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General Evisions Terms & Conditions are below. Final terms & conditions, including business terms such as price, subscription term length, etc., will be negotiated directly with Evisions in subsequent discussions.
SOFTWARE SERVICE AGREEMENT
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (“General Terms”) will become part of the final Agreement between Customer and Evisions for the right to access and use the Products.
Defined terms not set forth below have the meanings set forth where first defined in the body of this Agreement. As used in this Agreement, the following terms shall have the following meanings:
1.1 “Effective Date” means the Agreement Effective Date set forth on the Signature Page to this Agreement.
1.2 “Enhancements” shall have the meaning set forth in Section 3.2.
1.3 “Hosting Facility” means the facility and equipment used to host the Products and through which the Service is provided.
1.4 “Product(s)” means the specific Evisions software module or modules checked in the Business Terms, or on an applicable invoice, and made available to Customer through the Service.
1.5 “Consultants” means the Evisions representatives implementing the Professional Services with Customer.
1.6 “Customer Data” means all Customer content, data and other information provided by Customer and stored, accessed or managed using the Products.
1.7 “Customer Affiliate” means an entity with which the Customer has a formal affiliation agreement.
1.8 “Professional Services” means work provided by Consultants pursuant to a SOW.
1.9 “Service” means the provision of one or more Products to Customer through the Hosting Facility under the terms of this Agreement, including any Associated Services selected in the Business Terms of the final Agreement.
1.10 “Service Fee” means all fees charged for use of the Products, including the Subscription Fee set forth in the Business Terms, and any initial and annual fees for Associated Service(s) selected in the Business Terms of the final Agreement.
1.11 “SOW” means a statement of work for Professional Services.
1.12 “Working Pilot” means a Customer-accessible Product that delivers all or substantially all the functionality agreed to in an SOW.
1.13 “Usage Data” means all data and information in the nature of system administrative data, statistical and demographical data, and operational information and data generated by or characterizing the use of the Products and Evisions services.
2. Use of the Service.
2.1 Evisions agrees to provide to Customer the Service on the terms and conditions set forth herein. As part of the Service, Evisions will license access and use of the Products to Customer. Specifically, Evisions grants Customer unlimited access and use of the Products by staff, faculty, students, contractors and Customer Affiliates (together, “Authorized Users”) working at, with or for Customer. Under this Agreement, Customer may not make the Products available to any other entities, institutions or other third parties beyond the Authorized Users.
2.2 Customer acknowledges that the Products contain trade secrets and confidential information of Evisions and its licensors. Customer shall take reasonable steps to prevent disclosure of the features and functions of the Products to unauthorized third parties.
2.3 All right, title and interest in the Products shall remain in Evisions and its licensors. Customer may not access the object code or source code of the Products without Evisions’ prior written consent and Customer may not duplicate, modify, adapt, translate, reverse engineer, decompile, disassemble or create derivative works based upon the Products.
2.4 Customer may not assign its rights under this Agreement to a third party.
2.5 Evisions may, with seven (7) days written notice to Customer, suspend availability of or use of all or any portion of the Products at any time if Evisions should reasonably determine that Customer is in material breach of Sections 2.1-2.4 of this Agreement. Any failure of Customer to timely make any required payment to Evisions will allow Evisions to suspend the subscription if not cured within thirty (30) days of written notification.
3. Maintenance and Support.
3.1 Evisions will be responsible for maintaining the Service and Products and providing technical support according to the terms and conditions set forth on Schedule A to this Agreement.
3.2 During the Term of this Agreement, Evisions shall provide Enhancements to the Products and associated user documentation at no additional charge to Customer. For purposes of this Section 3.2, “Enhancements” shall consist of updates, error corrections and minor modifications to the Products which Evisions develops and makes available to its customers generally. Except as provided in Section 3.3, Evisions shall not be required to develop any specific Enhancement under this Agreement. New products or services developed by Evisions and released under different names or agreements shall not be considered Enhancements, and Customer shall not be entitled to receive such new products or services unless the parties execute a separate written agreement.
