Revision Date: April 5, 2018
You acknowledge that the Services may be made by (i) certain of Company’s subsidiaries and affiliates; and/or (ii) independent third-party providers. The Services comprise marketing applications and related services (each, an “Application”), which enable users to attract more customers.
This Website is offered and available to users who are 18 years of age or older. By using this Website, you represent and warrant that you are of legal age to form a binding contract with Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.
3. Accessing the Website and Account Security
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
You are responsible for:
- Making all arrangements necessary for you to have access to the Website.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You are solely responsible for maintaining the confidentiality of your password and account, and you are solely responsible for all use of your password or account, whether authorized by you or not. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the terms of this Agreement. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
“Authorized Users” shall mean employees of Subscriber authorized by Subscriber to access the Services for the purposes of business management pursuant to the terms and conditions of this Agreement.
You shall not (i) license, grant, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way; (ii) copy, reverse engineer, modify or reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or make derivative works based upon the Services; (iii) create Internet “links” to the Services or “frame” or “mirror” any Services; (iv) bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid Access Credentials; (v) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; or (vi) access or use the Services 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.
If you have opted in to receive special offers from Company via email, or otherwise, you can unsubscribe via the links provided in the email at any time or by contacting us at [email protected]. By opting in to receive special offers from us, you consent to receiving, from time to time, text messages or emails which may include alerts, promotions, offers, polls, and giveaways.
4. Intellectual Property Rights
The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
- If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
You must not:
- Modify copies of any materials from this Website.
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this Website.
You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.
If you wish to make any use of material on the Website other than that set out in this section, please address your request to: [email protected].
The Company name, the terms, Company logo, and all related names, logos, product and service names, designs, slogans are trademarks of Company or its affiliates or licensors. You must not use such marks without the prior written permission of Company. All other names, logos, product and service names, designs, and slogans on this Website are trademarks of their respective owners.
6. Prohibited Uses
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
- To impersonate or attempt to impersonate Company, a Company employee, another user, or any other person or entity.
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm Company or users of the Website or expose them to liability.
Additionally, you agree not to:
- Use the Website in any manner that could disable, overburden, damage, or impair the website or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
- Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Website.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
- Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Website.
7. Uploaded Content
The Website may contain features wherein you upload material to the Website for use of the Services (“Uploaded Content”).
All Uploaded Content must comply with the Content Standards set out in
By providing any Uploaded Content on the Website, you grant us and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for the purpose of providing the Services.
You represent and warrant that:
- You own or control all rights in and to the Uploaded Content and have the right to grant the license granted above to us and our respective licensees, successors, and assigns.
- While utilizing the Services, to: (i) not use or disclose protected health information while using the Services other than as permitted or required by law; (ii) use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information; and (iii) report to Company any use or disclosure of protected health information of which it becomes aware within fifteen (15) days and be responsible for any breach notifications arising from such use or disclosure.
You understand and acknowledge that you are responsible for any Uploaded Content you submit or contribute, and you, not Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. You also understand and acknowledge that you are responsible for keeping a backup of all Uploaded Content or Subscriber Data as defined in any Service Agreement.
We are not responsible or liable to any third party for the content or accuracy of any Uploaded Content posted by you or any other user of the Website.
8. Monitoring and Enforcement; Termination
We have the right to:
- Remove or refuse to post any Uploaded Content for any or no reason in our sole discretion.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website.
YOU WAIVE AND HOLD HARMLESS THE COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party.
We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
9. Content Standards
These content standards apply to the Uploaded Content. Uploaded Content must in its entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, Uploaded Content must not:
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter, or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
10. Copyright Infringement
If you believe any Uploaded Content violates your copyright, please see our Copyright Policy detailed in Section 25 of this Agreement for instructions on sending us a notice of copyright infringement. It is the policy of the Company to terminate the user accounts of repeat infringers.
11. Reliance on Information Posted
The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
This Website may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Company, are solely the opinions and responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
12. Changes to the Website
We may update the content on this Website and via the Services from time to time but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material. Company may also make improvements to and/or changes in the Services described in this information at any time without notice.
