Terms of Use

Last updated and effective on: 08 May 2019

As a user of the Icebox Inc. d/b/a Everchron Inc.’s (“Everchron”) Services you agree to the following terms and conditions, including any Additional Terms incorporated by reference (collectively the "Terms of Use" or “Agreement”). By accessing or using the Services in any way, including accessing the Site, you agree to be bound by the Terms of Use. If you do not agree to the Terms of Use, you may not access or use the Services. If you are agreeing to these Terms of Use on behalf of a company or other entity, you represent that you have the authority to do so, and that such entity agrees to, and is hereby bound by the Terms of Use, and in such a case the term “you” “You” “your” and “Your” shall mean you and the represented entity, its affiliates, parents, and subsidiaries. For the avoidance of doubt, these Terms of Use apply to any User, as such term is further defined.

Capitalized terms not otherwise defined in these Terms of Use shall have the meanings provided in Section 13 (Definitions).

1. Use of the Services; Restrictions on Use, Retention of Rights.

1.1 The Services. For the purposes of these Terms of Use, the term “Services” means, collectively, all Everchron products, services and offerings made available to you by Everchron, including but not limited to: (a) its case management, case chronology, witness profiling, collaboration functionality, and other functionality, as may be modified from time to time and as may be further described in the Documentation, and; (b) those Everchron websites, systems or networks supporting, or made available to you through the Services (hereinafter the “Site”).

1.2 Subscriber’s License to Use the Services. Subject to Subscriber’s compliance with these Terms of Use, including Section 1.7 (Restrictions on Use), and the payment of any applicable subscription or other fee charged by Everchron for the Services, Everchron grants Subscriber a non-exclusive, personal, limited, fee-bearing, non-sublicensable, license to use the Services, for the sole purpose of accessing the Services for use solely by Subscriber and its Authorized Clients, in accordance with the Terms of Use and any applicable Documentation. Subscriber is responsible for its personnel or independent contractors’ compliance with the Terms of Use.

1.3 Authorized Client’s License to Use the Services. Subject to Authorized Client’s compliance with these Terms of Use, including but not limited to Section 1.7 (Restrictions on Use), Everchron grants Authorized Client a non-exclusive, personal, limited, non-sublicensable, license to use the Services, for the sole purpose of accessing the Services where such access relates to a Subscriber’s matter to which Authorized Client has been requested to participate, and for no other purpose.

1.4 Everchron’s Licenses to Provide the Services.

1.4.1 From Subscriber. Subscriber hereby grants and agrees to grant Everchron a non-exclusive, royalty free, fully paid-up, worldwide, right and license to use its Confidential Information and Content, for the sole purpose of providing the Services, including the right for Everchron to create, offer, monitor, troubleshoot, and improve the Services, and including all Intellectual Property reasonably necessary for such use. For the avoidance of doubt, and without limitation, Everchron’s rights under this section include the rights to generate and publish anonymized reports related to system and Content usage and characteristics, and Subscriber authorizes its Confidential Information and Content to be managed and/or made available through the Services to Authorized Clients.

1.4.2 From Authorized Client. Each Authorized Client hereby grants and agrees to grant Everchron a non-exclusive, royalty free, fully paid-up, worldwide, right and license to use its Confidential Information and Content, for the sole purpose of providing the Services, including the right for Everchron to create, offer, monitor, troubleshoot, and improve the Services, and including all Intellectual Property Rights reasonably necessary for such use. For the avoidance of doubt, and without limitation, Everchron’s rights under this section include the rights to generate and publish anonymized reports related to system and Content usage and characteristics, and Authorized Client authorizes its Confidential Information and Content to be managed and/or made available through Subscriber’s account to Subscriber and other Authorized Clients.

1.5 User’s Retention of Rights. Except as reasonable to provide the Services, and as provided in Section 1.4 (Everchron’s Licenses to Provide the Services), you shall retain all right, title, and interests in and to your Confidential Information and Content, including all Intellectual Property related thereto.

