This End User Agreement ("EUA"), effective as of the date that the Party uses the services herein, is entered into by and between Entsecure South East Asia Pte. Ltd., a company incorporated in Singapore whose registered office is at 68 Circular Road #02-01 Singapore 049422, hereinafter referred to as “Evren” and the entity or individual(s), as applicable and as defined by the scope of the licence offer using the Evren’s software and services (“Customer”), shall continue in full force and effect until such time as it is terminated per the terms of this EUA. Evren and Customer may separately be referred to as a “Party” or together as the “Parties”.
This EUA, and any modifications or subsequent versions entered into by, shall govern the provision of, access to, and use by Customer of, Evren’s software, associated data, files, information, online or electronic documentation, media and any other Evren service applicable thereto (collectively, “Service”).
1.1. Assent to be Bound. Customer agrees to be bound by the terms of this EUA, and acknowledges that Customer is entering into a legally binding contract, by one or more of the following methods: (a) executing this EUA; (b) clicking to accept or agree where this option is made available to Customer; or (c) by actually using the Service. Customer should print or save a copy of this EUA for Customer’s records. If Customer does not agree with any part of this EUA, Customer is not authorised to access or use the Service and must stop using the Service.
1.2. No Removal of Notices. Customer shall not remove, overprint, or deface any notice of copyright, trademark, logo, or other notices of ownership that Evren has in or to the Service, whether such notice is affixed on, contained in or otherwise connected to any materials associated with the Service.
1.3. No Publishing. Customer shall not publish any results or benchmark tests run on any Service to a third party without Evren’s prior written approval.
1.4. Non-Evren Providers. Evren or third parties may make available third-party products or services, including, for example, Non-Evren Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any non-Evren provider, product or service is solely between Customer and the applicable non-Evren provider. Evren does not warrant or support Non-Evren Applications or other non- Evren products or services, unless expressly provided otherwise in an Order Form. If Customer chooses to use a Non-Evren Application with a Service, Customer grants Evren permission to allow Non-Evren Application and its provider to access Customer Data as required for the interoperation of that Non-Evren Application with the Service. Evren is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Evren Application or its provider.
1.5. Publicity. During the Term, Customer grants Evren a revocable, non-exclusive, worldwide, royalty-free licence to use and display its name, trademarks, trade names, service marks, symbols, signs, slogans, logos or other markings or names owned or associated with the Customer (collectively, “Marks”) for press releases, public marketing materials, case studies, blog posts, and other marketing-related activities.
2.1. Lawful Purposes. Customer shall not (i) use the Service in violation of applicable Laws; (ii) send or store Malicious Code in connection with the Service; (iii) interfere with or disrupt performance of the Service or the data contained therein; (iv) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation; (v) copy a Service or any part, feature, function or user interface thereof; (vi) access any Service in order to build a competitive product or service or to benchmark with a non-Evren product or service; or (vii) reverse engineer any Service (to the extent such restriction is permitted by law).
2.2. Representations and Warranties. Customer represents and warrants that Customer is authorised to enter into and comply with the terms of this EUA. Furthermore, Customer represents that Customer shall, at all times, comply with Customer’s obligations as set forth in this EUA, as well as all applicable Laws in connection with Customer’s use of the Service.
2.3. Indemnification by Customer. Customer will defend Evren against any claim, demand, suit or proceeding made or brought against Evren by a third party alleging that any Customer Data infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Service in breach of this EUA, the Documentation, Order Form or applicable Law (each a “Claim Against Evren”), and will indemnify Evren from any damages, attorney fees and costs finally awarded against Evren as a result of, or for any amounts paid by Evren under a settlement approved by Customer in writing of, a Claim Against Evren, provided Evren (a) promptly gives Customer written notice of the Claim Against Evren, (b) gives Customer sole control of the defence and settlement of the Claim Against Evren (except that Customer may not settle any Claim Against Evren unless it unconditionally releases Evren of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
3.1. Ownership and Reservation of Rights. Evren and its licensors own all right, title and interest in and to the Service and the Documentation, and all Intellectual Property Rights therein. Subject to the limited rights expressly granted hereunder, Evren reserves all rights, title and interest in and to the Service and Documentation including all related Intellectual Property Rights. No Intellectual Property Rights are granted to Customer hereunder other than as expressly set forth herein.
