THIS SERVICE AGREEMENT (“SA”) is between the customer who subscribes the Services (“Customer”) and Evolink AD (“EVOLINK”) located in 16V Barzaritsa Str, Sofia, Bulgaria.
Customer’s use of and access to the Services shall be governed by this SA and Service Level Agreement (collectively referred to as the “Agreement”).
This Agreement is the complete and exclusive agreement between Customer and EVOLINK regarding its subject matter and supersedes and replaces any agreement, understanding, or communication between Customer and EVOLINK, whether written or oral, prior or contemporaneous regarding such subject matter.
BY CHOOSING THE “ACCEPT” OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THIS SA MAY BE DISPLAYED, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS SA AND/OR THE AGREEMENT.
- DEFINED TERMS. The following words used in this SA have the following meanings:
“Account Information” means the Account Information as defined in Section 5.1 below.
“EVOLINK WAF Website” means a site enabling Customer to subscribe the Services subject to the terms and conditions of the Agreement.
“Business Day” means 9:00 a.m. – 6:00 p.m. Monday through Friday in EET time excluding public holidays in the Republic of Bulgaria.
“EVOLINK’s Confidential Information” means log records, reports and/or benchmarking information disclosed or made available by EVOLINK to Customer for the purpose of provision of the Services.
“Customer” means an individual or entity who agrees to the terms of the Agreement for the purpose of use of the Services.
“Customer Content” means the Customer Content as defined in Section 5.4 below.
“Heavy Traffic” means a state exceeding the limit as set forth in the Payment Plan submitted by Customer when Customer subscribes the Services.
“Payment Plan” means a payment plan submitted by Customer to EVOLINK at the time of Customer’s subscription of the Services or and upgraded plan selected at later stage during the use of the service.
“Provisional Period” means a period which needs for completion of Rerouting Traffic by Customer as set forth in Section 5.5.
“Personal Information” or “PI” means the information pertaining to an individual alive, which contains information identifying a specific person with a name, a government identification number or similar in a form of code, letter, voice, sound, image, or any other form (including information that does not, by itself, make it possible to identify a specific person but that enables to identify such person easily if combined with another information).
“Services” mean ‘EVOLINK WAF‘ service powered by Cloudbric, provided to Customer pursuant to the Agreement.
“SLA Credits” mean the credits for applicable qualifying Loss of Services as described in the Service Level Agreement.
“Service Level Agreement” means the Service Level Agreement which is located at the EVOLINK WAF Website.
“Third Party Services” mean services which are provided by any third parties directly to Customer. The definition of the Services does not include Third Party Services.
“EVOLINK WAF” means a service detecting and blocking hackings attempted against web applications on World Wide Web environment powered by the technology of Penta Security Systems Corporation (“PENTA”) located in 6220 WESTPARK SUITE 222, HOUSTON, TX, USA.
- EVOLINK’S OBLIGATIONS.
2.1 Provision of Services. Upon Customer’s acceptance of the Agreement by choosing the “AGREE” on the screen of the EVOLINK WAF Website, EVOLINK agrees to provide the Services. EVOLINK may change, discontinue, add, modify, re-price or remove features or functionality from the Services.
- USE OF AND ACCESS TO THE SERVICE.
4.1 Subscription Right. Subject to the terms and conditions of this Agreement, for the duration of the term of this Agreement, EVOLINK hereby grants Customer a non-exclusive, non-transferable, non-sublicenseable, revocable right to use and access the Services for internal purposes. Customer may access to the Services and any upgrades, if applicable, to such Services through the EVOLINK WAF Website. EVOLINK may modify the Services at any time.
4.2 Resale of Services. Customer shall not be permitted to resell the Services to Customer’s customers and end users nor third parties without the EVOLINK’s prior written consent.
- CUSTOMER OBLIGATIONS AND REPRESENTATIONS AND WARRANTIES.