1.6 Everchron's Retention of Rights. Except as explicitly provided in Section 1.2 (Subscriber’s License to Use the Services) and 1.3 (Authorized Clients License to use the Services), Everchron retains all rights title and interests in and to the Everchron Materials, including all Intellectual Property therein and thereto, and nothing in the Terms of Use confer any license to any Everchron Intellectual Property by implication, estoppel, or otherwise.

1.7 Restrictions on Use. Your use of the Services is conditioned upon compliance with the Terms of Use, including the payment of any applicable fees, and your compliance with the restrictions in this section. You may not: (a) copy, modify, or make derivative works of the Everchron Materials; (b) sublicense, lease, sell, rent, use or otherwise transfer or make available the Everchron Materials to any third party; (c) reverse engineer, decompile, disassemble, or attempt to derive the source code or equivalent of Everchron Materials; (d) create a derivative work of or a functionally similar competing product to the Everchron Materials; (e) use software except as specifically allowed under the Terms of Use or Separate Terms, or; (f) remove, alter, cover, or distort any copyright, patent or other attribution on or in any of the Everchron Materials.

1.8 Feedback. You do not have to provide feedback to Everchron on its products or services, such as ideas for improvements, changes, bug fixes, workarounds, and other ideas related to current or future products or services (collectively “Feedback”), but if you do provide Everchron Feedback we must be able to use it without restrictions. Therefore, if you do provide Feedback, you hereby grant Everchron a nonexclusive, worldwide, perpetual, royalty-free, fully paid-up, irrevocable, fully sublicensable, license, to use, reproduce, modify, adapt, translate, publish, publicly perform and display, make derivative works of, broadcast, transmit and distribute, the Feedback, for any purpose and in any form, medium, or technology now known or later developed. This includes, without limitation, the right to incorporate or implement the Feedback into any Everchron product or service, new or existing, and to market, sell, offer to sell, import, sublicense and distribute the Feedback as incorporated or embedded in any product or service, in any manner, without compensation to you. You warrant that: (a) you have the right and authority to disclose Feedback to Everchron, and to grant this license, and; (b) Everchron's exercise of the rights granted pursuant to this license will not infringe or otherwise violate any third party rights, including those related to Intellectual Property. Feedback may include but is not limited to ideas, software, data, and other material that may be provided to Everchron related to current or future technologies, products, and services.

2. Changes and Updates to Services.

2.1 Updated Services. Everchron reserves the right to add to, modify, suspend, or discontinue any features or functionality related to the Services without notice, however Everchron intends to provide reasonable notice to Subscriber of any modification that materially impacts the functionality of the Services.

2.2 Maintenance and Suspension of Services. Everchron reserves the right to suspend or terminate access to the Services for operational purposes, including for maintenance, repairs, or installation of upgrades. Everchron will attempt to provide reasonable notice prior to any such suspension that occurs during business hours, and Everchron will attempt to minimize disruption in connection with any operational suspension.

3. Administration of Accounts; Subscriber’s Obligations.

3.1. Subscription Services. Access to Everchron’s paid subscription services requires a valid fully paid up subscription, in accordance with any applicable Documentation, including payment of any applicable fee as further described in Everchron’s fee schedule.

3.2 User Registration. Each User must register to use the Services, and provide Everchron the information requested during such registration, including their full legal name, a valid email address, and any other information requested by the Services. Each User will establish a unique identifier to access and use the Services (a “Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.

3.3 Administrator’s Obligations. The Administrator is responsible for managing the Subscriber’s subscription and for authorizing and managing Authorized Users. Subscriber and Administrators are responsible for all use of the Services by Authorized Users associated with their subscription to the Services. The Administrator will deactivate any inactive users within sixty (60) days from such user’s last use. Subscriber will implement policies and procedures to prevent unauthorized use of Usernames and passwords and will promptly notify Everchron if any Username and password has been lost, stolen, compromised, or misused.

