This User License Agreement ("ULA") is a legal agreement between you (either an individual or a single entity) and Evotrack Tracking Platform, 1603 Capitol Ave, Cheyenne (hereinafter “Evotrack”) for the Evotrack Performance Marketing Platform (the Product), which includes computer software and may include associated media, printed materials, and "online" or electronic documentation (also the "Product").
YOU AGREE TO BE BOUND BY THE TERMS OF THIS ULA BY USING THE PRODUCT. IF YOU DO NOT AGREE, DO NOT USE THE PRODUCT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT SIGN-UP AND DO NOT ACCESS OR OTHERWISE USE ANY OF OUR PRODUCT.
In addition, by using updates that you receive as part of the Product ("UPDATES"), you agree to be bound by the additional license terms that accompany such UPDATES. If you do not agree to the additional license terms that accompany such UPDATES, you may not use any subsequent UPDATES.
Applicability of License
Depending on the product configuration you have chosen, the Product may consist of product documentation, a set amount of Conversions clicks and offers, API access, and email user support, applications, parts of applications and other tools including 3rd party software (each, a "COMPONENT," and collectively "COMPONENTS," of the Product); the Product may also include groups of COMPONENTS identified as any one or more of the following: Support, Services, Updates. This ULA defines your rights to the COMPONENTS you have elected to receive as part of your product.
General Grant of License
1. In general, for each license you have acquired for the Product, one individual is authorised to use the Product according to the terms of this ULA. Unless expressly stated otherwise, the Product may not be separated for use by more than the one individual authorised to use the Product. THIS PRODUCT IS LICENSED TO YOU, NOT SOLD.
2. You shall not, directly or indirectly (i) sell, rent out, lease, license, distribute, market, exploit the Product or any of its parts commercially, (ii) reverse engineer, decompile, disassemble, adapt, reproduce, or create derivate works of this Product (except if the Product enable You through a specific feature to create, generate or submit User Generated Content and for which You will need to create an Account), in whole or in part; (iii) create, use and/or distribute “auto”, “script” or “macro” computer programs or other “hack” programs or software applications for this Product; (iv) remove, alter, disable or circumvent any copyright and trademark indications or other authorship and origin information, notices or labels contained on or within this Product and (v) export or re-export this Product or any copy of adaptation in violation of any applicable laws or regulations.
3. While using the Product, you agree to comply will all applicable laws, rules and regulations. In all cases, you may only use the Product according to anticipated use of the Product.
1. All title, ownership rights and intellectual property rights in and to the Product and any and all copies thereof are owned by Evotrack or its licensors. The Product is protected by national and international laws, copyright treaties and conventions and other laws. This Product may contain certain licensed materials and, in that event, Evotrack’s licensors may protect their rights in the event of any violation of this Agreement. Any reproduction or representation of these licensed materials in any way and for any reason is prohibited without Evotrack’s prior permission and, if applicable, Evotrack’s licensors and representatives’. Except as expressly set forth in this ULA, all rights not granted hereunder to You are expressly reserved by Evotrack.
2. This License confers no title or ownership in the Product and should not be construed as a sale of any rights in the Product.
Limitation on Reverse Engineering, Decompilation, and Disassembly
You may not reverse engineer, decompile, or disassemble the Product, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.
Term and Termination
1. The access to the Product shall be provided to you on a month-to-month basis, until the termination of this Agreement, subject to monthly payment of the Service Fees.
2. You may terminate the Agreement and cancel the subscription prior the start of the next month. You are responsible for the monthly subscription fee payment if termination was not done in stated terms.
3. Without prejudice to any other rights, Evotrack may cancel this ULA if you do not abide by the terms and conditions of this ULA, in which case you must not use the Product and all of its component parts.
Use of the Product
1. In addition to your obligations and responsibilities provided, you: (i) shall not access (or attempt to access) the Product by any means other than through the interface that is provided by Evotrack; (ii) shall not gain or attempt to gain unauthorised access to Evotrack’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Product (or the servers and networks in connection with the Product); (iii) shall not reproduce, duplicate, copy, sell, trade or resell the Product (including platform or software), or any portion thereof, to any individual or entity for any purpose whatsoever, as well you shall not decompile or reverse engineer any part of the Product , and that these actions are specifically prohibited. As well, you shall use the Product for the lawful uses only.
2. Violation of any provision of this section shall be considered a material breach of this Agreement.
3. The Product is operated and maintained solely by the Evotrack.
1. Evotrack does not provide any services to the Users, except of Licensee Level Support as agreed to.
2. Evotrack is not obligated to provide technical or customer support for the Product. In the event technical or customer support is offered or included, Evotrack has a right to alter or terminate the support at any time without notice.
3. Evotrack will use commercially reasonable efforts assist you, through your authorized Account contacts, with initial set up and configuration, issues relating to your ability to access the Product and Services and troubleshooting other issues related to Evotrack’s delivery of the Product and Services.
