a. “Software” means Evident Inc. Software with the current functionality provided by Evident Inc. It also includes any accompanying instructions, documentation, technical data, images, and other related materials.
b. “Use” means storing, loading, installing, executing, or displaying the Software on a single device, and use of the Software by way of Evident Inc. server.
c. “Product” means the Software product and its documentation as built at the time of the subscription.
d. “License” means the Software license grant and general license terms set forth herein.
f. “Term of Agreement” means the period from the date a subscription is purchased to the date of termination by either the user or Evident Inc.
g. “Subscriber” (sometimes referred to as “you”) means the individual or entity who purchases the subscription under this Agreement.
h. “Customer” means Subscriber and any entity or individual who Uses the Software through Subscriber’s subscription.
i. “This Agreement” means this entire Software Subscription and License Agreement.
j. “Upgrade” means a new release of the Product that includes a substantial new facility or capability.
2. SUBSCRIPTION TERMS
a. As part of this subscription, Subscriber receives a License as described below. Evident Inc. will provide updates to the Software, such as correction of “bugs” and certain limited improvements to existing functionality of the Software as Evident Inc. may choose to provide. The subscription does not automatically include the right to receive any Upgrades or new product releases by Evident Inc.. Evident Inc. will in its own discretion determine whether and on what terms any Upgrade or new product release will be made available to existing Subscribers.
b. The subscription entitles Customers to receive limited support as posted at http://www.evidentlabs.com or http://helpdesk.evidentlabs.com:8081/helpdesk/WebObjects/Helpdesk at the time this Agreement becomes effective.
c. Evident Inc. charges a monthly fee for the first subscription and for every additional user (plus applicable GST/PST where applicable) for the Subscription. If you purchase this subscription, you are authorizing Evident Inc. to immediately bill your credit card for the first monthly fee and to bill your credit card each month thereafter in approximately 30 day intervals on or as close to the purchase date. If for any reason any of our charges for these fees are rejected or refused by your credit card issuer for more than 60 days from the last payment, this Agreement and your subscription and license to Use the Software will automatically terminate without notice. It is your sole responsibility to ensure that payment is made and to notify Evident Inc. (via Evidentlabs.com or 877 909 7770) of any different billing instructions, if you cancel or wish to change the credit card for our billing purposes.
d. Evident Inc. will discontinue billing your credit card for any months after the month in which termination occurred. We will not pro-rate or refund any fees paid for the month in which termination occurred.
f. Subscriber may not assign or transfer this Agreement. Any such attempted assignment or transfer will be null and void. Evident Inc. may terminate this Agreement in the event of any such attempted assignment or transfer.
g. By accepting this Agreement and purchasing this Subscription, Subscriber represents and warrants that, if a natural person, Subscriber is at least 18 years of age and/or is otherwise legally able to enter into a binding contract.
h. Cancellation may be effected by notifying Evident Inc. by phone at the time you wish to cancel.
i. Product Ordering. We request information from the user on our order form. A user must provide contact information (such as name, email, and shipping address if a physical product is required) and financial information (such as credit card number, expiration date). This information is used for billing purposes and to fill customer’s orders. If we have trouble processing an order, the information is used to contact the user. Our online order center is a secure site to protect your personally identifiable and financial information.
3. LICENSE GRANT AND TERMS
b. The Software is owned, patented and copyrighted by Evident Inc.. or by third party suppliers. The Software License confers no title or ownership and is not a sale of any rights in the Software. Customer is granted only the right to Use the Software without right of sublicense.
c. Customer may not modify, reverse engineer, disassemble, decompile or otherwise attempt to access or determine the source code of the Software, copy, reproduce or distribute the Software in any way in whole or in part or create any derivative work based on the Software. Any use of these materials on any other website or networked computer environment for any purpose is prohibited. The Software is copyrighted and any unauthorized use of it is prohibited. If Customer breaches breach any of these terms, the License to Use the Software automatically terminates and Customer must immediately destroy any copied materials.
d. Customer may not export or re-export this software or any copy or adaptation in violation of any applicable laws or regulations.
e. Customer agrees that Software contains proprietary information including trade secrets, know how and confidential information that is the exclusive property of Evident Inc.. During the period this Agreement is in effect and at all times after its termination, Customer and its employees and agents shall maintain the confidentiality of this information and not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such proprietary information concerning the Software, including any flow charts, logic diagrams, user manuals and screens, to persons not an employee of Customer without the prior written consent of Evident Inc..
