6.1. Information Security

Provider will employ security measures in accordance with Provider’s privacy policy, as amended from time to time, which can be found at the following web address:   https://evolution.global/legal/privacy-policy

6.2. Data Breach Procedures

Provider maintains a data breach plan in accordance with the criteria set forth in Provider’s privacy policy and shall implement the procedures required under such data breach plan on the occurrence of a data breach (as defined in such plan).

6.3. Customer Control and Responsibility

Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (”Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

6.4. Access and Security

Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.‌

6.5. Privacy

The Parties agree to comply with the Data Processing Addendum, which is incorporated into this Agreement. Customer agrees that it will only transfer Personal Data to the Services to the extent necessary for Customer to access and make use of the Services and to the extent permitted by Data Protection Laws given the nature of the Personal Data and the specifics of the Services and the terms of this Agreement. Except as may otherwise be expressly provided in applicable Supplemental Terms, described in the Documentation, or otherwise agreed by the Parties in writing, Customer shall not use the Services to Process any Sensitive Information and shall use reasonable efforts to restrict the inclusion of other Personal Data in Customer Data, including by applying filters, masking, and other tools and configurations described in the Documentation, including at https://evolution.global/data-processing-addendum.

7.1. Payment for Services

Except as provided in Section 7.2 with respect to good faith disputes, Customer agrees to pay all fees charged by Evolution Global for Customer’s use of Services in accordance with this Agreement and applicable SOW(s) and Service Plan(s) (collectively, “Fees”). Except as otherwise provided in an SOW, (a) prices for Services are set forth on the Pricing Page; (b) Monthly Minimums are invoiced in advance of services; (c) Fees are calculated on the basis of usage and invoiced monthly in arrears; (d) Fees must be paid in U.S. dollars and, subject to Section 7.2,  within 5 days of invoice; and (e) Fees for Services include standard Support at no additional charge. The criteria for calculating usage vary by Service type and feature as specified in the applicable Service Plan.

7.2. Payment Disputes

Customer must assert any good faith dispute with regard to Fees in writing within 5 days of receipt of the invoice giving rise to the dispute. Except in the event of a good faith dispute, if Customer fails to make payment when due, without limiting Evolution Global’s other rights and remedies: (a) Evolution Global may charge interest on the past due amount at a rate of 1.5% per month or, if lower, the highest rate permitted under Applicable Law; (b) Customer shall reimburse Evolution Global for all reasonable costs incurred by Evolution Global in collecting any late payments or interest, including reasonable attorneys’ fees; and (c) if such failure continues for 10 days or more, Evolution Global may suspend Customer’s and its Authorized Users’ access to the Services until such amounts are paid in full. Evolution Global will not exercise its suspension or termination rights or apply interest on late Fees if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.

7.3. No Deductions or Setoffs

All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than Service Credits issued pursuant to Section 3.2 or any deduction or withholding of tax as may be required by applicable Law).

7.4. Payment Methods

If Customer is paying Fees using a credit card or any digital payment method supported by Evolution Global, Customer authorizes Evolution Global to charge Customer’s account for the Services using that payment method. Customer must keep all information in its billing account current to ensure that all Fees are charged to the appropriate account and are timely paid. If Customer notifies Evolution Global to stop using a previously designated payment method and fails to designate an alternative, Evolution Global may immediately suspend use and access to the Services. Any notice from Customer changing its billing account will not affect charges Evolution Global submits to Customer’s billing account before Evolution Global can reasonably act on Customer’s request. Evolution Global uses a third-party intermediary to manage credit card processing, and this intermediary is not permitted to use Customer’s credit card information except in connection with Customer’s authorized purchases. Notice (including email) from Evolution Global’s third-party credit card processor declining Customer’s credit card or otherwise relating to Customer’s account will be deemed valid notice from Evolution Global.

