This Agreement between Estate Valuations & Pricing Systems, Inc., also known as EVP Systems, Inc., a California Corporation located at 1531 Chapala Street, #1, Santa Barbara, California 93101 hereinafter referred to as “EVP and/or Licensor” and the users of its software and services, including subsidiaries and affiliates, hereinafter referred to as the “Licensee”.
PURPOSE OF AGREEMENT
1. The purpose of this Agreement is to state the terms and conditions under which Licensee may use proprietary software designed by the Licensor and owned by the Licensor to access the equipment of the Licensor to retrieve historical pricing data of corporate securities, stocks and bonds on historical databases.
SERVICES PROVIDED
2. Licensor shall provide Licensee with software known as EstateValTM, GiftValTM, CostBasisTM and CapWatchTM to allow Licensee to obtain historical pricing data using their own computer systems with data imputed through their own systems to the equipment of EVP. It is understood that Licensee shall input the data request and the product receipt upon their own computers and that the evaluations returned are to be obtained from historical databases which render Licensor’s good faith opinion of values as to what historically buyers in the marketplace have paid for the securities particularly in an institutional round lot position in a historic sale and/or historic closing prices. Evaluations are determined based upon proprietary models and methodologies using inputs such as trade, bids, and other relevant market data contained in historical databases. Evaluations do not represent an offer to purchase or sell any security or any other instrument or are said evaluations intended to be any representation of present value.
Licensor is not providing computer programming or information storage other than such records that are necessary for billing purposes as set forth in the EVP Fee Schedule. Licensor may agree to provide consulting services on site where the software is being used upon the request of Licensee. Consulting services shall be the subject of a separately negotiated agreement between the parties.
PROPERTY OF LICENSOR
3. All rights, title, and interest in and to the Software, including any updates, enhancements, modifications and derivative works thereof and any written procedures or other supporting items used in the operations performed by the Licensee, are and shall remain the exclusive property of the Licensor. Licensee acknowledges that it acquires no ownership rights in the Software by virtue of this Agreement. Licensee shall not remove, alter, or obscure any proprietary notices, labels, or marks on the Software.
Licensee agrees to take all necessary steps to protect Licensor’s proprietary rights in the Software and to notify Licensor promptly of any infringement or unauthorized use of the Software that comes to Licensee’s attention. Any feedback, suggestions, or improvements provided by Licensee regarding the Software shall be the sole property of Licensor. In the event that the rights to use the interface programs are terminated, the Software shall be returned to the Licensor.
TERM OF AGREEMENT
4. This Agreement is effective on the date the Licensee agrees to its terms and is to remain in full force and effect until terminated as hereinafter provided. The Licensee agrees to the terms of this Agreement when an authorized agent for the Licensee installs the Licensor’s software. Either party may in its discretion, terminate this Agreement at the end of any calendar month by giving the other party at least thirty (30) days prior written notice of termination. Licensee may terminate this Agreement on the effective date of any change of the terms or conditions of this Agreement. Either party may terminate this Agreement for cause if the other party breaches any material term or condition of this Agreement and fails to cure such breach within fifteen (15) days after receiving written notice thereof.
CHARGES
5. Licensee in consideration of the rights to use the software above-referenced agrees to pay to Licensor, any charges (fees and discounts) as set forth in the EVP Fee Schedule which details the agreed charges for the retrieval of historical prices of securities and are subject to change. The EVP Fee Schedule can be found on the Licensor’s website at evpsys.com (https://evpsys.com/account/fees). The Company reserves the right to modify the EVP Fee Schedule at its discretion. Any changes to the EVP Fee Schedule will be communicated to the Licensee in writing at least thirty (30) days prior to the effective date of such changes. The updated EVP Fee Schedule will be made available on the Company’s website or provided upon request. Continued use of the services after the effective date of the changes will constitute acceptance of the new fees.
Payment for the usage of the software shall be due immediately upon receipt of invoice. Payment shall be made in US dollars, in full without any offset, unless otherwise specified in writing by Licensor.
In the event that any payment is not received by Licensor within fifteen (15) days of the invoice date, Licensor reserves the right to charge interest on the overdue amount at the rate of 2% per month, calculated daily, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Licensee shall also be responsible for all costs of collection, including reasonable attorney’s fees, incurred by Licensor in collecting any overdue amounts. The Licensor shall provide updates and modifications to the software as modifications to the software are made at no cost to the Licensee and shall provide any corrections to the software in the event that a correction is found to be necessary.
All fees are non-refundable, except as otherwise expressly provided in this Agreement.
TAXES
6. Licensee shall be responsible for all taxes, duties, and other governmental charges (collectively, “Taxes”) imposed in connection with the fees paid under this Agreement, excluding taxes based on Licensor’s net income. If Licensor is required to pay any Taxes for which Licensee is responsible, Licensee shall reimburse Licensor for such Taxes within thirty (30) days of receiving an invoice from Licensor. Licensee shall provide Licensor with any applicable tax exemption certificates or other documentation to reduce or eliminate Taxes.
CHARGES, TERMS AND CONDITIONS SUBJECT TO CHANGE
7. All charges, terms and conditions contained in this Agreement are subject to change by EVP upon thirty (30) days prior written notice to the effective date of such changes. Subject to Licensee’s power to terminate this Agreement, such as charges, terms and conditions shall become effective on their effective date as designated in the notice.