3.2. Grant of Rights. Evren hereby grants Customer (for itself and those of Customer’s Affiliates and Authorised Parties for whom Customer enables access to the Service) a non-exclusive, non-transferable, right to use the Service and Documentation, solely for internal business purposes of Customer and its Affiliates and solely during the Term, subject to the terms and conditions of this EUA and in accordance with the relevant Order Form.
3.3. Usage Restrictions. Customer shall not (i) modify or copy the Service or Documentation or create any derivative works based on the Service or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorised Parties as permitted herein; (iii) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to, any software utilised by Evren in the provision of the Service and Documentation, except to the extent permitted by law; (iv) access the Service or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.
4.1. Confidentiality. A party shall not disclose or use any Confidential Information of the other party except to those of its Affiliates, officers, agents, employees, contractors, consultants and financial and legal advisors who have a need to know such Confidential Information as reasonably necessary to perform its obligations or exercise its rights pursuant to this EUA or with the other party’s prior written permissions.
4.2. Protection. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
4.3. Exclusions. Confidential Information shall not include any information that: (i) is or generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party to the other party; (iii) was independently developed by a party without breach of any obligation owed to other party; (iv) is received from a third party without breach of any obligation owed to the other party. Customer Data shall not be subject to the exclusions set forth in this clause.
5.1. Disclaimer of Warranties. Except as expressly provided herein and to the maximum extent permitted by applicable Law, Evren makes no warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose with respect to the Service and/or related Documentation. Evren does not warrant that the Service will be error free or uninterrupted. The limited warranties provided herein are the sole and exclusive warranties provided to Paid Customer in connection with the provision of the Service.
5.2. Limited Warranties (Paid Customer). Evren warrants that during the Term (i) the Service shall perform materially in accordance with the Documentation; (ii) functionality of the Service will not be materially decreased during the Term; (iii) to the best of its knowledge, the Service does not contain any Malicious Code. Evren further warrants that it will not knowingly introduce any Malicious Code into the Service. For any breach of a warranty above, Customer’s exclusive remedies are those described in the clause 6.3 and clause 6.5 below.
5.3. Limitation of Liability. Without limiting the limitation of liability provisions contained in the applicable MSA, Customer acknowledges and agrees that Evren, its Affiliates, licensors and employees will have no liability in connection with or arising from Customer’s use of the Service. Without limiting the foregoing, in no event will either party or its Affiliates have any liability arising out of or related to this EUA for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its Affiliates have been advised of the possibility of such damages or if a party’s or its Affiliates’ remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
6.1. Term of EUA. This EUA commences when Customer assents it electronically or installs Evren’s software or uses the Service, and continues until all the subscriptions hereunder have expired or have been terminated.
6.2. Term of Subscriptions. The term of each subscription shall be specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year, whichever is shorter, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Evren’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Service has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
6.3. Termination (Paid Customer). A party may terminate this EUA and the applicable Master Service Agreement (“MSA”) for cause (i) upon thirty (30) days written notice to other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.4. Termination (Non-paid Customer). Evren may, in its sole discretion, at any time and for any or no reason, suspend or terminate this EUA with or without prior notice. This EUA will terminate immediately, without prior notice from Evren, in the event that Non-paid Customer fails to comply with any provision of this EUA. Non-paid Customer may also terminate this EUA by deleting Evren’s software in Customer’s possession and ceasing the use of the Service.
6.5. Refund or Payment upon Termination. If this EUA and the applicable MSA are terminated by Customer in accordance with the clause 6.3 above, Evren will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this EUA and the applicable MSA are terminated by Evren in accordance with the clause 6.3 above, Customer will pay unpaid fees covering the remainder of the term of all Order Forms. In no event will terminate relieve Customer of its obligation to pay any fees payable to Evren for the period prior to the effective date of termination.
6.6. Surviving Provisions. The clauses titled “Indemnification by Customer,” “Proprietary Rights,” “Confidentiality,” “Disclaimer of Warranties,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Surviving Provisions” and “Miscellaneous” will survive any termination or expiration of this EUA.
7.1. Definitions. In addition to the terms of this EUA, the following terms have the following meanings:
7.1.1. “Affiliate” of a party shall mean and include any entity or association controlled by, controlling or under common control with such party and for the purposes of this definition, “Control” is deemed to exist if a party directly or indirectly owns 50% or more of the voting shares in another company or in any way can exercise management control over the other party.
