Length of Contract:
The initial term (“Term”) of this Agreement shall commence on the Effective Date and continue for a term of twelve (12) consecutive months. This Agreement will automatically renew on a monthly or annual basis unless terminated in writing by either Party with 30 day notice. Evolve Systems® reserves the right to modify the contract language and such modifications are effective by receipt of the client. If Client or Evolve Systems® terminate the project, Evolve Systems® will calculate the actual time and expenses incurred up to the project termination date and either credit the difference or bill the outstanding balance to Client.
Terms and Conditions:
Client agrees to the following legal rules regarding website content: Client shall not upload anything that: (a) is considered deceptive; (b) is considered defamatory, libelous, lewd, or obscene; (c) is considered racist, threatening, harassing, or a violation of intellectual property laws; (d) promotes stolen, pirated or unlicensed copyrighted material; (e) violates any laws regarding unfair competition, anti-discrimination or false advertising; (f) contains viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful programming routines; (g) infringes on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; or (h) violates any applicable law, statute, ordinance or regulation. All materials deemed to be in violation of any of these rules are subject to removal at the discretion of Evolve Systems®. To clarify further: Evolve Systems®’ internet services are all Client/Server based systems, which means that all software code remains on proprietary servers at all times. Evolve Systems® will host Client’s CMS or e-commerce application for use in selling or promoting Client’s products and/or services. Evolve Systems® will provide a secure, password-protected control panel from which Client may update, add to, and remove items as well as retrieve orders placed. Client must keep their password(s) private at all times. If Client’s password(s) is/are compromised and it/they cannot be changed using the control panel, Client agrees to contact Evolve Systems® immediately to change the password(s) via the Help Desk at www.evolvehelpdesk.com. Evolve Systems® will not be held responsible for downtime or damages resulting from Internet downtime. As a self managed system, local site backup is exclusively Client’s responsibility, unless Client explicitly contracts with Evolve Systems® to provide a backup service for a fee. It is recommended that a backup be performed with each software enhancement to ensure a current backup remains in a secure area. For optimum security, Evolve Systems® recommends that site backup occur both prior to and following any system changes. Instructions on proper back up procedures can be found in the system tutorials and also through the Admin control panels. All applicable setup & installation fees are non-refundable. To ensure our office meets security compliance requirements, Evolve Systems® does not keep your User Name or Password on file for any applications. It is the clients responsibility to record and provide user names and passwords for requested assistance. Client may choose to not renew or cancel hosting by sending written notice to: Evolve Systems 2974 Rice Street, St. Paul, MN 55113. Non-refundable thirty (30) day notice is required.
Permissions:
Evolve Systems® may also use clients domain name and website project in their marketing portfolio and promote the services of the client’s website on Social Media.
Indebtedness:
Invoices not paid within 30 days of the date of statement are subject to a 1.5% monthly finance charge (18% APR). Client shall also be subject to immediate service interruption. Payments must be mailed to Evolve Systems®, 2974 Rice Street, St. Paul, MN 55113. Agreed Payment Terms may be established per project, if payment milestones are missed, programming will be delayed and this will result in launch dates being pushed out. If client extends the deadlines for deliverable materials to Evolve Systems® for over 2 months, Evolve Systems® will add an additional 10% surcharge on to the project for the additional project management time to pause and restart a project. The terms of this agreement may be modified by approved change order requests, on-going requests and work requests.
Method of Payment:
Upon execution of this Agreement rendered, by Client’s authorizing signature herein acknowledged, Client agrees to make payment in full of fees and/or indebtedness to Evolve Systems®. Client acknowledges they are approved with their company to enter company into a binding contract. Client has read, understands and further agrees to all terms and conditions for any automatic payment structure, with said method of payment, and with the Terms of Authorization for electronic merchant card processing.