When the Customer experiences the problems to access to the Services, the Customer at its own judgment and risk to proceed with the bypass of the Services (“Bypass by Customer”), and EVOLINK shall not be liable for any damages and/or loss arising from the Bypass by Customer.
5.2 Representations and Warranties. Customer represents and warrants it has the full power and authority to enter into this Agreement and to grant EVOLINK the rights granted herein. Customer represents and warrants that it does not and shall not violate or infringe any laws and/or any intellectual property right of any third party. Customer represents and warrants that it has maintained and maintains the confidentiality and privacy of the personally identifiable information and/or any private information of its customers and end users in strictly confidential manner in full compliance with any relevant laws and regulations, in particular, related to preservation and protection of privacy and security.
5.3 Confidentiality. Customer agrees not to use EVOLINK’s Confidential Information except in connection with Customer’s authorized use of the Services. Customer agrees not to disclose EVOLINK’s Confidential Information to any third person or party for a period of [five (5) years] following the termination or expiration of this Agreement except where the EVOLINK’s Confidential Information: (i) was in Customer’s possession prior to receipt from EVOLINK; (ii) is publicly known or readily ascertainable by proper means; (iii) is rightfully received by Customer from a third party without a duty of confidentiality; (iv) is disclosed by EVOLINK to a third party without a duty of confidentiality on the third party; (v) is independently developed or learned by Customer; or (vi) is disclosed by Customer with EVOLINK’s prior written approval. Customer will provide reasonable prior notice to EVOLINK and will request a protective order if Customer is required to reveal the EVOLINK’s Confidential Information under a subpoena, court order or other operation of law. Customer shall promptly return the EVOLINK’s Confidential Information at the EVOLINK’s request. Upon a breach of this Confidentiality obligation by Customer, Customer shall compensate damages of 6 times of monthly fees paid by Customer to EVOLINK to subscribe the Services as liquidated damages to EVOLINK.
5.4 Customer Content. Customer agrees that EVOLINK may cache on its servers documents, information and/or any content and/or meta data contained in the Customer’s site and/or trafficked to the Customer’s site (“Customer Content”), including without limitation reroute the Customer Content and all traffic directed to the Customer’s site to another EVOLINK designated IP address, for the purpose of enabling the provision of the Services. Customer hereby grants EVOLINK a nonexclusive, worldwide, fully paid-up, royalty-free license to use, host, transfer, display, make available to the public, modify certain elements of the Customer Content and otherwise exploit the Customer Content, in any media formats, solely for the purpose of enabling the provision of the Services. Such license will apply to any form, media, or technology now known or hereafter developed. Customer hereby warrants and represents that: (i) Customer is the sole owner of and/or holds all rights in and to the Customer Content; (ii) there are no restrictions, limitations which prevent or restrict Customer from granting EVOLINK the license above; and (iii) the Customer Content will not: (a) facilitate or promote illegal activity, or contain content that is illegal; (b) contain content, material or information that is defamatory, obscene, distasteful, racially or ethnically offensive, harassing, or that is discriminatory based upon race, gender, color, creed, age, sexual orientation, or disability; (c) contain sexually suggestive or explicit content; (d) infringe upon or violate any right of any third party; (e) disparage, defame, or discredit EVOLINK or any third person; or (f) otherwise contain content that violates any laws, rules, regulations or policies of any competent jurisdiction. EVOLINK may disallow the use of the Services when content is flagged or blocked at EVOLINK’s sole discretion without any prior notice. Customer will have no complaint, claim or demand towards EVOLINK regarding the deletion, blocking or removal of content Customer created, contributed to or used.
EVOLINK does not warrant that it will maintain a back-up copy of the Account Information saved to the EVOLINK WAF Website. EVOLINK does not provide a back-up service to Customer, and Customer shall keep a copy of the Account Information on Customer’s site for back-up purposes.
- FEES AND TAXES.
6.1 Fees. Customer agrees to pay the fees charged by EVOLINK and comply with the payment procedure and terms to be provided by EVOLINK.