7.5. Taxes

All Fees are exclusive of taxes, levies, duties or charges imposed by government authorities (collectively, “Taxes”). Except for Taxes on Evolution Global’s income, revenues, gross receipts, personnel or assets, Customer shall be solely responsible for all sales, service, value-added, use, excise, consumption and any other Taxes on amounts payable by Customer under the SOWs and this Agreement. Without limiting the foregoing, if Customer is required to deduct or withhold any Taxes under Applicable Laws outside the United States, Customer is responsible for remitting such Taxes in a timely manner and in accordance with those Applicable Laws and Customer shall not offset any Fees payable to Evolution Global for any such remittances.

7.6. Fee Increases

Provider may increase Fees for any Renewal Term after the Initial Term, including any contract year of any Renewal Term, by providing written notice to Customer at least thirty (30) calendar days prior to the commencement of such Renewal Term, and the applicable Statement of Work will be deemed amended accordingly.

7.7. Reimbursable Expenses

Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services (”Reimbursable Expenses”).  Customer agrees and understands that the cost of these out-of -pocket services shall adjust according the vendor charging for such service and therefore, may fluctuate, higher or lower, on a monthly basis, where applicable, and are therefore, not subject to the notice referenced in Section 7.6.

8.1. Auto Renewal

Unless either Party takes a non-renewal action as described in Section 8.3, SOWs will automatically renew as a new SOW for additional periods of the same duration as the expiring SOW Term (each, a “Renewal SOW Term”). For SOWs that have a duration longer than 12 months, Evolution Global will give Customer Administrator notice by email on or around 30 days prior to the start of the Renewal SOW Term. Such notice will include notice of pricing adjustments, if any, pursuant to Section 8.2 below. For SOWs that have a duration of 12-months or less, Evolution Global will give Customer Administrator notice by email on or around 15 days’ prior to the start of the Renewal SOW Term solely in connection with pricing adjustments (as described in Section 8.2) or other SOW changes.  The failure of Customer to take a non-renewal action in a timely manner shall be deemed to constitute consent to the applicable fee increase.

8.2. Auto-Renewal Pricing Adjustments

In connection with any auto-renewal for SOWs that have a duration of 12-months or longer, Evolution Global may increase the pricing in effect at the end of the applicable SOW Term for the Services by up to the greater of 9% or a percentage equal to the increase for the prior 12-month period (or the prior period of the same duration as the prior SOW Term, if longer) in the CPI – All Urban Consumers (U.S. All Items) or successor series, as published by the U.S. Bureau of Labor Statistics. Unless explicitly provided otherwise on the applicable SOW: (i) credits do not renew and promotional or one-time pricing for any Services under the SOW will not be extended to any renewal; and (ii) any renewal for SOWs that have a duration of less than 12-months, or where Customer seeks a reduction in the subscription quantity and/or the SOW Term will result in re-pricing at renewal and will not be subject to the limits herein.

8.3. Non-Renewal Action

If Customer does not want to auto-renew, Customer must submit a request to their Evolution Global Connect Team at least 15 days before the expiration of the then current SOW Term or make the desired changes within the Services. If Customer does not want to continue to use Evolution Global Services, Customer can prevent incurring further expenses by submitting a Support request for disablement of Customer’s account including the desired disablement date. If Customer continues to use the Services following expiration of the then current SOW Term (other than as permitted under Section 14.6) without a new SOW in place, such Services will continue to be available pursuant to Evolution Global’s standard terms and pricing will be calculated and invoiced in accordance with the pricing on the Pricing Page. No such continued use permitted beyond expiration of an SOW shall be construed to extend the SOW Term nor preclude Evolution Global from suspending or terminating Customer’s access to the Services at any time following expiration of the SOW.  Evolution Global reserves the right to provide notice of non-renewal 60 days before the end of any SOW Term.