3.3 During the Term of this Agreement, Evisions shall make commercially reasonable efforts to either correct or provide a suitable workaround for any error in the Service or Products which comes to Evisions’ attention and which materially impairs use. For the purposes of this Agreement, an error is a failure of the Service or Products to perform as set forth in this Agreement or in any user documentation provided to Customer. Customer shall notify Evisions of any errors it finds in accordance with Evisions’ then current reporting procedures and Evisions has the right to confirm the error before initiating a fix by replicating it or confirming it through other troubleshooting procedures. If the error is material to the operation of the Service or Products and Evisions is unable to fix the error after making commercially reasonable efforts as set forth herein, then Evisions has the right to terminate this Agreement and refund the pro rata portion of the fees for the unused portion of the Term.
3.4 Customer hereby grants Evisions use of the Customer Data solely to the extent required to solve technical support problems or to perform maintenance services under this Agreement. Evisions agrees that Customer Data may contain confidential information and intellectual property of Customer and/or its contractors. Evisions agrees that it shall take all reasonable precautions necessary to keep Customer content secure and Evisions will not use (other than as may be needed to perform technical support and maintenance services) or disclose any Customer Data without the express written permission of Customer.
3.5 Upon notice to and approval by Customer, which approval shall not unreasonably be withheld, Evisions may subcontract to a third party or parties any and all tasks or services to be provided under this Agreement and Evisions may sublicense to such third party or parties the rights licensed to Evisions pursuant to Section 3.4 for the sole purpose of enabling such parties to host, support, deliver, enhance or maintain the Hosting Facility and the Products. In the event Evisions subcontracts for the delivery of any such services, Evisions shall remain responsible to Customer in accordance with the terms of this Agreement and impose restrictions and obligations on any such third party comparable to the restrictions and obligations imposed on Evisions hereunder.
4. Customer Responsibility.
4.1 Customer shall provide Evisions with such information as may be reasonably requested by Evisions to enable Evisions to duplicate any failure of the Service or Products to function in accordance with Evisions’ specifications therefore.
4.2 Customer shall provide Evisions with the names, telephone numbers and email addresses of Customer’s technical contacts authorized to receive communications related to the Service or Products. Evisions shall communicate only with these authorized individuals for discussions of a technical nature. Customer shall immediately notify Evisions of any change in the name, telephone number or email address of the maintenance services coordinator or alternate.
4.3 As between Evisions and Customer, Customer agrees that it is solely responsible for and assumes all its own liability relating to:
4.3.1 The substance of Customer Data;
4.3.2 Decisions about Customer’s own computer, software and communications systems used or needed to use the Service or Products;
4.3.3 All results obtained from using the Service or Products in conformance with its operating instructions and user documentation;
4.3.5 Compliance with all applicable laws and governmental regulations regarding use of the Service and Products;
4.3.6 Creating and maintaining password security for persons who are permitted to use the Service and Products; and
4.3.7 Imposing Customer’s policies on all permitted users to ensure that their use of the Service and Products will not violate laws or governmental regulations, infringe on the rights of others, or violate the terms of this Agreement.
5. Term and Termination.
5.1 The Agreement Term will be set forth in the Business Terms of the final Agreement.
5.2 Evisions may terminate this Agreement for Customer’s material breach hereof, including a failure to pay any undisputed amounts owing under this Agreement, if Customer fails to cure such breach within thirty (30) days after written notice from Evisions specifying the breach.
5.3 Customer may terminate this Agreement for Evisions’ breach hereof including but not limited to those arising out of Section 3 - Maintenance and Support - if Evisions fails to cure such breach within thirty (30) days after written notice from Customer specifying the breach.
5.4 Upon termination for Evisions’ breach pursuant to Section 5.3, Evisions shall refund to Customer a proportional amount of any payments already made by Customer corresponding to the time remaining under the Agreement. Upon termination, any outstanding SOWs will also terminate unless the parties expressly agree in writing to continue the Professional Services pursuant to the SOW.
5.5 The provisions contained in this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive such termination or expiration. Notwithstanding the foregoing, Section 2.1 shall not survive termination or expiration of this Agreement.
6. Limited Warranty.
6.1 Evisions warrants that the Service and Products will meet the specifications set forth in Evisions’ related documentation.
