts or omissions of Licensee. 
    7. License Verification: The Evision E-Commerce Software periodically communicates with the Evision License server to check the validity of the used license and transmits the following information to a server maintained by Licensor: License Key ID, licensee name, ordered part-names, eShop Connector Tool Version, ShopConnector Library, Schema Version, ERP System Version, ERP System Productname. This information is used by Licensor to send periodic communications to Licensee relevant to use of the Evision E-Commerce Software, and to verify, at Licensor’s election, that the Evision E-Commerce Software is installed in accordance with the terms of this Agreement.  Identification code

 

  1. Limited Warranties:
    1. Licensor’s Limited Warranty: Licensor expressly warrants that the Evision E-Commerce Software provided to Licensee will work for a period of ninety (90) days following the effective date of this Agreement according to the Documentation. In the event any such Evision E-Commerce Software does not operate according to the Documentation during this Limited Warranty Period, Licensor shall repair or replace the Evision E-Commerce Software and such repair or replacement shall be Licensee’s sole and exclusive remedy.   
    2. Virus/Malicious Code Warranty: Licensor and Licensee warrant that they will use commercially reasonable virus and malicious code detection software programs to test any electronic files, including electronic communications, prior to any delivery or upon receiving such communications and that the parties will continue to take such steps with respect to exchanging electronic files and communications pursuant to this Agreement. In the event either party detects any computer virus or malicious code it shall immediately notify the other party and where possible shall promptly provide revised replacement files in the event any such computer virus or malicious code is detected.
  1. DISCLAIMER OF WARRANTIES: EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2 ABOVE, THE EVISION E-COMMERCE SOFTWARE AND THE DOCUMENTATION ARE SUPPLIED TO LICENSEE "AS IS.” LICENSOR (DEFINED IN THIS SECTION AS LICENSOR’S PARENT, AFFILIATES, SUBSIDIARIES, DISTRIBUTORS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES) MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE EVISION E-COMMERCE SOFTWARE, THE DOCUMENTATION, THE OPERATION OF THE EVISION E-COMMERCE SOFTWARE, OR ANY OTHER GOODS OR SERVICES RENDERED BY LICENSOR TO LICENSEE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, PERFORMANCE, ACCURACY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, EXCEPT TO THE EXTENT ANY WARRANTIES IMPLIED BY LAW CANNOT BE WAIVED. LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES THAT THE EVISION E-COMMERCE SOFTWARE WILL RUN PROPERLY ON ANY HARDWARE, THAT THE EVISION E-COMMERCE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY LICENSEE, OR THAT THE OPERATION OF THE EVISION E-COMMERCE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED. LICENSOR MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND REGARDING ANY SEPARATELY LICENSED SOFTWARE THAT MAY BE USED WITH THE EVISION E-COMMERCE SOFTWARE.

 

  1. LIMITATION OF LIABILITY: LICENSOR (DEFINED IN THIS SECTION AS LICENSOR’S PARENT, AFFILIATES, SUBSIDIARIES, DISTRIBUTORS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES) SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION, THE COST OF RECOVERING ANY DATA, INFRINGEMENT, OR THE COST OF SUBSTITUTE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES (NOT INCLUDING SOFTWARE ASSURANCE PROGRAM CHARGES) PAID BY LICENSEE FOR USE OF THE EVISION E-COMMERCE SOFTWARE UNDER THIS AGREEMENT. LICENSOR WILL NOT BE LIABLE FOR DELAYS OR FAILURES IN PERFORMANCE OF THE SUPPORT OR ANY OTHER SERVICES CAUSED BY FORCES BEYOND ITS CONTROL OR ANY FORCE MAJEURE EVENT SUCH AS ACT OF TERRORISM, LOSS OF POWER, ACT OF GOD, OR SIMILAR OCCURRENCE. THE LIMITATION PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO ANY CLAIM FILED BY LICENSEE ARISING OUT OF OR RELATING TO ANY SEPARATELY LICENSED SOFTWARE THAT MAY BE USED WITH THE EVISION E-COMMERCE SOFTWARE.