4. Confidentiality; Security; Client Relationship.

4.1 Confidential Information. Everchron and you will have access to certain information, materials, and data related to technologies, individuals and cases that a reasonable person under the circumstances would consider confidential, attorney-client privileged communications, or proprietary information, whether or not such materials are marked as confidential or proprietary (“Confidential Information”). Notwithstanding the generality of the above, Confidential Information includes without limitation, Everchron Materials, including all Intellectual Property related thereto, and User’s Confidential Information and Content, including but not limited to PHI, and PII.

4.2 Non-Disclosure. Everchron and you agree not disclose Confidential Information to any third party or use Confidential Information in a manner that is not related to the delivery of or your use of the Services. Everchron and you shall protect Confidential Information in a manner at least as protective as your own confidential information, but in no case with less than commercially reasonable care, and shall prevent any unauthorized use or disclosure of Confidential Information, including by you or a third party. You acknowledge that any unauthorized use or disclosure of Everchron Confidential Information will cause Everchron irreparable harm and injury for which there are inadequate remedies at law, and that notwithstanding any other provision of this agreement, Everchron shall be entitled to equitable relief for unauthorized use or disclosure of its Confidential Information, without the need to post bond, in addition to all other remedies available to it.

4.3 Disclosures under Law. Confidential Information may be disclosed as required by law (such as in response to a subpoena or court order), to protect any individual’s personal safety, to enforce rights under these Terms of Use, and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter. If a party is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by the Terms of Use, such party will provide the owner of such Confidential Information with prompt written notice (to the extent permitted by law) prior to such disclosure, so that the owner of the Confidential Information may seek a protective order or other appropriate relief.

4.4 No Legal or Medical Advice. While the Services support customers involved in the legal industry, at no time does Everchron work under or at the direction of any counsel using the Services, and at no time shall there be an attorney-client relationship between Everchron and any party using the Services, and no information provided in or through the Services shall be deemed legal advice to any party under any circumstances. Although some of the Content that may be provided on or through the Services may be provided by individuals in the medical profession or otherwise related to medical treatment or information, you acknowledge that the availability of such content does not create a medical professional/patient relationship and does not constitute an opinion, medical advice or diagnosis or treatment of any particular condition. Everchron does not recommend or endorse any specific test, doctor, health care provider, procedure or information that may be available on or through the Services. Your use of the Content provided on or through the Services is at your own risk and you warrant that you are responsible for and shall ensure that you make any such content available only with proper and appropriate warnings and disclaimers that same do not constitute medical advice.

4.5 Relationship of the Parties. Everchron provides the Services to Users as an independent contractor and neutral vendor. As a neutral vendor, Everchron does not represent any party with regards to any legal matter being supported by the Services, and Everchron has no duty to review client cases for potential conflicts of interest with regards to Subscriber or any other party involved in a case that is supported by the Services. At no time shall Everchron be required to perform a conflict of interest review or to seek any waiver of any conflict of interest or potential conflict of interest relating to the Services or any legal matter that is supported by the Services. At no time shall Everchron be deemed an expert witness or consultant of any Subscriber or other User or party. Notwithstanding anything in this section, you agree that Everchron may have access to your Confidential Information and the Confidential Information of other parties using the Services.

5. Payments and Future Services.

5.1 Subscription Payments. Unless other arrangements are agreed to in writing by Everchron subscription payments shall be made automatically using Subscriber’s pre-authorized credit card or debit card provided by Subscriber and kept on file by Everchron.

5.2 Trial Periods and Subscription Fees. Subscribers with a free trial period will be charged Everchron’s regular subscription fees upon the expiration of the applicable free trial period. Subscriptions canceled prior to the expiration of any trial period will not be charged. Monthly Subscription fees are payable in advance at the beginning of the subscription period, and automatically renewed and charged at or prior to the beginning of each subsequent renewal of such subscription term. Annual Subscription fees are payable in advance on or before the applicable subscription term, and annually upon the anniversary of the subscription term. Failure of Everchron to collect subscription fees prior to the beginning of any subscription terms shall not relieve Subscriber from its obligation to pay subscription fees, for the subscription term, which shall remain payable until paid. Except as expressly set forth in the Terms of Use, all subscription and other fees are non-refundable. Subscriptions terminated prior to the end of the then current subscription term shall not entitle Subscriber or any other party to a refund of any subscription fees, and unpaid subscription fees and other fees shall continue to be payable by Subscriber.