6.2 Evisions warrants that the maintenance and support services provided by Evisions pursuant to Section 3 of this Agreement will be of professional quality.
6.3. Evisions warrants that it owns, and/or otherwise has the legal right to provide to Customer the use of the Products and the Service as described herein.
6.4 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR OBLIGATIONS, EXPRESS OR IMPLIED. ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT ARE HEREBY DISCLAIMED. EXCEPT AS SET FORTH IN THIS SECTION 6, THE ENTIRE RISK ASSOCIATED WITH USE OF THE PRODUCTS IS ASSUMED BY CUSTOMER.
7. Limitation of Liability.
7.1 IN NO EVENT SHALL EVISIONS’ LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY CUSTOMER TO EVISIONS FOR THE SERVICE FOR THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY COMMENCES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER BASED ON CONTRACT, WARRANTY, BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER TORT, CONTRIBUTION OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 If a third party infringement claim is asserted in relation to the Service or Products, or if Evisions believes such a claim is likely to be asserted, Evisions may at its option and expense either: (a) replace or modify the Products or alter the Service so that it becomes non-infringing; or (b) procure for Customer the right to continue using the Products and Service. If neither of the foregoing alternatives is reasonably available, Evisions may terminate availability of the Service and/or Products and, in such event, Evisions shall refund to Customer a proportional amount of the fees paid therefore.
8. Customer Indemnification.
Customer will indemnify and hold Evisions harmless from and against any and all expenses, losses, damages or liabilities (including reasonable attorney fees) arising out of or relating to any third party claims, demands, or suits arising from or relating to Customer Data, Customer’s misuse or abuse of the Service and Products.
9. Proprietary Rights Ownership.
9.1 Customer shall retain ownership of all of its right, title and interest to the Customer Data (subject to the limited right of Evisions to host and use the Customer Data for provision of the Service) and shall retain ownership of all other inventions, processes, original works of authorship, know-how, trade secrets, and any intellectual property rights in any of the foregoing which are developed or acquired by Customer. Evisions and its licensors shall retain ownership of all right, title and interest to the Products and Service (subject to the subscription right of Customer hereunder) and shall retain ownership of all other inventions, processes, original works of authorship, know-how, trade secrets, and any intellectual property rights in any of the foregoing which are developed or acquired by Evisions.
9.2 All Usage Data are owned exclusively by Evisions. Evisions may make any legal use of such Usage Data without notifying Customer or sharing such Usage Data with Customer. Specifically, Evisions may publish and share Usage Data with others in aggregate or statistical form to promote the Products and services of Evisions and for evaluating the efficiency, utility and functionality of the Products and Evisions services. Evisions, however, agrees that no Usage Data will be disclosed to others in any way that would identify the Customer, its personnel or disclose any Customer Data, unless approved by Customer in writing or unless such Usage Data is provided to a third party who is under agreement with Evisions to protect and limit the use of such Usage Data as provided in this Agreement.
10.1 This Agreement, including any attached exhibit, addendum, schedule, SOW, or supplement, contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements related to such subject matter. In the event of a conflict between the terms of this Agreement and any related exhibit, addendum, schedule, purchase order, or supplement, the terms of this Agreement shall prevail; provided, that in the event of a conflict between the terms of this Agreement and an SOW, the terms of the SOW shall prevail to the minimum extent necessary to resolve the conflict. No modification or waiver of any of the provisions, or any future representation, promise, or addition, shall be binding upon the parties unless made in writing and signed by both parties.
10.2 No waiver by either party of any of its rights under this Agreement shall be deemed to be a waiver of any future right under this Agreement.
10.3 A party to this Agreement (“Affected Party”) shall not be liable to the other party for default or delay in the performance of any of the Affected Party’s obligations hereunder (except for the obligation to pay money) due to act of God, act of terrorism, accident, fire, flood, storm, or other act of nature, riot, war, sabotage, explosion, national defense requirement, governmental law, ordinance, rule or regulation, or any contingency beyond the reasonable control of the Affected Party that would make performance commercially impracticable.
10.4 The parties are independent contractors. Nothing contained herein shall create any partnership, joint venture, employment, agency or fiduciary relationship between the parties.