9.1. Confidential Information

In connection with the Agreement, both parties may disclose to each other, or learn or have access to, certain confidential proprietary information about such disclosing party or its affiliates, business partners or clients that is not readily available to the general public (“Confidential Information”).  Confidential Information includes, but is not limited to, any data or information, oral or written, that relates to the disclosing party or any of the disclosing party's business, marketing and financial data; technology; professional facts; information regarding any products, concepts, developments, tools, websites, software, applications and databases used by the disclosing party; vendor and supplier information; pricing and rates; passwords and account information; marketing methods, strategies, and plans; professional or personal contacts; client and potential client lists, files and information; information regarding purchase history, inventory and sales figures; any and all proprietary processes, skills and knowledge; collaboration and referral information; company, officer, director, employee and contractor information and data; trade secrets; expertise, know-how, processes; ideas; photos, images, designs, charts, calculations, presentations, blue prints; and any and all other technical, business, financial and development plans, forecasts, strategies and information related to the disclosing party or any of its past, current or future clients, employees and/or contractors.  Confidential Information also includes the terms of this Agreement and the applicable Statement of Work.  Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party's possession free of any confidentiality obligations with respect thereto; (v) is independently developed by the receiving party without use of any Confidential Information; or (vi) is approved for release or disclosure by the disclosing party in writing without restriction.

9.2. Restrictions on Use and Disclosure

The Recipient shall use at least the same degree of care that it uses to protect its own similar confidential information (but not less than reasonable care) to: (a) use the Discloser’s Confidential Information only as permitted under this Agreement, unless Discloser has provided prior written consent for other uses, and (b) only disclose the Discloser’s Confidential Information to Recipient’s, or its Affiliates’, employees, partners, contractors (including legal counsel and accountants), and service providers (“Representatives”) who (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Recipient shall be responsible for any breach of these obligations by its Representatives to the same extent it is responsible for its own breaches.  To the limited extent any use or disclosure is required by Applicable Law or a valid and binding order of a governmental body (such as a subpoena or court order), the Recipient may disclose only that portion of the Discloser’s Confidential Information that it is required to disclose upon the advice of its counsel, provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information.  In the event of any breach or threatened breach by the Recipient of its obligations under this Section 9.2, the Discloser will be entitled to seek injunctive and other equitable relief in any court of competent jurisdiction to enforce such obligations.  

9.3. Not withstanding Section 9.1 above, Provider may disclose Customer’s name and any business, marketing and financial data for marketing purposes.  In addition, the receiving party may disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that receiving party gives reasonable prior notice to the disclosing party to contest such order or requirement.  Upon the termination or expiration of this Agreement, the receiving party shall return to the disclosing party, or certify the destruction of, all Confidential Information.

10.1. Customer Responsibilities

Customer will be solely responsible for: (a) Customer’s Environment, including as necessary to enable Authorized Users’ access and use of the Services; (b) Account Data, Customer Data and Customer Credentials (including activities conducted with Customer Credentials), subject to Evolution Global’s obligations under this Agreement; (c) providing any required notices to, and receiving any required consents and authorizations from, Customer Component providers, Authorized Users and persons whose Personal Data may be included in Account Data, Customer Data or Customer Credentials; and (d) ensuring use of the Services is only for Customer’s Environment and in accordance with the AUP, Documentation and applicable Customer Component Terms.

10.2. Customer Systems and Cooperation

Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.

10.3. Effect of Customer Failure or Delay

Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).‌  

10.4. Corrective Action and Notice

If Customer becomes aware of any actual or threatened activity prohibited by Section 10.6, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.

10.5. Non-Solicitation; Non-Circumvention

Unless otherwise agreed in writing, during the term of the Agreement and for a period of eighteen (18) months following the termination of the Agreement, Customer agrees not to (a) solicit, cause, induce, or encourage, or attempt to solicit, cause or induce or encourage, any employee or contractor of Provider to leave his or her employment or engagement with Provider; (b) solicit, cause, induce, or encourage, or attempt to solicit, cause or induce or encourage, any employee of Provider to abandon, withdraw, or lessen its relationship with Provider; or (c) solicit, cause, induce, or encourage, or attempt to solicit, cause or induce or encourage, any Person (including, without limitation, any of Provider’s vendors, suppliers, contractors, etc.) or other customer of Provider to abandon, withdraw, or lessen its relationship with Provider.