13. Information About You and Your Visits to the Website
14. Online Purchases and Other Terms and Conditions
15. Linking to the Website
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
16. Links from the Website
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
17. Geographic Restrictions
The owner of the Website is based in the state of Washington in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
18. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Website for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
THE SOFTWARE AND INFORMATION PRESENTED ON OR THROUGH THE WEBSITE OR THROUGH OUR SERVICES ARE MADE AVAILABLE SOLELY FOR GENERAL INFORMATION PURPOSES. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THIS INFORMATION. ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER VISITOR TO THE WEBSITE, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS. INFORMATION ON THE WEBSITE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. ALL INFORMATION IS PROVIDED BY COMPANY ON AN “AS IS” BASIS ONLY. COMPANY PROVIDES NO REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. USE OF THE SERVICES IS SOLELY AT YOUR RISK. COMPANY MAKES NO WARRANTY THAT (i) THE WEBSITE WILL MEET YOUR REQUIREMENTS; (ii) THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE; AND (iv) THE QUALITY OF ANY PRODUCTS, INFORMATION, OR OTHER SERVICES PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR EXPECTATIONS.
YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE WEBSITE, RELATED SERVICES, OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. COMPANY IS NOT RESPONSIBLE FOR ANY INFORMATION NOT PROVIDED ON THE WEBSITE. COMPANY DOES NOT GUARANTEE, IMPLICITLY OR EXPLICITLY, ANY RESULTS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE AND USE.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER FOREGOING LAW.
19. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUES, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE WEBSITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICE PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES. YOU ALSO AGREE THAT COMPANY WILL NOT BE LIABLE FOR ANY INTERRUPTION OF BUSINESS, ACCESS DELAYS, OR ACCESS INTERRUPTIONS TO THE WEBSITE OR SERVICES, DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, AND EVENTS BEYOND COMPANY’S REASONABLE CONTROL.
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 19, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID TO COMPANY DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES. THE LIMITED REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF THEIR ESSENTIAL PURPOSE.
IN NO EVENT SHALL COMPANY BE FINANCIALLY LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
21. Governing Law and Dispute Resolution
The parties agree to submit any claim, dispute, or disagreement to mediation before a mutually-agreeable mediator prior to any other form of dispute resolution. All mediation or any other form of dispute resolution shall exclusively take place in the county of Whatcom and the parties irrevocably waive any objection to such venue.
22. Waiver and Severability
23. Entire Agreement
24. Your Comments and Concerns
This website is operated by EverGenius, LLC. Please send any comments or concerns to [email protected].
25. Digital Millennium Copyright Act (“DMCA”) Notice
If you believe that any Uploaded Content violate your copyright, please send us a notice of copyright infringement to the address below. It is the policy of Company to terminate the user accounts of repeat infringers. In the event materials are made available to this Website by third parties not within our control, we are under no obligation to, and do not, scan such content for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Website. If you believe any materials on the Website infringe a copyright, you should provide us with written notice that at a minimum contains:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
iv. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
v. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
All DMCA notices should be sent to our designated agent as follows:
6263 North Scottsdale Road, Suite 340
Scottsdale, AZ 85250
It is our policy to terminate relationships regarding content with third parties who repeatedly infringe the copyrights of others.
SAAS Services Agreement
This SAAS Services Agreement (including its Order Form and Exhibits, this “Agreement”) is between EverGenius, LLC, an Deleware limited liability company (“EverGenius”), and the subscriber indicated on the signature page hereto (“Subscriber”) and is effective as of the date this Agreement is executed by Subscriber below (“Effective Date”). From time to time herein, EverGenius and Subscriber shall be referred to as the “parties,” and each, a “party.” In consideration of the exchange of promises and covenants contained in this Agreement and other good and valuable consideration, the parties hereby agree as follows.
Subject to the terms of this Agreement, and the timely payment in full of all Subscription Fees (defined below), EverGenius shall provide Subscriber a non-exclusive, non-assignable, and non-transferable license to access and permit Subscriber’s Authorized Users (defined below) the right to access and use the EverGenius software services, including its associated materials, data, releases, and if applicable a hosted website (the “Website,” and collectively, (the “Services”). As soon as reasonably practicable following execution of this Agreement, EverGenius shall provide Subscriber with the necessary access codes and protocols to access the Services. No right or license under any patent, copyright, trademark, or other intellectual property right is granted by, or is to be inferred from, any provision of this Agreement.
For purposes of this Agreement, “Authorized Users” shall mean employees of Subscriber authorized by Subscriber to access the Services for the purposes of business management pursuant to the terms and conditions of this Agreement.