6.2 Taxes. Unless otherwise stated, fees do not include any direct or indirect local or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added taxes or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its use of the Services.
- INTELLECTUAL PROPERTY.
7.1 Ownership of Services and EVOLINK WAF Website. Customer hereby acknowledges and agrees that EVOLINK along with its partner Penta Security Systems Corporation (“PENTA”) located in 6220 WESTPARK SUITE 222, HOUSTON, TX, USA owns all legal right, title and interest in and to the EVOLINK WAF Website and the Services provided by EVOLINK, including, without limitation, any and all patent rights, copyright rights, trademark rights, trade secret rights and all other intellectual property and proprietary rights embodied therein, which subsist in the EVOLINK WAF Website and the Services.
7.2 Trademarks. Customer hereby grants and agrees to grant to EVOLINK a non-exclusive, irrevocable, worldwide, royalty-free, fully paid-up license to use Customer’s trademarks, marks, logos or trade names in connection with EVOLINK’s provision of the Services. The license granted in this Section 7.2 includes the right of EVOLINK to sublicense its subsidiaries and affiliates and any third parties providing all or part of the Services on behalf of EVOLINK to achieve the foregoing.
- TERM, SUSPENSION AND TERMINATION.
8.1 Term. The term of this Agreement shall commence on the date that Customer first accepts the Agreement and shall continue for thirty (30) days. It automatically renews for successive 30-day terms unless otherwise terminated as provided in this Section 8. Customer is hereby granted the option not to renew the Agreement for an [additional thirty (30) day] term (“extended term”) provided that notice of exercise of said option shall be given by Customer to EVOLINK at least [seven (7) days] prior to the expiration of the then existing term. Any revised or modified terms and conditions of the Agreement shall be applicable to the extended term.
8.2 Suspension. EVOLINK may suspend provision of the Services to Customer without liability if: (i) EVOLINK reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of this Agreement; (ii) Customer does not cooperate with EVOLINK’s investigation of any suspected violation of this Agreement; (iii) EVOLINK believes that the Services provided to Customer have been accessed or manipulated by a third party without Customer’s consent or in violation of this Agreement; (iv) EVOLINK reasonably believes that suspension of the Services is necessary to protect the EVOLINK WAF Website or EVOLINK’s other customers; (v) a payment for the Services is overdue by more than [thirty (30) days]; (vi) the continued use of the Services by the Customer may adversely impact the Services or the systems or content of EVOLINK or any other EVOLINK customer; (vii) EVOLINK reasonably believes that the use of the Services by Customer may expose EVOLINK, its subsidiaries and affiliates to liability; or (viii) suspension is required by law or (ix) EVOLINK believes that the Customer causes the Heavy Traffic. EVOLINK will give Customer reasonable advance notice of a suspension under this Section 8.2 and a chance to cure the grounds on which the suspension are based, unless EVOLINK determines, in EVOLINK’s reasonable commercial judgment, that either suspension on shorter or contemporaneous notice or immediate suspension without notice is necessary to protect EVOLINK, its subsidiaries and affiliates or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body. If the suspension was based on Customer’s breach of Customer’s obligations under this Agreement, then EVOLINK may continue to charge Customer the fees for the Services during the suspension, and may charge Customer a reasonable reinstatement fee upon reinstatement of the Services, which shall be at EVOLINK’s sole discretion.
8.3 Blocking. EVOLINK may block the access to the Customer’s site by Customer and/or its customers and end users without liability if the data used by Customer in a given month exceeds such data which Customer has promised to use in the Payment Plan of Customer submitted to EVOLINK when subscribes the Services. If the blocking has occurred, Customer may be able to use the Services only when Customer makes additional payments to EVOLINK for subscription of the Services.
8.4 Termination for Convenience. Customer may terminate this Agreement for convenience at any time. If Customer terminates this Agreement for convenience, Customer shall pay EVOLINK all amounts that would be due within [forty-five (45) days] after such termination.