7.1.2. “Authorised Party” means Customer’s or an authorised Affiliate’s employees and third party providers authorised to use the Service solely for the benefit of Customer as an end user, in accordance with this EUA and the applicable MSA and Order Form.
7.1.3. “Confidential Information” means (a) any software utilities by Evren in the provision of the Service and its respective source code; (b) Customer Data; (c) each party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (d) pricing or cost information.
7.1.4. “Customer Data” means the electronic data or information submitted by Customer or Authorised Parties to the Service. Customer Data may particularly comprise anonymous device usage, system error, crash reports and device health. Customer Data will not include personal data that relates to an identified or identifiable natural person.
7.1.5. “Documentation” means Evren’s electronic documentation centre (currently being hosted at support.evren.co) for the Service which may be updated by Evren from time to time.
7.1.6. “Intellectual Property Rights” means any patent, copyright, trade name, trade mark, trade secret, know-how, object code, source code, or any other intellectual property right or proprietary right whether registered or unregistered, and whether now known or hereafter recognised in any jurisdiction.
7.1.7. “Law” means any local, state, national and/or foreign law, treaties and/or regulations applicable to a respective party.
7.1.8. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
7.1.9. “Non-Evren Application” means a web-based, mobile, offline or other software application functionality that is provided by Customer or a third-party.
7.1.10. “Order Form” means the separate ordering documents under which Customer subscribes to the Service pursuant to this EUA that have been fully executed by parties.
7.1.11. “Term” shall have the meaning set out in Clause 6.1.
7.2. Entire Agreement and Order of Precedence. This EUA, including the applicable MSA and all Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and extinguishes all prior and contemporaneous agreements, promises, assurances, proposals, warranties, representations or undertakings, whether written or oral, concerning or relating to its subject matter. Notwithstanding any language to the contrary herein, no terms and conditions stated in Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this agreement. In the event of a conflict with the MSA, this EUA shall take precedence unless otherwise stated to the contrary herein or in the MSA. In the event of a conflict, the provisions of an Order Form shall take precedence over provisions of this EUA.
7.3. Waiver. No failure or delay by either party in exercising any right under this EUA shall constitute a waiver of that right or any other right.
7.4. Relationship of the Parties. The parties are independent contractors. This EUA does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this EUA.
7.5. Notices. All notices under this EUA shall be in writing and shall be deemed to have been given upon: (i) personal delivery or (ii) the third business day after being sent by pre-paid recorded post. Notices to Evren shall be sent to the address shown in the introductory paragraph of this EUA addressed to the attention of the Legal Department with a copy by email sent to firstname.lastname@example.org. Legal notices to Customer will be sent to the addresses given at the time that Customer registers for access to the Service, unless Customer notifies Evren by emailing email@example.com of any applicable address change.
7.6. Force Majeure. Neither party shall be liable for any failure or delay in performance under this EUA for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other industrial action (other than those involving Evren or Customer employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service or telecommunications provider (a “Force Majeure Event”), but in each case, only if and to the extent that the non-performing party is without fault in causing such a failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. The party affected by the Force Majeure Event shall (a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this EUA; and (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
7.7. Governing Law and Jurisdiction. This EUA, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of Singapore, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in Singapore will have exclusive jurisdiction over any dispute relating to this EUA, and each party consents to the exclusive jurisdictions of those courts.
7.8. Severability. If any provision of this EUA is held by a court of competent jurisdiction to be invalid, illegal, contrary to law or unenforceable, the provision shall be modified by the court to the extent necessary and interpreted so as best to accomplish the objectives of the original position to the fullest extent permitted by law, and the remaining provisions of this EUA shall remain in effect. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
7.9. Headings. The headings in this EUA are for convenience only and shall not affect the construction hereof.
CUSTOMER EXPRESSLY ACKNOWLEDGES THAT CUSTOMER HAS READ THIS EUA AND UNDERSTANDS THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY ASSENTING TO THIS EUA BY THE MANNER SPECIFIED ABOVE, INCLUDING USE OF THE SUBJECT SERVICE CUSTOMER EXPRESSLY CONSENTS TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANTS TO EVREN THE RIGHTS SET FORTH HEREIN.
Version Date: 1 Sep 2022.