5.3 Changes to Subscriptions or Service Levels. Changes to existing subscription plans or service levels will take effect at the beginning of the next billing cycle. The amount charged on the next billing cycle will be updated to reflect any changes to the subscription, service agreements, and including upgrades or downgrades. Subscription changes (including downgrades) may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Services. Except as expressly set forth in this Agreement, no refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber.

5.4 Fees and Pricing. Fees and pricing are subject to change upon notice.

5.5 Taxes. Subscriber is responsible for paying its own taxes, and all taxes associated with the Services and subscriptions, including but not limited to all federal, state, local, workers compensation, internet-based, value added, use taxes, or other applicable taxes. If Everchron has the legal obligation to pay or collect taxes for which Subscriber is responsible under this Section, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides Everchron with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. Term and Termination.

6.1 Term. This Agreement shall commence upon your consent to this Agreement through the registration process provided by Everchron, or upon your first use or access of the Site or Services (“the “Effective Date”), and shall continue until terminated in accordance with this Section.

6.2 Termination of Subscriptions. Administrators may cancel subscriptions at any time for convenience utilizing the termination procedures provided within the Services. No refunds will be applied to any canceled subscription regardless of the remaining term of the original subscription.

6.3 Termination for Cause. Everchron may suspend or terminate any User’s access to the Services without notice if in Everchron’s sole and exclusive discretion Everchron determines that: (a) a User has breached Section 1.7 (Restrictions on Use); (b) there is excess use of an Application Program Interface (“API”) by a User; (c) such suspension and/or termination is necessary to protect the integrity of the Services, including Everchron’s networks or systems or those of a third party; (d) such suspension and/or termination is necessary to protect Everchron’s or another party’s Intellectual Property, or; (e) any User is in breach of the Terms of Use. Everchron may also terminate the Services or any subscription if it believes in its sole determination that such termination is necessary to comply with or to mitigate risk associated with any Regulation(s).

6.4 Termination by Everchron. Everchron may terminate these Terms of Use, the Services, or any subscription, upon thirty (30) days’ notice to Subscriber, for any or no reason.

6.5 Effect of Termination. Upon termination for any reason, Users shall immediately cease using or accessing the Services, and shall within seven (7) days return all Everchron Materials Users may have in their possession to Everchron. Except for termination under Section 6.3, Everchron will for a period of not more than sixty (60) days, at Subscriber’s expense if any, make User’s data available to Subscriber (including data belonging to Authorized Clients). Everchron may maintain User data for a reasonable period of time following the termination of Services to a Subscriber, however, Everchron may, at its discretion, delete all User Data ninety (90) days following the termination of Services or a subscription without notice regardless of the reason for termination. Everchron shall not be liable for the deletion of User’s data. In the vent Everchron terminates the Services or a subscription for convenience pursuant to Section 6.4, Everchron shall within sixty (60) days, refund any prepaid unused subscription fees, on a pro rata basis, less any amount owed to Everchron by Subscriber under any agreement or subscription. For the avoidance of doubt, Subscribers shall not be entitled to a refund of any subscription fees or any other pre-paid fees upon termination of the Services or a subscription, except where Everchron terminates, for convenience, under Section 6.4. The termination of the Services or a subscription for any reason shall not effect any fees due or payable by Subscriber or other party prior to such termination.