8.5 Termination for Breach. EVOLINK may terminate this Agreement if: (i) EVOLINK discovers that the information Customer provided to EVOLINK about Customer’s proposed use of the Services was materially inaccurate or incomplete; (ii) if Customer is an individual and was not at least 18 years old or otherwise did not have the legal capacity to enter into this Agreement at the time Customer accepted the Agreement, or if Customer is an entity, the individual accepting the Agreement for the use of the Services for Customer did not have the legal right or authority to enter into this Agreement on behalf of Customer; (iii) Customer payment of any invoiced amount is overdue, and Customer does not pay the undisputed overdue amount within [thirty (30) days] of EVOLINK’s proper notice; (v) Customer uses the Services in violation of this Agreement and, in EVOLINK’s reasonable commercial judgment, termination is necessary to protect EVOLINK, its subsidiaries and affiliates or its other customers from operational, security, or other risk; (v) Customer’s account has been suspended for [thirty (30) days] or more; or (vi) Customer fails to comply with any other provision of this Agreement and does not remedy the failure within [thirty (30) days] of EVOLINK’s notice to Customer describing the failure. EVOLINK will give Customer proper notice of termination under this Section 8.5 unless EVOLINK determines, in EVOLINK’s reasonable commercial judgment, that immediate termination without notice is necessary to protect EVOLINK, its subsidiaries and affiliates or its other customers from operational, security, or other risk. Customer may terminate this Agreement for breach upon written notice to EVOLINK if EVOLINK materially fails to meet any other obligation stated in this Agreement and does not remedy that failure within thirty (30) days of Customer’s written notice describing the failure.
8.6 Effect of Termination. Upon expiration or termination of this Agreement, Customer must discontinue use of the Services and relinquish use of any materials provided to Customer by EVOLINK in connection with the Services. Customer must also return or, at EVOLINK’s request, destroy any portion of the Services in Customer’s possession. EVOLINK will have no obligation to provide any transition services.
- UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES, THE EVOLINK WAF WEBSITE AND/OR THE CUSTOMER’S WEBSITE.
9.1 EVOLINK is not responsible to Customer for unauthorized access to the Services or the unauthorized use of the Services, the EVOLINK WAF Website and/or the Customer’s site by a third party.
9.2 Upon occurrence of leakage of the PI of the Customer’s customers and users and/or unauthorized access to the Services and/or Customer’s site (“Accident”), the Parties agree to proceed with the following conciliation process.
- The Customer shall immediately notify EVOLINK of such Accident in writingwithin [seven (7) days] from occurrence of the Accident. Such notice shall be made in a form provided by EVOLINK including the full description of the Accident and any relevant information if available.
- Upon its receipt of such notice, EVOLINK shall have the preliminary investigative right on the Accident which includes the right to request the Customer to deliver and/or provide any relevant information concerning the Accident to EVOLINK. The Customer shall be required to fully cooperate on such preliminary investigation by EVOLINK. However, if even in the absence of a notice related to the Accident from Customer, EVOLINK has known the occurrence of the Accident and/or has a good reason to believe that the Accident has occurred, EVOLINK at its discretion shall be entitled to exercise the preliminary investigative right on the Accident which includes the right to request the Customer to deliver and/or provide any relevant information concerning the Accident. The Customer shall be required to fully cooperate on such preliminary investigation by EVOLINK.
- After completion of the preliminary investigationas above, EVOLINK has a right to make its determination on the cause of the Accident and makes such determination available to the Customer within [seven (7) days] from the EVOLINK’s determination above.The EVOLINK’s determination shall be final and binding.
- EVOLINK shall not be liable to the Accident occurred during the Provisional Period.