 

 

  1. Evision E-Commerce Software Assurance Program: Licensee will automatically be enrolled in the Evision E-Commerce Software Assurance Program. For each Software Assurance Program Period (as that term is defined in Exhibit A) Licensee will be charged a nonrefundable Software Assurance Program Charge (as that term is defined in Exhibit A). The Evision E-Commerce Software Assurance Program includes Upgrades and support. Upgrades are free of charge for as long as Licensee is enrolled in the Software Assurance Program. Three years after the date of the initial purchase and each three-year anniversary thereafter, Licensor may adjust the Standard Software Assurance Charge (as that term is defined in Exhibit A) then in effect for all software purchased under this Agreement to 16% of the Licensor’s then-current retail prices. Licensee may cancel the Software Assurance Program by providing Licensor with 60 days’ notice prior to the end of any Software Assurance Program Period. Licensor may cancel the Software Assurance Program upon Licensee’s failure to pay timely any applicable Software Assurance Program Charge. A cancelled Software Assurance Program may not be renewed except upon payment of double the amount of fees that would have been paid during the lapsed period.

 

  1. Upgrades and Patches of Evision E-Commerce Software: “Patch” as used in this Agreement means a specific, targeted fix to a discrete problem in the use or functionality of the Evision E-Commerce Software that Licensor in its sole discretion defines to constitute a “Patch” and may from time to time provide to Licensee. “Upgrade” as used in this Agreement means a new version of some or all of the Evision E-Commerce Software, or an improvement in the use or functionality of the Evision E-Commerce Software more substantial than a Patch, that Licensor in its sole discretion defines to constitute an “Upgrade” and may from time to time provide to Licensees enrolled in the Evision E-Commerce Software Assurance program. Licensee expressly acknowledges that Upgrades and Patches may change functionality of the Evision E-Commerce Software and integration with other systems, and may not work with some or all of the Evision E-Commerce Software modules, or be backward compatible with earlier versions of Evision E-Commerce Software. Installation of Patches and Upgrades is the choice and responsibility of Licensee. To the extent that operation of the Evision E-Commerce Software is affected by problems in standard software, including, but not limited to, Microsoft Internet Explorer, Windows and the Microsoft.Net Framework, then Licensee shall install updates to such standard software per Licensor’s specifications in order to resolve these issues. Licensor has no control over such standard software, and cannot assure that problems with such standard software will be corrected, or that such corrections will be made in a timely manner.

  2. Waivers: All waivers must be in writing and signed by authorized representatives of the parties. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion.

  3. Severability: If any provision of this Agreement is adjudicated to be unenforceable, such provision shall be deemed changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall continue in full force and effect.

  4. Assignment: Licensee may not assign this Agreement, by operation of law or otherwise, which includes any change of control in the ownership structure of Licensee. Licensor may assign this Agreement to a successor (whether by merger, a sale of all or a significant portion of its assets, a sale of a controlling interest of its capital stock, or otherwise) that agrees to assume Licensor’s obligations under this Agreement. Any attempted assignment or transfer in violation of this Section shall be void and of no force or effect. Subject to the provisions of this Section 9, this Agreement shall be binding upon the successors and assigns of the parties.

  5. Entire Agreement: This Agreement, and any attachment that is expressly incorporated in this Agreement, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings and communications, whether written or oral. This Agreement may be amended only by a written document signed by both parties. In the event of a conflict between any provision of this Agreement with any other attachment or document, this Agreement shall control. Any term or condition not specifically authorized by this Agreement included in any Licensee invoice, purchase order or other document rendered pursuant to this Agreement is of no force or effect unless the specific term or condition has been previously agreed to by the parties in writing in a separate agreement. No action by Licensor (including, without limitation, receipt of payment of any such invoice, or acceptance of any purchase order, in whole or in part) shall be construed as making any such term or condition binding on Licensor.