4. Only your authorized Account contacts may request information, changes or technical support.
5. Evotrack’s technical support response time depends on the complexity of the inquiry and support request volume.
Collection Of Personal Data
1. In order to provide you with a better experience, adapted services and Product support, Evotrack may collect and store data about you in relation to your use of the Product. Certain data is recorded, archived, analysed and used to create user statistics. Your privacy is very important to Evotrack and Evotrack will not reveal your personal data to third parties except when expressly authorised by you to do so or in special circumstances.
Consent To Use of Data
1. To facilitate the services, product support, product development and improvement as well as other services to you, you agree that Evotrack may collect certain information about your use of the Product.
2. You agree that Evotrack and its affiliates may collect and use technical information you provide as a part of the services related to the Product.
3. We will maintain certain data that you transmit to the Product for the purpose of managing the Service, as well as data relating to your use of the Product. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Product as set out in our Data Processing Addendum.
4. You understand that Evotrack provides retention for data collected within the Product and as part of the Services provided to you for a maximum 12 month.
5. You accept that if you wish to maintain client and end user data beyond the 12 months period offered by Evotrack, you must download the relevant logs and maintain it in accordance with all applicable laws including but not limited to Data Protection Laws.
6. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
Disclaimer of warranties
1. The Limited Warranty referenced below is the only express warranty made to you and is provided in lieu of any other express warranties (if any) created.
2. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Evotrack and its suppliers provide the Product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied, or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Product, and the provision of or failure to provide support services. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT.
Exclusion of incidental, consequential, and certain other damages
1. To the maximum extent permitted by applicable law, in no event shall Evotrack or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the product, the provision of or failure to provide support services, or otherwise under or in connection with any provision of this ULA, even in the event of the fault, tort (including negligence), strict liability, breach of contract, or breach of warranty of Evotrack or any supplier, and even if Evotrack or any supplier has been advised of the possibility of such damages.
2. Evotrack is not responsible for the downtime resulting from Force Majeure Events as provided for in this Agreement, any downtime caused by Evotrack`s exercised right to suspend Customer’s access to the Product and downtime caused by any malfunction or failure of Customer’s hardware, systems, other software or internet access service.
3. Evotrack is not responsible for the working capacity of the external services and plugins. Claims regarding non-operation of any of such services and plugins should be sent directly to the Evotrack of such service or plugin.
Limitation of liability and remedies
Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Evotrack and any of its suppliers under any provision of this ULA and your exclusive remedy for all of the foregoing shall be limited to the greater of the amount actually paid by you for the Product or U.S. $500. The foregoing limitations, exclusions, and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
This ULA (including any addendum or amendment to this ULA which is included with the Product) are the entire agreement between you and Evotrack relating to the Product and the Support Services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Product or any other subject matter covered by this ULA. To the extent the terms of any Evotrack policies or programs for Support Services conflict with the terms of this ULA, the terms of this ULA shall control.
Copyright and Intellectual Property
The Product is protected by copyright and other intellectual property laws and treaties. Evotrack or its suppliers own the title, copyright, and other intellectual property rights in the Product. The Product is licensed, not sold.
Changes to this ULA or to the product
1. Evotrack reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this ULA for security, legal, best practice or regulatory reasons. Such changes will be effective with or as applicable, without prior notice to you.
2. If any future changes to this ULA are unacceptable to you or cause you to no longer be in agreement or compliance with this ULA, you may terminate this ULA and must immediately seize the use of the Product. Your continued use of the Product following any revision to this ULA constitutes your complete and irrevocable acceptance of any and all such changes.
3. Evotrack may modify the Product for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimise the Product. You agree that the Product may install or download the modifications automatically. You agree that Evotrack may stop to support previous versions of the Product upon availability of an updated version.
The Parties agree that neither Party will be liable, or be considered to be in breach of the Agreement, on account of either Party’s delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond either Party’s reasonable control and such Party is unable to overcome through the exercise of commercially reasonable diligence («Force Majeure Event»). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, breakdown of or lack of access to IT systems, or of damage to the data maintained in these systems as a result of any of the reasons listed herein, a power supply failure or failure in Owner’s systems, legislative or administrative interventions, natural disasters, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labour difficulties, or any act or omission of any other person or entity, the affected Party will give the other Party notice and will use commercially reasonable efforts to minimise the impact of any such event.
No failure or delay by Evotrack (or its licensors) to exercise any right or remedy provided under this ULA or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Waiver of a right or remedy may be considered to have taken place only after signing of a written statement to this effect by Evotrack or by the User.
If any court of competent jurisdiction or competent authority finds that any provision of this ULA is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this ULA shall not be affected. If any invalid, unenforceable or illegal provision of this ULA would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable to reflect Evotrack ’s initial intentions.
Law and Jurisdiction
To the extent permitted by applicable law, this ULA, and any disputes or claims arising out of or in connection with it, or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of US, without giving effect to any principles of conflicts of laws.