7. Appropriate Uses.

In order to preserve the quality and security of the Services, and out of respect for other users, you agree not to: (a) access or use the Site in any manner that could damage, disable, overburden, or impair any Everchron accounts, the Services, computer systems, networks, or other users of the Services; (b) attempt to gain unauthorized access to any parts of the Site or any Everchron accounts, computer systems or networks, or; (c) use any robot, spider, scraper or other automated means to access the Site or any Everchron accounts, computer systems or networks without Everchron's express written permission.
You further agree not to use the Site in a manner that: (a) is false or misleading; (b) is defamatory, derogatory, degrading or harassing of another or constitutes a personal attack; (c) invades another's privacy or includes, copies or transmits another's confidential, sensitive or personal information; (d) promotes racism, hatred or harm against any group or individual; (e) is obscene or not in good taste; (f) violates or infringes or promotes the violation or infringement of another's rights, including Intellectual Property Rights; (g) you do not have the right and authority to do so; (h) violates or promotes the violation of any applicable laws or regulations; (i) contains a solicitation of funds, goods or services, or promotes or advertises goods or services; or (j) introduces any virus, Trojan horse, or other component designed to limit or harm the functionality of a network or computer. Everchron may report violators to the relevant authorities and may act under the fullest extent of applicable laws to enforce these Terms of Use. Everchron retains the right to immediately terminate access to the Services without notice if in its sole determination it believes such termination is necessary to enforce the Terms of Use, for the proper operation or security of the Services, or for the protection of its network, data, Site, the Intellectual Property rights of Everchron or a third party.

8. Warranties.

8.1 User Warranties. User warrants that: (a) it has the authority to enter into these this Agreement; (b) it will comply with the terms and conditions of this Agreement; (c) its Content and the use of same in or with the Services shall not infringe the Intellectual Property of any third party; (d) it has the necessary consents and authority to grant Everchron all of the rights and licenses set forth in the Terms of Use, and; (e) it will use the Services in accordance with all applicable Regulations. In jurisdictions outside the United States, “Regulations” means the regulations and legal requirements that relate to the creation, use, sharing, disclosure, and transmittal of healthcare information, data, and procedures, and patient data and information in such jurisdiction. In jurisdictions where the General Data Protection Regulation (“GDPR”) applies, Regulations includes the GDPR. In the United States, Regulations means collectively, the Privacy and Security Regulations promulgated by the United States Department of Health and Human Services (“HHS”) at 45 CFR Parts 160, 162 and 164 that were issued pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended, and the rules and regulations promulgated thereunder (“HIPAA”) and pursuant to the provisions of the Health Information Technology for Economic and Clinical Health Act of 2009, as amended, and the rules and regulations promulgated thereunder (“HITECH”) and similar laws, rules and regulations that may be promulgated by HHS.

8.2 Everchron Warranties. Everchron warrants that as of the Effective Date, to its knowledge, the Services do not infringe the Intellectual Property of any third party. The foregoing warranty is the sole and exclusive warranty provided by Everchron to any party related to this Agreement, the Everchron Materials, or the use or output of the Services.