2. ADDITIONAL SERVICES
Subscriber may select additional services, including additional training and implementation services, as set forth on one or more statements of work executed between the parties hereto. Each statement of work shall set forth the fees for such additional services, which shall be payable as set forth therein. During the Initial Term, Subscriber’s purchase of the Services hereunder shall include the other services as set forth on Exhibit A, attached and incorporated herein. Services when initiated are NON-REFUNDABLE.
Subscriber shall not
(i) license, grant, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way;
(ii) copy, reverse engineer, modify or reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or make derivative works based upon the Services;
(iii) create Internet “links” to the Services or “frame” or “mirror” any Services;
(iv) bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid Access Credentials;
(v) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; or
(vi) access or use the Services 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.
4. EVERGENIUS’S RIGHTS AND OBLIGATIONS.
(a) Subscriber may elect to purchase additional features, functionality, or capabilities by entering into a mutually agreed upon and signed amendment to this Agreement.
(b) For the avoidance of doubt, EverGenius will not be obligated to provide the following in connection with the Services, unless provided for in a separate statement of work signed by the parties and payment of the applicable fees as set forth in such statement of work:
(i) training, configuration, or implementation services in addition to those services set forth on Exhibit A;
(ii) custom development or custom upgrades; or
(iii) any new products or services.
5. SUBSCRIBER’S RIGHTS AND OBLIGATIONS.
(a) Use of the Services. Subscriber is responsible for all activity occurring under Authorized User accounts for access to the Services and shall comply with all applicable local, state, national, and foreign laws related to data privacy and the transmission of technical or personal data, including personally identifiable information.
(i) notify EverGenius immediately of any unauthorized use of any password or account or any other known or suspected breach of security;
(ii) report to EverGenius immediately, and use reasonable efforts to stop immediately, any copying or distribution of the Services of any of the content in the Services that is known or suspected by Subscriber; and
(iii) not allow a user to impersonate another user or provide false identity information to gain access to or use the Services.
(b) Subscription Fees. Subscriber agrees to pay the Subscription Fees, additional messaging fees over the allotted usage at .05 cents per message/call recorded, and any other fees as set forth in this Agreement and/or invoiced to Subscriber. Currently $297 Monthly subscription has 200 Messages and 200 Minutes of call recording time. SUBSCRIPTION FEES ARE NON REFUNDABLE.
(c) Trademark License. Subscriber hereby grants EverGenius a limited right to use any and all trademarks, logos, and branding materials of Subscriber as may be requested in providing the Services pursuant to this Agreement, subject to the prior written approval of Subscriber. EverGenius acknowledges that such Subscriber trademarks remain the proprietary property of Subscriber and that EverGenius shall have no right to use any such trademarks outside the scope of this Agreement.
(d) Health Data. Subscriber represents and warrants, while utilizing the Services, to:
i. Not use or disclose protected health information while using the Services other than as permitted or required by law;
ii. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information; and
iii. Report to EverGenius any use or disclosure of protected health information of which it becomes aware within fifteen (15) days and be responsible for any breach notifications arising from such use or disclosure.
6. OWNERSHIP; DATA.
(a) Intellectual Property. All intellectual property rights in and to the Services belong exclusively to EverGenius or its licensors.
(b) Subscriber Data. Subscriber shall own all its data, information, and materials provided by Subscriber and its Authorized Users to EverGenius (the “Subscriber Data”), and Subscriber shall be solely liable for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all such data, information, and materials. “Subscriber Data” includes any Subscriber-specific content created by EverGenius for Subscriber using data, information, or materials provided by Subscriber and its Authorized Users to EverGenius. Subscriber hereby licenses to EverGenius the limited right to use or modify the Subscriber Data delivered by Subscriber to EverGenius solely for the purpose of permitting EverGenius to perform the Services requested by Subscriber hereunder. EverGenius may de-identify and/or aggregate any data and such de-identified and/or aggregated data shall be proprietary to EverGenius. Among Subscriber and its Authorized Users, the parties agree and acknowledge that, with respect to the Subscriber Data, Subscriber, and not the Authorized User(s), shall own such Subscriber Data.
(c) Return of Data. In the event this Agreement expires or is terminated as set forth herein, EverGenius will make all Subscriber Data available to Subscriber for electronic retrieval for a period of thirty (30) days, but thereafter Subscriber may, but is not obligated to, delete Subscriber Data. Subscriber agrees and acknowledges that EverGenius has no obligation to retain such Subscriber Data, and may delete such Subscriber Data, on or after thirty (30) days after the expiration or termination of this Agreement.