  6. Audit: Licensee shall maintain accurate records of its use (including any discontinued use) of the Evision E-Commerce Software, and shall provide these records to Licensor upon 10 days’ prior notice. Licensor may only request these records once in any 12-month period. If the records are not timely produced, or if Licensor has reasonable grounds to question their accuracy, Licensor may engage, at its expense, an independent auditor to audit Licensee’s use of the Evision E-Commerce Software. The auditor shall not interfere unreasonably with Licensee’s normal business operations, but Licensee shall reasonably cooperate with efforts to conduct the audit, including providing the auditor, in a timely fashion, all relevant information regarding its use of the Evision E-Commerce Software. If such audit determines any unauthorized use of the Evision E-Commerce Software, Licensor shall invoice Licensee (i) for all such unauthorized use in accordance with Licensor’s then-current retail prices, and (ii) an increased Software Assurance Program Charge for the excess usage in accordance with the pricing specified in Section 1.1.2. of Exhibit A, computed from the date the excess usage commenced. If this invoice exceeds 5% of previously paid license fees, Licensee shall pay the expense of the audit. Licensee shall pay all invoices authorized by this section within 30 days from receipt. This section shall survive termination of this Agreement.

Evision E-Commerce License Agreement. February 4, 2014.

Exhibit A

Agreement means the Evision E-Commerce License Agreement and these Exhibits A and B.

Licensor as used in this Agreement is defined as the applicable Evision E-Commerce group entity granting the license.

Licensee as used in this Agreement is defined as the customer defined in the offer from the partner, subject to final agreement between Licensor and such customer. Subject to the purchase of any additional license usage rights (to be defined in the final agreement between Licensor and Licensee), this license excludes the use by any subsidiaries, parents or affiliates of the Licensee, and is limited to the use by Licensee only.

Software Assurance Program Charge as used in this Agreement is set at 16% of the list price of the licensing option (the “Standard Software Assurance Charge”), and is subject to increase based on the purchase of additional license usage rights, additional support options, additional licensing procurement, and as per section 5 of the Evision E-Commerce License Agreement.

Software Assurance Program Period as used in this Agreement is defined as 365 days.

Permitted Usage as used in this Agreement is defined according to the license edition purchased (i.e. a limited or unlimited number of Licensee’s domains), or as further defined in the final agreement between Licensor and Licensee.

Evision E-Commerce Software as used in this Agreement will be defined in the direct agreement between Licensor and Licensee.

Exhibit B

Evision E-Commerce Software Assurance and Support Program

The basic Evision E-Commerce Software Assurance Program is at the Standard Support Level. A description of the current Standard Program offered is below. Evision E-Commerce offers additional Software Assurance Programs for additional cost that are fixed at the time the upgraded program is purchased. Additional terms and conditions for the Evision E-Commerce Support and Software Assurance Program can be found in Section 5 and Section 6 of the Evision E-Commerce License Agreement.

Summary of the Evision E-Commerce Standard Program

 

Certified Developer Helpdesk

Evision E-Commerce provides a helpdesk portal for Evision E-Commerce Certified Developers. This portal is operated by a skilled Evision E-Commerce technical team that provides assistance. Trouble incidents can be opened 24x7 and each issue ID number will be responded to in no more than one (1) business day, but often within a few business hours.

Documentation Library Evision E-Commerce’s online documentation library of technical documentation (PDF), tool downloads, code snippets, reference documents, FAQs and articles. Documents cover a range of Evision E-Commerce construction levels and topics, API details, troubleshooting techniques, relevant conceptual articles, tutorials, external integration examples, training materials and more.

Software Maintenance

The Evision E-Commerce Software Assurance Program includes free access to all new versions of the Evision E-Commerce Software to keep your implementation current. This includes all major releases, incremental upgrade releases and discretionary patches.

[1] This Evision License Agreement, and Exhibits A and B attached hereto, is solely intended to be used in offers for potential customers introduced via the Evision certified partner network. Licensor’s delivery of the Evision Software is always subject to a final executed agreement directly between such customer and Licensor.

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