9. DISCLAIMERS AND LIMITATION OF LIABILITY.

9.1 DISCLAIMERS. EXCEPT WHERE EXPRESSLY PROVIDED IN SECTION 8.2 (WARRANTIES) THE EVERCHRON MATERIALS (INCLUDING THE SERVICES), AND INCLUDING ALL CONTENT, ARE PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. EVERCHRON EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHATSOEVER, WHETHER EXPRESS OR IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. EVERCHRON MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES THAT: (A) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (B) ANY RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (C) THE SERVICES WILL MEET YOUR REQUIREMENTS; OR (D) THE QUALITY OF ANY SERVICES OR CONTENT ACCESSED BY YOU ON OR THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. ANY CONTENT OR THIRD PARTY OFFERINGS ACCESSED, DOWNLOADED OR OTHERWISE OBTAINED ON OR THROUGH THE USE OF THE SERVICES IS USED AT YOUR OWN DISCRETION AND RISK. YOU ARE RESPONSIBLE FOR BACKING UP YOUR OWN DATA AND CONTENT, INCLUDING ANY THIRD PARTY CONTENT RELATED TO YOUR USE OF THE SERVICES AND EVERCHRON SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE OR LOSS TO ANY SUCH DATA OR CONTENT OR DAMAGE OR LOSS TO YOUR COMPUTER SYSTEMS, NETWORKS, OR LOSS OF DATA, INCLUDING BUT NOT LIMITED TO A LOSS THAT RESULTS FROM THE DOWNLOAD, USE OR UNAVAILABILITY OF THE SERVICES OR THIRD PARTY OFFERINGS. TO THE EXTEND SUBSCRIBER OR OTHER USER USES PHI OR PII WITH OR IN THE SERVICES, SUBSCRIBER AND SUCH USER SHALL USE SUCH INFORMATION AT ITS SOLE DISCRETION AND AT ITS OWN RISK. EXCEPT AS PROHIBITED BY LAW OR REGULATION, EVERCHRON DISCLAIMS ALL LIABILITY THAT MAY ARISE OUT OF THE USE OF PHI OR PII WITH OR IN THE SERVICES AND SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY RELATED TO THE USE, BREACH, OR DISCLOSURE OF ANY SUCH INFORMATION. SUBSCRIBER SHALL INDEMNIFY EVERCHRON FOR ANY LIABILITY ARISING FROM ITS OR ITS USERS’ USE OF PHI OR PII WITHIN OR WITH THE SERVICES.

9.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EVERCHRON BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, USE OF DATA, INCURRED BY YOU OR ANY OTHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, OR OTHERWISE, ARISING FROM YOUR ACCESS TO, USE OF, LACK OF ACCESS TO, OR TERMINATION (FOR ANY REASON) OF, THE SERVICES OR THIRD PARTY OFFERINGS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES. TO THE EXTENT THAT ANY SUCH DISCLAIMERS OR EXCLUSIONS IN THESE TERMS OF USE ARE HELD TO BE LEGALLY INVALID, ANY SUCH DISCLAIMER, EXCLUSION OR LIMITATION SET FORTH IN THESE TERMS OF USE, INCLUDING THOSE SET FORTH IN THIS SECTION, SHALL NOT APPLY, HOWEVER THE PARTIES AGREE THAT ALL OTHER REMAINING TERMS OF USE OF SUCH SECTION(S) AND THE OTHER TERMS AND CONDITIONS OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT TO THE FULLEST EXTENT AVAILABLE UNDER APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION IN NO EVENT SHALL EVERCHRON’S TOTAL CUMULATIVE LIABILITY RELATED TO THIS AGREEMENT OR THE SERVICES OR OTHERWISE BE GREATER THAN THE AMOUNT PAID OR PAYABLE TO EVERCHRON BY THE OTHER PARTY FOR THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.

9.3 Third Party Content. The Services include Content and may provide links to Websites and access to Content, products and services of Users or other parties (“Third Party Content”), including users, advertisers, affiliates and sponsors of the Services. Everchron is not responsible for Third Party Content provided on or through the Services, or for any changes, updates, or lack of availability of same. EVERCHRON SHALL HAVE NO LIABILITY FOR YOUR USE OF ANY THIRD PARTY CONTENT. THIRD PARTY CONTENT IS OFFERED AS-IS, WITH NO WARRANTIES, AND YOU BEAR ALL RISKS ASSOCIATED WITH THE ACCESS TO, AND USE OF, SUCH THIRD PARTY CONTENT.

9.4 Third Party Offerings. Everchron may provide the ability to access or use third-party products and services that you may use at your option (“Third Party Offerings”). Your access to or use of any Third Party Offerings may be subject to separate terms and conditions (“Separate Terms”) required by the providers of such offerings. Your use of any Third Party Offerings shall be at your own risk, and shall be governed by any Separate Terms. Everchron may change or discontinue Third Party Offerings at any time without notice or liability. EVERCHRON SHALL HAVE NO LIABILITY FOR YOUR USE OF ANY THIRD PARTY OFFERINGS. THIRD PARTY OFFERINGS ARE AVAILABLE AS-IS, WITH NO WARRANTIES, AND YOU BEAR ALL RISKS ASSOCIATED WITH THE ACCESS TO, AND USE OF, SUCH THIRD PARTY OFFERINGS.