- DISCLAIMER OF WARRANTIES. Unless otherwise promised by EVOLINK herein, EVOLINK does not promise that the Services will be uninterrupted, error-free, or completely secure. Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of the Customer’s privacy, confidential information, and/or other property. Also, there is no legal liability issues caused by a web-seal. EVOLINK has no obligation to provide security other than as stated in this Agreement. To the extent permitted by law, EVOLINK disclaims any and all warranties, statutory or otherwise, not expressly stated in this Agreement, including the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement. Customer is solely responsible for the suitability of the services chosen. The Services are provided “AS IS”.
- INDEMNIFICATION. If EVOLINK, EVOLINK employees, agents, affiliates, subsidiaries, or suppliers (the “EVOLINK Indemnitees”) are faced with a legal claim by a third party arising out of the Customer’s actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by this Agreement, misappropriation or infringement of a third party’s intellectual property right, or violation of this Agreement (“Third Party Claim”), then Customer will pay the cost of defending the claim (including reasonable attorney fees) and any damages, award, fine, settlement, or other amount (“Losses”) that is imposed on the EVOLINK Indemnitees as a result of the claim. Customer will hold EVOLINK harmless from and against any and all Losses arising out of or in connection with any Third Party Claim. Customer’s obligations under this Section 11 include claims arising out of the acts or omissions of Customer employees, any other person to whom Customer has given access to the Services, and any person who gains access to the Services, as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer.
In connection with any Third Party Claims pursuant to this Section 11, EVOLINK will (i) give Customer prompt written notice of such claim; and (ii) cooperate reasonably with Customer, at Customer’s expense, in providing information in connection with Customer’s payment of the defense of such claim and Losses arising out of such claim.
- DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT AS REQUIRED BY LAW IN NO EVENT SHALL EVOLINK BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF, OR DAMAGE TO, DATA OR CUSTOMER CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF EVOLINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- LIMITATION OF LIABILITY. EXCEPT AS REQUIRED BY LAW EVOLINK SHALL NOT BE LIABLE TO CUSTOMER FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE CLOUDBRIC WEBSITE OR THE SERVICES. IF, NOTWITHSTANDING THE FOREGOING, EVOLINK IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THE SERVICES, EVOLINK’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES [FOR THE SIX MONTHS] PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO EVOLINK’S LIABILITY.
- ALLOCATION OF LIABILITY. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THE AGREEMENT AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH EVOLINK WOULD NOT HAVE ENTERED INTO THISAGREEMENT. EVOLINK’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.
15.1 Changes to the Agreement. EVOLINK may modify this Agreement at EVOLINK’s sole discretion. Any such modified Agreement shall be posted or linked to EVOLINK WAF Website or as provided in Section 15.2 below. Any such changes made during the term of this Agreement will become effective upon commencement of the extended term.
15.2 Notices. Customer routine communications regarding the Services shall be sent to the address as designated below. Moreover, if Customer wants to give EVOLINK a notice regarding termination of this Agreement for breach, indemnification, or other non-routine legal matter, Customer shall send it by electronic mail and/orair mail to the address as designated below.
16V Barzaritsa str, Sofia 1618, Bulgaria, Attn.: Evolink WAF service
EVOLINK’s routine communications regarding the Services and legal notices will be sent through the EVOLINK WAF Website. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English or Bulgarian language.
15.3 Assignment/Subcontractors. Customer may not assign Customer rights and/or delegate Customer obligations under this Agreement without EVOLINK’s prior written consent. This Agreement will be binding on and inure to the benefit of Customer’s and EVOLINK’s respective permitted successors and permitted assigns. However, EVOLINKwith its own reasonable judgment may use third party service providers or any affiliate or subsidiary to perform all or any part of the Services.
15.4 Force Majeure. Neither EVOLINK nor Customer will be in violation of this Agreement if the failure to perform the obligation is due to an event beyond either party’s control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15.5 Governing Law and Jurisdiction. This Agreement is governed by the laws of the Republic of Bulgaria.
15.6 Relationship of the Parties. The parties’ relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.