Remedies:
Evolve Systems® may terminate this Agreement and the term demised upon the happening of any one or more of the following events and the same are not remedied within thirty (30) days (within ten (10) days in regard to the payment of invoices or any other charges) after written notice to Client: (a) the making by Client of an assignment for the benefit of its creditors; (b) the levying of a writ of execution or attachment on or against the property of Client; (c) in the event proceedings are instituted in a court of competent jurisdiction for the reorganization, liquidation or involuntary dissolution of Client, or for its adjudication as bankrupt or insolvent, or for the appointment of a receiver of the property of Client, and said proceedings are not dismissed, and any receiver, trustee or liquidator appointed therein discharged, within thirty (30) days after the institution of said proceedings; and (d) the failure of Client to pay any amount under the terms, covenants, and conditions herein when due or to perform any other of its covenants under this Agreement. Upon the termination of the Agreement as aforesaid, Client shall be liable for all terms, covenants, and conditions under this agreement as well as reasonable attorney fees incurred to collect unsatisfied debts or obligations Client owes to Evolve Systems®. Notwithstanding such termination, the liability of Client for the terms, covenants, and conditions, provided for herein above shall not be extinguished for the balance of the term remaining after said termination. With or without terminating this Agreement, Evolve Systems® shall have the right to accelerate all payments and other charges hereunder and recover immediately from Client the amount of the payments and other charges for the balance of the stated term.
Consent to Jurisdiction:
The Parties hereto agree that all actions or proceeding arising in connection with this Agreement shall be tried exclusively in the State and Federal courts located in the County of Ramsey, State of Minnesota. The aforementioned choice of venue is intended by the Parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the Parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each Party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal courts located in the County of Ramsey, State of Minnesota shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement. Any final judgment rendered against a Party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.
Technical Support:
Web site technical support questions are to be submitted to the Help Desk at www.evolvehelpdesk.com. FAQ and on-line tutorials are available through www.evolve-systems.com,. Additional support material can be found online with YouTube, Concrete 5, WordPress, Joomla, Drupal, Big Commerce. X-Cart, and Ecwid systems. If Evolve Systems® provides Client with web-based email, technical assistance can be reached 24/7 at 480-624-2500. The time spent by a technician working on a Help Desk ticket is billable at $31.25 per fifteen-minute block. There is a fifteen-minute minimum, and all charges will be automatically billed to Client. If software updates are required ES reserves the right to automatically update the software and charge the tech service time to complete the work if it is determined that a security breach is at risk because of new versions available. Any tech time for Malware attacks or additional virus attacks will be invoiced out for the time spent scrubbing the code.
Domain Name Changes:
The license purchased for Client’s website will be applied to Client’s primary domain name. Additional domain names can be pointed to the website, however, it will resolve to the one primary domain name. In the event of a business name change, the contents of the website can be changed, but a license cannot be transferred so Client must purchase a new license. Client shall contact Evolve Systems® for current pricing and details, if needed.
Indemnification:
- Evolve Systems’ Indemnification. Evolve Systems® shall indemnify, defend, and hold Client harmless again any claims brought against Client to the extent Evolve Systems® infringed any trademark, copyright or patent in the United States or misappropriated any trade secret of a third party.
- Client’s Indemnification. Subject to the preceding paragraph, Client agrees to indemnify, defend and hold Evolve Systems® harmless against any claims brought against Evolve Systems® to the extent those claims are based upon allegations that Client (a) infringed intellectual property rights, or (b) breached Client’s agreement (if any) with any customer purchasing or licensing Client’s goods or services. Additionally, the web applications are self maintained and any content Client’s staff adds to the website is not the responsibility of Evolve Systems® and Evolve Systems® will not be held liable. Evolve Systems® provides On-Line marketing for clients, the materials created and postings made shall not be the responsibility of Evolve Systems® and neither Client nor any other third party may hold Evolve Systems® liable for any content on the website.
- Conditions to Indemnification. The foregoing obligations are conditioned upon: (a) prompt written notice by the indemnified Party to the indemnifying Party of any claim, action or demand for which indemnity is claimed; (b) complete control of the defense and settlement thereof by the indemnifying Party, provided that no settlement of an indemnified claim shall be made without the consent of the indemnified Party, such consent not to be unreasonable withheld or delayed; and (c) reasonable cooperation by the indemnified Party in the defense as the indemnifying Party may request. The indemnified Party shall have the right to participate in the defense against the indemnified claims with counsel of its choice at its own expense.
- Definition of “Claims.” For purposes of this section, “Claims” means losses, actions, liabilities, damages, expenses and reasonable attorneys’ fees and court costs.