9.5 ESSENTIAL TERMS. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING AND OTHER TERMS OFFERED BY EVERCHRON TO USERS AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.

10. Indemnification.

10.1 Subscriber Indemnification. Subscriber agrees to indemnify and hold harmless Everchron, its officers, directors, employees, attorneys and agents from and against any and all claims, demands, liabilities, damages, losses or expenses, including reasonable attorneys' fees and costs, due to or arising out of: (a) Subscriber’s use of the Services; (b) Subscriber’s breach of this Agreement; (c) Content or the use of Content in or with the Services; (d) a claim that Content or the use of Content with the Services infringe the Intellectual Property of a third-party or Authorized Client; (e) any use of PHI or PII in the Services; (f) a claim of breach of Intellectual Property by Subscriber brought by a third party or Authorized Client, or; (f) any claim brought by an Authorized Client related to: (i) Subscriber; (ii) Subscriber’s use of the Services, or (iii) Subscriber’s negligence or professional malpractice. Subscriber will undertake, at Subscriber’s own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to Everchron. Everchron reserves the right to participate in the defense of the claim, suit, or proceeding, at Everchron’ expense, with counsel of Everchron’ choosing. The use of the Term “Subscriber” in this section includes any Authorized Clients, or other user accessing the Services through or in any way related to Subscriber’s account.

10.2 Everchron’s Indemnification. Everchron agrees to indemnify and hold harmless Subscriber, its officers, directors, employees, attorneys and agents from and against any and all claims, demands, liabilities, damages, losses or expenses, including reasonable attorneys' fees and costs, due to or arising out of Everchron’s breach of its warranties under Section 8.2 of this Agreement. Everchron’s obligations under this section are conditioned upon Subscriber giving: (a) prompt written notice of the Claim to Everchron; (b) Everchron sole control of the defense and settlement of the Claim (provided that Everchron may not settle any Claim unless it unconditionally releases Subscriber of all liability), and; (c) Everchron, at Everchron’s cost, all reasonable assistance. Everchron shall not be required to indemnify Subscriber in the event of: (i) modification of the Services by Subscriber if such modification relates to the Claim of infringement; (ii) use of the Services in combination with any other product or service; or (iii) use of the Services in a manner not authorized by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use.

11. Arbitration.

Any dispute arising out of or relating to this Agreement shall be subject to final and binding arbitration to take place in Los Angeles, California, and shall be presided over by a single arbitrator, to be mutually agreed upon by each party, and shall be conducted in English. Notwithstanding the foregoing, temporary, preliminary and emergency equitable relief to protect Everchron’s Intellectual Property may be sought by Everchron at any appropriate jurisdiction and venue.

12. Other Applicable Terms and Conditions.

12.1 Contractors. You acknowledge that Everchron may use contractors, third-party vendors, and hosting partners to provide the Services, and necessary hardware, software, networking, storage, and related technology required to run the Services.

12.2 Privacy Policy. Everchron respects your privacy and has developed a policy to address privacy concerns. For more information about how Everchron may use your data, please see our Privacy Policy, which is incorporated in its entirety by this reference. Everchron’s Privacy Policy is located here at https://everchron.com/privacy-policy.

12.3 Business Associate Agreement (BAA). To the extent Everchron is acting in the capacity as a Business Associate to Subscriber, the terms of the Everchron BAA shall apply, and is hereby incorporated in its entirety by this reference. To review the terms of the Everchron BAA, please see https://everchron.com/business-associate-agreement.