Each party acknowledges that it will have access to certain confidential information of the other party, including the terms and conditions of this Agreement. “Confidential Information” includes all information identified by a party as confidential. Each party’s Confidential Information shall
(i) remain the sole property of that party and
(ii) be used by the other party only as described herein and may not be disclosed, provided, or otherwise made available to any other third party except that such Confidential Information may be disclosed to the other party’s employees or agents who have a need to know in the scope of their work during the time they are performing services under this Agreement and are under the other party’s security and control. Confidential Information does not include
(i) information that the recipient can establish was already known to the recipient at the time it was disclosed in connection with this Agreement,
(ii) information that is developed independently by the recipient or received from another third party lawfully in possession of the information and having no duty to keep the information confidential,
(iii) information that becomes publicly known other than by a breach of this Agreement, or
(iv) information disclosed in accordance with a valid court order or other valid legal process. Each party agrees to hold the Confidential Information of the other party in strictest confidence and not to copy, reproduce, distribute, publish, or disclose such Confidential Information to any person except as expressly permitted by this Agreement.
(a) Subscription Fees. The fees for the Services provided pursuant to this Agreement (the “Subscription Fees”) shall be payable monthly in advance, on the first day of the month, prorated for partial periods (if any). The Subscription Fees are set forth on Exhibit B attached hereto and Subscriber shall pay such Subscription Fees to EverGenius within fifteen (15) calendar days of Subscriber’s receipt of an invoice by EverGenius.
(b) Implementation Fee. The implementation fee as set forth on the Order Form and Exhibit B shall be payable within fifteen (15) calendar days of Subscriber’s receipt of an invoice by EverGenius and is NON-REFUNDABLE.
(c) Suspension. In the event of non-payment of any Subscription Fees or other fees payable hereunder, EverGenius may, in addition to any other rights and remedies it may have, suspend Subscriber’s and its Authorized Users’ access to the Services upon thirty (30) calendar days’ notice.
(d) Subscription Fee Increase. EverGenius may increase the Subscription Fees for the Services upon thirty (30) calendar days’ written notice to Subscriber; provided, however, no increase in the Subscription Fees shall apply to the then-current term unless otherwise agreed to by the parties.
(e) Taxes. Subscription Fees do not include taxes (including sales, use, and VAT) or customs, duties, excise taxes, or tariffs. Federal, state and local sales, use and excise taxes and all similar taxes and duties are the sole responsibility of Subscriber.
(F) Ad spend of any kind including those from google adwords, facebook ads, bing ads or other pay per click or performance account is not included with any of the EverGenius or invigoMEDIA services SaaS or digital media marketing services unless agreed upon in advance and detailed in the our standard agreement. Ad spend is due and payable upon receipt.
9. TERM AND TERMINATION
(a) Agreement Term. This Agreement shall be valid as of the Effective Date for one year (“Initial Term”) and shall be automatically renewed for successive one-year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”) until this Agreement is terminated as set forth in this Section 9 of this Agreement.
(b) Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, EverGenius may terminate any, all, or any portion of the Services, if Subscriber meets any of the conditions in Section 9(b)(i), (ii), and/or (iii).
(c) Termination for Convenience. Either party may terminate this Agreement for its convenience if either party gives written notice to the other party of non-renewal at least thirty (30) calendar days prior to the termination of the Initial Term or the then-current Renewal Term.
(d) Effect of Termination. Upon suspension or termination of this Agreement all licenses granted hereunder will immediately terminate and the respective parties shall cease all activities concerning, including in the case of Subscriber, all use of, the suspended or terminated Services, including, if applicable access to the Website. Upon suspension or termination of this Agreement, Subscriber must pay all Subscription Fees and any other fees to the date of termination a provided herein. Subscriber will have the time period set forth in Section 6(c) to request and/or remove any Subscriber Data that it or its Authorized Users provided through the Services. Following such period, EverGenius may destroy such Subscriber Data. In the event such Subscriber Data is destroyed, and upon the request of Subscriber, EverGenius shall provide a written notice of certification of such destruction.
(e) Survival. Following termination or expiration of this Agreement, the following sections shall survive: Restrictions, Ownership and Data, Confidentiality, Subscription Fees, Limited Warranty, Limitation of Liability, Indemnification, Dispute Resolution, and any other terms which by their nature extend beyond the effective date of such termination.