4. DISCLAIMERS AND LIMITATIONS
a. TO THE EXTENT ALLOWED BY LAW, THIS SOFTWARE AND THE ACCESS TO OUR SERVER ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, EVIDENT INC. SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, ACCURACY OF INFORMATIONAL CONTENT, AND FITNESS FOR A PARTICULAR PURPOSE, THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EVIDENT INC. OR EVIDENT INC.’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. EVIDENT INC. DOES NOT REPRESENT THAT ITS SERVER WILL BE AVAILABLE AT ALL TIMES OR WILL BE FUNCTIONING PROPERLY WHEN YOU OR OTHERS WISH TO ACCESS THE FUNCTIONALITY OF THE SOFTWARE. OUR SERVER MAY BE UNAVAILABLE AT TIMES FOR MAINTENANCE OR FOR A VARIETY OF OTHER REASONS. WE ARE NOT LIABLE TO YOU FOR ANY PERIODS OF UNAVAILABILITY AND YOU WILL NOT BE ENTITLED TO ANY REFUNDS FOR THOSE PERIODS WHEN THE SERVER IS NOT AVAILABLE OR IS NOT FUNCTIONING PROPERLY. EVIDENT INC. WILL ATTEMPT SERVER MAINTENANCE DURING LOW USAGE PERIODS TO MINIMIZE UNAVAILABILITY. Some jurisdictions do not allow exclusions of implied warranties or conditions, so the above exclusion may not apply to you to the extent prohibited by applicable laws.
b. EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT WILL EVIDENT INC. OR ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUPPLIERS BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING LOST PROFIT, LOST DATA, OR DOWNTIME COSTS), ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SOFTWARE, WHETHER BASED IN WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER OR NOT EVIDENT INC. WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Evident Inc. and its suppliers’ entire liability and your exclusive remedy shall be, at Evident Inc.’s option from time to time exercised subject to applicable law, (a) return of the price paid (if any) for the Product, or (b) repair or replacement of the Product.
c. NOTE, EXCEPT TO THE EXTENT ALLOWED BY LOCAL LAW, THESE WARRANTY TERMS DO NOT EXCLUDE, RESTRICT OR MODIFY, AND ARE IN ADDITION TO, THE MANDATORY STATUTORY RIGHTS APPLICABLE TO THE LICENSE OF THE SOFTWARE TO YOU; PROVIDED, HOWEVER, THAT THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS SPECIFICALLY DISCLAIMED AND SHALL NOT GOVERN OR APPLY TO THE SOFTWARE PROVIDED IN CONNECTION WITH THIS WARRANTY STATEMENT.
d. EVIDENT INC. DOES NOT PROMISE THAT THE SOFTWARE WILL FUNCTION ON OR BE COMPATIBLE WITH YOUR DEVICE. EVIDENT INC. DOES NOT PROMISE OR WARRANT THAT YOUR DEVICE WILL BE COMPATIBLE WITH THE FUNCTIONALITY AVAILABLE THROUGH OUR SERVER. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO ENSURE THAT CUSTOMER’S DEVICE AND INTERNET ACCESS ARE COMPATIBLE WITH THE SOFTWARE AND THE SERVER FUNCTIONALITY.
b. Customer agrees not to use the Software or the Subscription to interfere with or disrupt servers or networks connected to the Software.
6. GENERAL PROVISIONS
a. This Agreement and any disputes arising shall be governed by the laws of Ontario, Canada, without regard to conflicts of laws principles. Customer hereby expressly consents to the jurisdiction and venue in Toronto, Ontario over any disputes arising from or related in any manner to this Agreement. The parties hereby expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods to the Agreement.
b. If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect. Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. Provisions herein which by their nature extend beyond the termination of any license of Software will remain in effect until fulfilled.
c. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer’s additional or different terms and conditions will not apply. This Agreement may not be changed except by an amendment signed by an authorized representative of each party.
7. HIPAA BUSINESS ASSOCIATES CONTRACT AMENDMENT DETAILS
a. No amendments are present at this time.