ERROR CORRECTION
8. If Licensee notifies EVP that the services provided by this Agreement and the software do not operate as set forth in the then current version of EVP’s provided software, EVP will endeavor to correct any malfunctions in said services or software at no charge to the Licensee. EVP shall maintain a customer service desk at all times during the term of this Agreement to provide technical support or information necessary to maintain the systems and shall respond to the Licensee within a twenty-four hour period from the time of notification on Mondays through Fridays of each week (legal holidays excepted).
WARRANTIES, LIMITATIONS AND LIABILITY
9. EVP is providing the information of historical data based upon historical databases which the Licensee believes to be accurate. EVP however, makes no other warranties, expressed, implied, or statutory, including but not limited to the implied warranties of fitness for a particular purpose and merchantability. EVP shall not be liable for any loss or damage claimed to have resulted from the use of the software to retrieve historical data regardless of the form of action except for direct use or damage resulting from the gross negligence of EVP. In no event shall EVP be liable for any special, indirect, incidental, consequential, or punitive damages, including but not limited to loss of profits, data, or use, incurred by Licensee or any third party, whether in an action in contract, tort, or otherwise, arising from or related to this Agreement, even if Licensor has been advised of the possibility of such damages. EVP shall not be responsible for any claim that arose more than one year prior to the institution of suit therefore or any claim arising for causes beyond EVP’s reasonable control. Licensee’s exclusive remedy and EVP’s entire liability for any and all causes, whether for negligence, breach of contract, warranty or otherwise shall in the aggregate not exceed six months average billing to Licensee taken over the twelve (12) months preceding a month in which the damage or injury is alleged to have occurred. If this Agreement has not been in effect for twelve months preceding such date then over such fewer number of preceding months that this Agreement has been in effect.
Protection of confidential or proprietary programs and information, EVP shall treat as confidential and shall not knowingly copy or duplicate other than for emergency back-up and in the normal course of performing processing on EVP’s computers or knowingly disclose to any person or organization any confidential information which is submitted by Licensee for processing. To ensure confidentiality, Licensee agrees that it shall not submit the names of any of Licensee’s clients for whom said information is requested. Licensee acknowledges that all printing of information from the computers of EVP shall be on their own printers and they acknowledge that EVP does not copy anything which has been submitted by Licensee.
Licensee agrees to use software solely for its own internal uses and benefit and not resale. In the event that Licensee sells, transfers, or disposes of or otherwise permits use of the software by or for the benefit of any other person or organization, Licensee shall indemnify, defend, and hold harmless Licensor from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorney’s fees, arising out of or in any way connected with Licensee’s use of the software, violation of this Agreement, or infringement of any intellectual property or other right of any third party .
Licensee acknowledges that the databases, computer programs and other information furnished to Licensee by EVP as part of the services and software constitutes usage of copyrighted trade secret or proprietary information of substantial value to EVP or some other person or organization affiliated with EVP. Licensee agrees that it shall not divulge or permit any other employees or agent to divulge any proprietary information to any person or organization except as expressly permitted hereunder. Without limited the foregoing, Licensee agrees for itself and its employees and agents 1) to use the programs and databases solely on their computers and solely in accordance with EVP’s applicable user documentation, 2) to refrain from knowingly copying or divulging in any other way than in the normal course of performing processing or interfacing with EVP’s computers proprietary information, 3) to refrain from knowingly obtaining unauthorized access to any programs, data or other information not owned by Licensee and if such access is accidentally obtained to respect and safeguard the same as proprietary information, 4) to honor reasonable written requests made by EVP to protect, at EVP’s expense, the rights of EVP and third parties and proprietary information at common law under the Federal Copyright statute and under other Federal and State statutes.
Licensee agrees that it shall not attempt to reverse engineer or to use the source codes of the software provided.
COMPLIANCE WITH STATE AND FEDERAL LAWS
10. Both parties agree to comply with all applicable federal, state, and local laws, regulations, and ordinances in the performance of their obligations under this Agreement. Licensee shall be responsible for ensuring that its use of the Software complies with all applicable laws and regulations, including but not limited to data protection and privacy laws. Licensor shall comply with all laws applicable to its provision of the Software and related services.
In the event that any provision of this Agreement conflicts with any applicable law, such provision shall be deemed modified to conform to the minimum requirements of such law. Both parties agree to cooperate in good faith to amend this Agreement to reflect any changes in applicable laws and regulations.
ENTIRETY OF AGREEMENT AND PARTIAL INVALIDITY
11. This Agreement shall be governed by the laws of the State of California. The venue of any litigation involving this contract is agreed to be Santa Barbara County, California. This constitutes the entire Agreement between the parties with respect to the subject matter hereof. No amendment or modification of this Agreement shall be binding unless in writing and signed by both parties.
If any provision of this contract is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the minimum extent necessary to make it enforceable, and the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired in any way. If such modification is not possible, the invalid, illegal, or unenforceable provision shall be deemed severed from this Agreement, and the remaining provisions shall continue in full force and effect.
This Agreement is entered into by each party to this Agreement on the date the Licensee agrees to its terms. The Licensee agrees to the terms of this Agreement when an authorized agent for the Licensee installs the Licensor’s software.
EVP Fee Schedule
Fees for EVP Office and EVP Professional Services are included in the EVP Fee Schedule which can be found on the Licensor’s website at evpsys.com (https://evpsys.com/account/fees). The EVP Fee Schedule also includes the EVP Discount Schedule.
Last updated: January 1, 2025