10.6. Customer Use Restrictions

No provision of this Agreement includes the right to, and Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the foregoing, Customer shall not, except as this Agreement expressly permits:

(a) enable any person or entity other than Authorized Users to access and use the Services;  

(b) attempt to gain unauthorized access to any Service or its related systems or networks;  

(c) use any Service to access Evolution Global Intellectual Property Rights except as permitted under this Agreement;  

(d) modify, copy or create any derivative work based upon a Service or any portion, feature or function of a Service;  

(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or
Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, other technology or service, including as part of a managed services offering;  

(f) reverse engineer, disassemble, decompile all or any portion of, decode, adapt, or attempt to access, discover or recreate the source code of the Services or Provider Materials, in whole or in part;  

(g) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;  

(h) input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;  

(i) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider’s provision of services to any third party, in whole or in part;  

(j) access or use the Services or Documentation for the purpose of competing (or enabling others to compete) with Evolution Global, including copying ideas, features, functions or graphics, developing competing products or services, or performing competitive analyses;  

(k) remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;  

(l) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;

(m) use the Services to send or store Malicious Code;  

(n) use software or bots to pull information from our system;  

(o) use or permit others to use the Services in violation of any laws; or  

(p) use or permit others to use the Services other than for Customer’s operations and as described in the applicable SOW, Documentation and this Agreement.

10.7. Evolution Global Remedies

In the event Evolution Global reasonably believes a violation of Section 8.2 has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 11.2), Evolution Global will have the right to investigate the suspected violation and suspend any individually identified Authorized User(s) who are suspected of the violation from accessing the Services for so long as is reasonably necessary to address the potential violation. Evolution Global will notify Customer in writing of any such suspension (each, a “Suspension Notice”) and work with Customer in good faith to resolve the potential violation. Such Suspension Notice will be provided in advance, unless Evolution Global reasonably believes the suspected violation creates an urgent or emergency situation where a failure to take immediate action may put Evolution Global, Customer, or other Evolution Global customers at risk of imminent harm. For clarity, Evolution Global reserves the right, but does not assume any obligation to Customer (except with respect to the Suspension Notice), to take any of the actions described in this Section 8.3.

11.1. Provider Materials

All right, title, and interest in and to the Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 10.6. All other rights in and to the Provider Materials are expressly reserved by the Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

11.2. Customer Data

As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 11.3.

11.3. License from Customer

Customer hereby grants Provider a royalty-free, limited, non-exclusive right, authorization and license to use the name, logos, trademarks, copyrights and related intellectual property of Customer, its Authorized Users, or its licensors, solely as necessary to fulfill the purposes contemplated in this Agreement. Provider may also use Customer’s name, logos and/or trademarks for limited marketing purposes on its lists of clients.

12.1. Mutual Warranties. Each party represents and warrants to the other party that:

12.1.1. it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
12.1.2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;  
12.1.3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and  
‍12.1.4. when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.‌

12.2. Evolution Global Warranties

Evolution Global warrants that during the applicable SOW Term: (a) Evolution Global will not materially decrease the overall security of the Services; (b) the Services will perform in accordance with the Documentation in all material respects; and (c) Evolution Global will not materially decrease the overall functionality of the Services.

12.3. Additional Customer Representations, Warranties, and Covenants

Customer represents, warrants and covenants to Provider that: (i) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law; and (ii) Customer and its Authorized Users will remain in compliance with all applicable laws and regulations with respect to its and their activities related to this Agreement, including but not limited to privacy laws.  Customer and each of its Authorized Users agree to comply with all of Provider’s policies and all laws, rules and regulations relating to the use of Provider Materials and Hardware. Any violation of this section may result in loss of features, up to and including termination of Customer’s account. Customer will indemnify Provider for any costs, fines or damages incurred by Provider due to Customer's or its Authorized User's failure to comply with this section.