Limitation of Liability:
Evolve Systems® warrants that the provided website(s) and/or service(s) (“Products”) in this Agreement will substantially perform the functions or generally conform to the specifications published by Evolve Systems® for the Products. If it is determined that the Products do not operate according to such documentation, Evolve shall use reasonable efforts, consistent with industry standards, to cure the defect. All Products are provided on an as-is and as-available basis. Other than as expressly set out herein, Evolve Systems® has not, and does not, make any warranties whether express or implied. This disclaimer includes, but is not limited to, the warranties of non-infringement, fitness for a particular purpose, warranties of merchantability, and title. Evolve Systems® does not warrant that the Products will be uninterrupted, error-free, secure or free from viruses or other harmful components. Evolve Systems® is not liable, and expressly disclaims any liability, for the content of any data transferred either to or from Client, or stored by Client or any of Client’s customers via the services provided by Evolve Systems®.
Due to the nature of a self managed content management system and/or e-commerce shopping systems clients are able to manipulate their own content and copy, it is the responsibility of the client to maintain their site in compliance with any and all internet protocol or legal terms, in addition to copy, content and alt attributes within the image tags for website accessibility.
Evolve Systems® specifically disclaims any and all warranties regarding services provided by third parties, regardless of whether those services appear to be provided by Evolve Systems®. No warranties made by these third party entities to Evolve Systems® shall be passed through to Client, nor shall Client claim to be a third party beneficiary of such warranties.
E-Commerce Specifications
Client understands and agrees that the Client is responsible for creating and publishing Terms & Conditions, Personal Privacy Policies, and for managing their own data in compliance with PCI standards for their merchant processing related to the shopping cart and general business practices. Client must also verify and set up shipping charges and processes. Client must determine and verify taxation standards for sales and use tax and must monitor all transactions for compliance with security obligations. Any and all requested assistance to complete PCI questionnaires or server scans need to be submitted through the Help Desk and will be billed out at the current technical support rates.
E-Commerce Server Updates:
The costs of routine server enhancements, transfers, or technical support time spent working on routine server enhancements or transfers are billable at the current Help Desk technical support rates. Client shall inform Evolve Systems® of any DNS, username, and/or password changes using the Help Desk system.
Miscellaneous:
Force Majeure. Evolve Systems® will make every effort to keep Client’s website and other provided services operational. However, certain factors outside of our control may, from time to time, result in temporary service interruptions. Client agrees not to hold Evolve Systems® liable for any of the consequences of such interruptions caused by an unpreventable accident or event that is the result of natural causes and is beyond human power to cause, prevent, or control; including but not limited to floods, fires, earth movements, hurricanes, winds, ice, lightning, extreme weather conditions, government intervention or other acts of God. In addition, Client agrees not to hold Evolve System responsible for the consequences of interruptions caused by war, explosion, or malicious mischief.
Further Action. In addition to the actions described in this Agreement, the Client shall take all other actions reasonably necessary to carry out the intent of this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts; each of which when so executed and delivered shall be an original, but such counterparts shall together constitute one and the same Agreement.
Severability. Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such portion without invalidating the remaining provisions of this Agreement, or any other agreement executed between Evolve Systems® and the Client and/or any other party, or affecting the validity or enforceability of such provisions.
Waivers. No failure on the part of Evolve Systems® to exercise, and no delay in exercising, any right or remedy hereunder or under applicable law or any document or agreement related hereto shall operate as a waiver thereof; nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Merger. Except for this Agreement, all prior oral and written communications, commitments, alleged commitments, promises, alleged promises, agreements and alleged agreements by and between Evolve Systems® and the Client are merged into this Agreement; no other commitments, promises or agreements, oral or written, shall be enforceable against Client; the Client understands, acknowledges, and agrees that Evolve Systems® has not made any assurances to them other than as set forth in this Agreement.
Headings. The various headings of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
Time of Essence. Time is of the essence with respect to all deadlines imposed by this Agreement.
Personal Guarantee:
It is agreed that as an inducement for Evolve Systems® to enter into this agreement according to the terms and conditions contained herein, all the obligations of the Client will be guaranteed by (“Guarantor”).