10. LIMITED WARRANTY
EverGenius represents and warrants to Subscriber that the Services will be performed in a manner consistent with industry standards and in compliance with any specifications and requirements set forth in this Agreement. Subscriber’s exclusive remedy for breach of the foregoing limited warranty shall be for EverGenius to update and correct such Services not in compliance with such specifications and requirements, at no cost to Subscriber. The foregoing limited warranty shall not apply to performance issues or defects in the Services that result from factors outside EverGenius’s reasonable control, that resulted from any actions or inactions of Subscriber or its Authorized Users, or that resulted from Subscriber’s equipment or any third party equipment not within the control of EverGenius.
Except as set forth in this Section 10, THE SERVICES ARE PROVIDED “AS IS”, AND EVERGENIUS SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO SUCH SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
11. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 11, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID TO EVERGENIUS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES. THE LIMITED REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF THEIR ESSENTIAL PURPOSE.
Subscriber shall indemnify, defend, and hold harmless EverGenius and its affiliates, officers, managers, directors, employees, agents, successors, and assigns, for, from, and against all claims, demands, liabilities, damages, and costs including, without limitation, its reasonable attorneys’ fees, and other costs of defense, arising from or relating any claim that the data provided by Subscriber to EverGenius infringes upon the intellectual property rights of any third party.
13. DISPUTE RESOLUTION AND MEDIATION
If any controversy or claim arises relating to this Agreement, the parties will first attempt in good faith to negotiate a solution to their differences. If negotiation does not result in a resolution within thirty (30) days of when one party first notifies the other of the controversy or claim, then prior to initiating any legal proceeding, the parties agree, understand, and acknowledge that
(i) the parties must first participate in mediation with an experienced third-party mediator mutually agreeable to the parties;
(ii) the party desiring to initiate such action or proceeding must put the other party on written notice of the dispute and the nature of such dispute; and
(iii) the parties agree to share equally in the costs of the mediation. If mediation does not result in a resolution of the dispute, either party may elect to pursue other legal proceedings.
Subscriber agrees that during the Term of this Agreement and any statement of work, and for a period of twelve (12) months thereafter, it shall not solicit for employment or retention as an independent contractor any employee, independent contractor, or former employee or independent contractor of EverGenius, who provided any Services pursuant to this Agreement. “Solicit” shall not be deemed to include advertising in newspapers or trade publications available to the public.
Subscriber shall not assign this Agreement or its rights and obligations (including, without limitation, any assignment that occurs by operation of law) without the prior written consent of EverGenius. Notwithstanding the forgoing, the rights and obligations of either party may be assigned in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of such party. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding upon the parties and their respective successors and assigns.
If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
17. GOVERNING LAW
This Agreement shall be exclusively governed by and construed in accordance with the laws of Deleware without regard to its rules regarding conflict of laws.
18. ENTIRE AGREEMENT; AMENDMENTS
This Agreement (including the Exhibits attached hereto)
(a) represents the entire understanding between the parties hereto with respect to the subject matter set forth herein, (b) supersedes all negotiations, agreements, contracts, commitments and understandings, both verbal and written between EverGenius and Subscriber,
(c) and does not operate as an acceptance of any conflicting terms and conditions and shall prevail over any conflicting provisions of any purchase order or any other instrument of Subscriber. No modifications, additions, or amendments to this Agreement shall be effective unless made in writing as an amendment to this Agreement and signed by duly authorized representatives of the parties. The headings and captions of this Agreement are inserted for convenience and do not define, limit, or describe the scope and intent of this Agreement or any particular section, paragraph, or provision.
In the event of any discrepancies between this Agreement and the statement of work, this Agreement shall prevail over the statement of work unless the statement of work specifically states that it is intended to prevail over the terms of this Agreement.
Waiver of a breach of this Agreement shall not constitute waiver of another breach. Failure to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.
Any notice, communication, or request required or permitted by this Agreement shall be given to the recipient in writing by both email and either certified mail, nationally recognized overnight courier, or hand delivery to the address set forth in the introductory paragraph. Any such notice shall be deemed to be received on the date received by recipient.
22. RELATIONSHIP OF THE PARTIES
It is agreed that the relationship of the parties is that of independent contractors. Nothing herein shall be construed as creating a partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.