12.4. NO IMPLIED WARRANTIES

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

12.5. AS-IS

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL SERVICES, SUPPORT AND ANY OTHER MATERIAL ARE PROVIDED BY EVOLUTION GLOBAL ON AN “AS IS” AND “AS AVAILABLE” BASIS. EVOLUTION GLOBAL MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, EXCEPT WITH RESPECT TO THE SERVICES AND SOLELY TO THE EXTENT SET FORTH UNDER THIS AGREEMENT. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 12, EVOLUTION GLOBAL MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DOCUMENTATION, OR ANY OTHER MATERIAL, OR RESULTS OF THE USE THEREOF, WILL: (a) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE ERROR FREE OR (e) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH CUSTOMER COMPONENTS. ANY CHANGES TO CUSTOMER ENVIRONMENT, CUSTOMER COMPONENTS, OR CONNECTIONS (INCLUDING THEIR UNAVAILABILITY) OR CUSTOMER COMPONENT TERMS DURING AN SOW TERM DO NOT AFFECT CUSTOMER’S OBLIGATIONS UNDER THE APPLICABLE SOW OR THIS AGREEMENT.

12.6. Condition of Provider Materials

Customer should examine all Provider Material for possible defects (whether digital or otherwise) before proceeding with use thereof. For the avoidance of doubt, Provider shall not be liable for any loss or damage suffered by Customer or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Provider Material or its caption or in any way from its reproduction and/or distribution.

Each Party agrees to comply with all Applicable Laws with respect to its performance of its obligations and exercise of its rights under this Agreement. Without limiting the foregoing:

13.1. Anti-Bribery and Anti-Corruption

Each Party shall comply with Applicable Laws concerning anti-bribery and anti-corruption, which may include the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. As of the Effective Date and the date of each SOW, each Party represents that it has neither received nor been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any employee, agent or representative of the other Party or its Affiliates in connection with this Agreement. Each Party agrees to promptly notify the other Party if it learns of any violation of the foregoing. This representation is not intended to include customary and reasonable gifts and entertainment provided in the ordinary course of business, to the extent such gifts and entertainment are permitted by Applicable Law.

13.2. Export Controls and Economic Sanctions

14.1. Term

The term of this Agreement will continue for 90 days past the expiration or earlier termination of the last SOW to be in effect.

14.2. Termination for Cause  

Evolution Global may terminate any SOW upon written notice to Customer if Customer fails to pay any amount due under the SOW that is not disputed in good faith in accordance with Section 7.2, and such failure continues more than 15 days after Evolution Global’s delivery of written notice. Either Party may terminate all SOWs and this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach. In addition, either Party may terminate all SOWs and this Agreement, effective on written notice to the other Party, in the event that the other Party (i) becomes insolvent, enters into bankruptcy or any similar financial reorganization or legally binds itself to any such reorganization or (ii) makes any assignment of its rights or assets for the benefit of its creditors.  

14.3. Effect of Termination

Upon expiration or earlier termination of an SOW: (a) subject to Section 14.5, all rights granted to Customer with respect to Services under such SOW will terminate effective as of the effective date of termination; (b) subject to Section 14.6 Evolution Global will have no obligation to provide the applicable Services to Customer or Authorized Users after the effective date of the termination; (c) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (d)   Customer shall immediately cease all use of any Services or Provider Materials; (e)  Provider shall disable all Customer and Authorized User access to the Provider Materials; (f)  if Provider terminates this Agreement pursuant to Section 2.7 or Section 14.2, subject to Section 7.2 (Payment Disputes) all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Provider’s final invoice; and (g)  if Customer requests in writing at least ten (10) days prior to the effective date of termination,  Provider shall, within thirty (30) days following such termination, deliver to Customer the then most recent version of Customer Data maintained by Provider, provided that Customer has at that time paid all Fees and Reimbursable Expenses then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees for Provider’s services in transferring such Customer Data.  Provider shall have no duty to maintain data after 30 days without a valid Agreement to do so in place.