Each individual Guarantor unconditionally guarantees to Evolve Systems® the full and punctual performance by Client of all the terms, covenants, and conditions to be performed or met by Client under the Agreement. If, at any time, Client shall default in the performance of any of the terms, covenants, or conditions in the Agreement to be performed or met by Client, Guarantor will perform or meet the same, as the case may be, instead of Client. Evolve Systems® may bring suit against Guarantor to enforce any liability, obligation, or duty guaranteed hereunder without joinder of Client, any other guarantor, or any other person.
Guarantor hereby waives notice of acceptance of this guaranty and all other notices in connection herewith or in connection with the liabilities, obligations, and duties guaranteed hereby, including notices of default by Client under the Agreement, and waives diligence, presentment, and suit on the part of Evolve Systems® in the enforcement of any liability, obligations, or duty guaranteed hereby.
The obligations of Guarantor under the guaranty shall not be released by: {i} any waiver of any of the terms or conditions of the Agreement, or the giving of any consent to any manner or thing related to the Agreement, or the granting of any indulgences or extensions of time to Client, by Evolve Systems®, or its successors or assigns; {ii} Evolve System’s receipt, application, or release of security given for the performance of Client’s obligations under the Agreement; {iii} any modification of the Agreement, but in case of any such modification the liability of Guarantor shall be deemed modified in accordance with the terms of any such modification of the Agreement; or {iv} any termination of the services created by the Agreement to the extent Client remains liable under the Agreement. Any of the aforesaid may be done without notice to Guarantor.
The liability of Guarantor under this guaranty shall in no way be affected by: {i} the release or discharge of Client in any creditors, receivership, bankruptcy, other insolvency proceedings, or other proceedings; {ii} impairment, limitation or modification of the liability of Client or the estate of Client in bankruptcy or of any remedy for the enforcement of Client’s liability under the Agreement, resulting from the operation of any present or future provisions of the Federal Bankruptcy Code or other statutes or from the decision of any court; {iii} the rejection or disaffirmance of the Agreement in any such proceedings; {iv} the assignment or transfer of the Agreement by the Client; {v} any disability or other defense of Client; {vi} the cessation from any cause whatsoever of the liability of Client under the Agreement; or {vii} any reorganization, merger, consolidation, combination, or sale of substantially all the assets or Client. Guarantor shall indemnify Evolve Systems® for any payments under the Agreement or this guaranty recovered from Evolve Systems® or avoided in bankruptcy or other insolvency proceedings for any reasons.
Guarantor hereby waives all suretyship and other similar defenses.
Until Client shall have satisfied all of its obligations to Evolve Systems® under the Agreement, Guarantor: {i} shall have no right of subrogation against Client by reason of any payments or acts of performance by Guarantor in compliance with the obligations of Guarantor hereunder; {ii} waives any right to enforce any remedy which Guarantor now or hereafter shall have against Client by reason of any one or more payments or acts of performance in compliance with the obligations of Guarantor hereunder; and {iii} subordinates any liability or indebtedness of Client now or hereafter held by Guarantor to the obligations of Client to Evolve Systems® under the Agreement.
This Guaranty shall apply to this Agreement, any extension or renewal thereof following the initial term thereof, or any extension or renewal term.
The term “Evolve Systems®” as used herein includes the successors and assigns of Evolve Systems® and any successor to the interest of Evolve Systems® under the Agreement. The term “Client” as used herein includes the successors and assigns of Client and any successor to the interest of Client under the Agreement.
For good and valuable consideration, the adequacy of which is acknowledged hereby, the undersigned jointly and severally guarantee(s) the payment of all amounts that may become due to Evolve Systems® by the business applicant for whom this application form has been completed. Client authorizes Evolve Systems® to obtain a copy of their credit report in connection with their attempt to collect the amounts guaranteed by Client. This Personal Guaranty remains effective until released, in writing, by Evolve Systems®. Each personal Guarantor must provide a copy of their current driver’s license with this Agreement. It is the responsibility of the personal guarantor to advise Evolve Systems® of any changes affecting the Guarantee provided below.
Version 07012013
E-mail: info@evolve-systems.com