10.5 The individual terms of this Agreement are severable. If any term, condition, covenant, restriction or other provision of this Agreement, except for a provision relating to the payment of money, is held void, invalid, illegal or unenforceable by a final judgment or decree of any court, commission or other judicial or quasi-judicial body of competent jurisdiction, this Agreement shall remain in force and effect in all other respects as if such provision had not been included in this Agreement. If a provision relating to the payment of money is held void by a final judgment or decree of any court, commission or other judicial or quasi-judicial body of competent jurisdiction, this Agreement may be terminated immediately by Evisions upon giving written notice to Customer.
10.6 Nothing in this Agreement shall be construed, interpreted or asserted against any party on the basis that all or part of this Agreement was written or proposed by that party.
10.7 Captions are inserted for convenience of reference only and shall not affect the construction and interpretation of this Agreement.
10.8 Any notice or report hereunder shall be deemed given if delivered or sent by first class mail, postage prepaid, addressed to the other party at the address set forth above, or at such other address as designated by the party by written notice, or by confirmed courier or facsimile with a confirmation report showing successful delivery. If notice is given by mail and the notice affects other parties’ rights hereunder, the effective date of the notice shall be seven (7) days after the date of mailing or the date the notice is received, whichever is earlier.
10.9 The parties agree that all disputes between them shall first be submitted for informal resolution to their respective chief operating officers, or duly appointed representatives. Any remaining disputes shall be submitted to arbitration before one arbitrator in Orange County, California. The proceedings shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall include a written explanation of the decision, shall be limited to remedies otherwise available in court and shall be binding upon the parties and enforceable in any court of competent jurisdiction. The prevailing party’s legal costs shall be paid by the opposing party. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD CAUSE THE LAWS OF ANY OTHER JURISDICTION TO APPLY.
SCHEDULE A: MAINTENANCE AND SUPPORT POLICY
During the Term of this Agreement, Evisions shall provide standard technical support for Authorized Users (as defined in section 2.1 of the General Terms) for the Service and Products during normal business hours. Any requests for support must be made by the parties specified in Section 4.2. Evisions shall make available applications and technical staff to assist with questions about the Service and Products and to assist Customer in solving any problems. The Evisions technician responding to Customer’s inquiry will be experienced, technically competent, and familiar with the Service and Products. Client shall submit a help desk request through Evisions’ website, with verifiable and reproducible evidence of problem, questions, or requests for assistance. Upon receipt of a help desk request, Evisions shall respond by email to acknowledge receipt of the request based on the priority status Client notes on the request.
i) Urgent – Production Down. Reserved for issues when the production environment is down. Evisions will respond within one (1) hour from the time the request is received (during business hours or within one (1) hour of opening if the request is not received during business hours).
ii) High – Production Critical. Reserved for issues when the production environment is threatened, but not actually down. Evisions will respond the same day the request is received (if the request is received by 4:00 pm Pacific Time of any day the help desk is open or, if received later, the next business day).
iii) Medium – Time Sensitive. Evisions will respond within 24 hours of the time the request is received, excluding in the computation of such 24 hours any days outside of normal business hours. (For example, if such a request is received at 1:00 pm on a Friday, Evisions will respond by 1:00 pm on the following Monday, if such Monday is within normal business hours.)
iv) Low – Non Essential Timeline. Evisions will respond within 48 hours of the time the request is received, excluding in the computation of such 48 hours any days during which the help desk is not open. (For example, if such a request is received at 1:00 pm on a Friday, Evisions will respond by 1:00 pm on the following Tuesday, if neither such Tuesday nor the preceding Monday is outside of normal business hours.)
Evisions may undertake scheduled maintenance of the Service or the Products during time periods designated by Evisions. Evisions will provide Customer with no less than 48 hours prior electronic mail or other notice of any scheduled maintenance that is likely to make the Products inaccessible or unusable and will only perform this type of scheduled maintenance outside of normal business hours.
Each Product or Service has a specific amount of annual support hours available with the payment of the subscription fees as stated in the Business Terms of the final Agreement. The Evisions Support Team can provide the amount specific to any Product owned upon request.
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