14.4. Suspension

Provider may suspend Customer’s access to the Provider Materials immediately without notice if Provider, in its sole discretion, believes: (i) such suspension is required by law; (2) Customer has breached this Agreement and has not remedied such breach within fifteen (15) days of receiving notice of the alleged breach from Provider; or (3) there is a security of privacy risk to Customer.  Any suspension of the Customer’s access to the Provider Materials will not limit or waiver Provider’s rights to terminate this Agreement of Customer’s access to the Provider Materials.

14.5. Payments at Termination

If an SOW is terminated early by Customer pursuant to Section 14.1 or by Evolution Global pursuant to Section 14.2 (a) Customer shall not be obligated to pay any amounts specified in the SOW for Services not yet provided and (b) Evolution Global will refund to Customer a pro rata share of any unused amounts prepaid by Customer under the applicable SOW for the Services (a “Pro-Rated Refund”). In all other cases, and regardless of whether Customer uses the Services at the levels reflected in the SOWs or otherwise, Customer will not be entitled to a refund of Fees paid and any committed Fees for the full term of the SOW(s) and any Fees accrued beyond any committed Fees based on Customer’s use of the Services prior to termination will become immediately due and payable.

14.6. Post-Termination Access

Provided Customer has paid all amounts due under this Agreement, and subject to any applicable shorter Service Plan retention periods, for up to 30 days from the effective date of termination of this Agreement or an applicable SOW, an Authorized User designated by Customer will be permitted to continue to access and download Customer Data that was accessible to Authorized Users through the Services immediately prior to termination. The designated Authorized User’s access and use will continue to be subject to the terms of this Agreement, provided the Authorized User shall not access or use the Services other than to download Customer Data. Any post-termination use of the Services except as authorized in this Section 14.6 shall be subject to the pricing on the Pricing Page. Customer Data post termination will be deleted in the ordinary course, but in no event will be retained beyond the applicable Service Plan retention period. Customer may request earlier deletion of Customer Data by submitting an organization deletion request to support@evolution.global.

14.7. Survival

The provisions set forth in the following Sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 1 (Definitions), 2.8 (Data), 7 (Pricing and Fees), 9 (Confidentiality), 10 (Customer Restrictions), 14 (Term and Termination), 15 (Indemnification), 16 (Limitations of Liability), 18 (Notices), and 23 (Governing Law; Venue).

15.1. Evolution Global Indemnity

Subject to Sections 15.2 and 15.4, Evolution Global agrees to defend Customer, its Affiliates, and their respective employees, officers and directors (collectively, “Customer Indemnitees”), against any claim, demand, suit, or proceeding (“Action”) made or brought against Customer Indemnitees by a third party alleging use of the Services as permitted under this Agreement infringes such third party’s Intellectual Property Rights (each, a “Customer Claim”) and Evolution Global will indemnify Customer Indemnitees from any damages, costs, and expenses (collectively, “Losses”) finally awarded against Customer Indemnitees as a result of, or for amounts paid by Customer Indemnitees under a settlement approved by Evolution Global in writing for, a Customer Claim.

15.2. Infringement Remedies

If the Services become, or in Evolution Global’s opinion are likely to become, the subject of a Customer Claim, Evolution Global may in its discretion and at its own expense: (a) obtain for Customer the right to continue using the Services; (b) modify the Services so that they no longer infringe or misappropriate, with no material decrease in functionality; or, if neither (a) or (b) are commercially reasonable, (c) terminate the SOW solely with respect to the specific Services affected and issue a Pro-Rated Refund for amounts connected to the affected Services. Evolution Global will have no obligation to defend or indemnify Customer Indemnitees for any Customer Claim to the extent an Action arises from any of the following (collectively, “Customer-Controlled Matters”): (i) Customer’s Environment; (ii) Account Data, Customer Data or Customer Credentials (including activities conducted with Customer Credentials), subject to Evolution Global’s Processing obligations under this Agreement; or (iii) use of the Services by Customer or an Authorized User in a manner that breaches an SOW, Service Plan or this Agreement. EVOLUTION GLOBAL’S OBLIGATIONS IN SECTIONS 15.1 AND 15.2 STATE CUSTOMER’S EXCLUSIVE REMEDIES AND EVOLUTION GLOBAL’S ENTIRE LIABILITY FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION.