12.4 Waiver. The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.

12.5 Modifications to this Agreement. Everchron reserves the right to amend these Terms of Use. In the event of material changes to the Terms of Use, Everchron will notify Subscribers, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Services by the Subscriber after reasonable notice will be considered acceptance of any new or different terms.

12.6 Assignments. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect.

12.7 Governing Law and Venue. This Agreement and any disputes that rise out of it shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws of the State of California (and shall be considered to have been made and performed in Los Angeles County, California), without regard to its conflict of law provisions. The parties irrevocably consent to the exclusive jurisdiction and venue of the courts located within Los Angeles, California, and waive any objection as to the convenience of the forum.

12.8 Notices. Notices given by Everchron will be sent to the Administrator at the email on file with Everchron. Unless otherwise expressly provided herein, notices to Everchron must be sent to info@everchron.com with a copy to jim@markwithlaw.com.

12.9 Export Restrictions. You may not export, directly or indirectly; any of the Everchron Materials, including software, in violation of any U.S. export laws or regulations.

12.10 Force Majeure. Neither party will be liable to the other for any failure or delay in performance of an obligation, other than obligations to make payments, arising out of any event or circumstance beyond the reasonable control of that party, including without limitation acts of God, earthquakes, fires, floods, power outages, interruptions in telecommunication services, strikes, and governmental actions.

12.11 Minimum Age Requirement. You must be at least 18 years old or older to use the Services (including the Site).

12.12 Entire Agreement. This Agreement constitutes the entire agreement between you and Everchron and supersedes any prior or contemporaneous agreements between you and Everchron (including, but not limited to, any prior versions of this agreement).

13. Definitions.

“Additional Terms” means those additional terms and conditions or policies incorporated into the Terms of Use by reference, including but not limited to Everchron’s Privacy Policy.

“Administrator” shall mean the person appointed by Subscriber with authority to designate Authorized Users and Authorized Clients. Unless and until changed, the Administrator shall be the individual who initially signed up for the Services.

“Agreement” shall mean the Terms of Use.

“Authorized Client” means any individual or entity who accesses the Services in a capacity as a client of Subscriber, including any person or entity accessing such Services through access given to or obtained by any such client.

“Authorized User” shall mean Subscriber personnel, contractors, or others that access the Services by or on behalf of Subscriber, or who access the Services through Subscriber’s account.
“Content” means all information and materials provided by you, Authorized Clients, or a third party in relation to your use of the Services, whether in electronic form or otherwise, including but not limited to any information, documents and data that is provided, uploaded or posted to the Services or in connection with the Services by Subscriber, Authorized Clients or anyone else acting by, through or on behalf of Subscriber, including, without limitation, information about Authorized Clients, individuals, or patients, and including all data (including PII and PHI).
“Documentation” means Everchron’s documentation and specifications relating to its products and Services, including any product descriptions, approved uses, use restrictions, performance specifications, and applicable Fee Schedules.
“Everchron Materials” includes all Everchron products and services and all related technologies and materials, including but not limited to the Services, and Everchron or its licensor’s: Documentation, software, APIs and related technologies, data, scripts, algorithms, applications, templates, insights, results, outputs, reports, tools, and other materials or information made available by or on behalf of Everchron.
"Intellectual Property" means patents, copyrights, trade secrets, trademarks (including trade names, logos and service marks (collectively the “Marks”)) and know-how, in each case whether registered or unregistered, and including any application(s) for patents or registration for any of these, and the equivalent on a world-wide basis, and in each case all rights related thereto. You may not use Everchron’s Marks without written approval of Everchron.
“Protected Health Information” or “PHI” will have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, as applied to the information created, received, maintained or transmitted by you, your users, or another party associated with your use of the Services.

“PII” or personally identifiable information means any information that could potentially identify a specific individual.

“Subscriber” shall refer to the purchaser of the Services provided by Everchron and its Authorized Users.

“Users” means Subscriber and other parties that have access to the Services through or related to Subscriber’s account or use of the Services, including Authorized Users and Authorized Clients.