15.3. Customer Indemnity

Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or result from, or are alleged to arise out of or result from, or relating to Customer-Controlled Matters, and Customer will indemnify Evolution Global Indemnitees from any Losses finally awarded against Evolution Global Indemnitees as a result of, or for amounts paid by Evolution Global Indemnitees under a settlement approved by Customer in writing, for any Action against the Evolution Global Indemnitees arising out of or relating to Customer-Controlled Matters, or alleged to arise out of or result from:

15.3.1. Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
15.3.2. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
15.3.3. allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
‍15.3.4. negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.‌

15.4. Indemnification Procedures

A Customer Indemnitee or Evolution Global Indemnitee (each, an “Indemnitee”) seeking indemnification shall promptly notify the other Party (each, an “Indemnifying Party”), in writing of any Action for which it seeks indemnification pursuant to Section 15 (as applicable) and reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party shall promptly take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s expense. An Indemnitee may participate in and observe the proceedings on a monitoring, non-controlling basis at its own expense with counsel of its own choice. A Party’s failure to perform any obligations under this Section 15.4 will not relieve the Indemnifying Party of its obligations under Section 15.1 or 15.3 (as applicable) except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnifying Party shall not settle an Action without the Indemnitee’s written consent if such settlement shall require action or payment by the Indemnitee.

16.1. EXCLUSIONS AND LIMITATIONS

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 16, (A) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; (B) IN NO EVENT SHALL EVOLUTION GLOBAL, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY PERMITTED TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; AND (C) IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO EVOLUTION GLOBAL BY OR ON BEHALF OF CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY UNDER THE APPLICABLE SOW(S), INCLUDING PRIOR SOWS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  ADDITIONALLY, PROVIDER HAS NO OBLIGATION OR LIABILITY FOR (A) ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA OR (B) FOR LOSS OF INTERNET OR AN OUTAGE.  THE PROVISIONS OF THIS SECTION 13 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT AND THE PRICING FOR THE SERVICES.

16.2.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, PROVIDER’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THIS AGREEMENT, THE SERVICES OR PROVIDER MATERIALS SHALL IN NO EVENT EXCEED THE FEES PROVIDER RECEIVED HEREUNDER FROM CUSTOMER DURING THE ONE HUNDRED EIGHTY (180) DAY PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES FOR THE PORTION OF THE SERVICES OR PROVIDER MATERIALS GIVING RISE TO LIABILITY.

16.3.

Nothing in this Agreement shall limit either party’s liability for any liability which cannot be excluded or limited by law.

16.4.

The parties agree and acknowledge that this Agreement, including all related Schedules and Exhibits, states the parties’ entire liability of whatever type or nature to each other.

16.5.

A party’s liability under this Agreement will be proportionately reduced to the extent the other party, its officers, employees, agents and contractors contribute to any loss, damage, expenses, liabilities and costs (including legal costs).

16.6. Exceptions

The exclusions and limitations in 16.1 shall not apply to: (i) a Party’s gross negligence, willful misconduct, or fraud in relation to this Agreement; (ii) a Party’s indemnification obligations under Section 15; (iii) Customer’s breach of Section 10.6; or (iv) Customer’s payment obligations to Evolution Global under this Agreement.

Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party.   With prior written consent, Evolution Global may include Customer’s name and logo in its lists of Evolution Global customers, its public website and other promotional material, in each case in accordance with any Customer brand guidelines to the extent available to Evolution Global. Evolution Global agrees to cease such uses of Customer’s name and logo within 30 days following Customer’s request submitted at support@evolution.global.