Terms of Use

EVERCHRON TERMS OF USE

(Last updated: August 27, 2018)

These Terms of Use govern your use of the software and services provided by Icebox Inc. d/b/a Everchron (“Everchron”). Capitalized terms not defined in context shall have the meanings ascribed in Section 11. By registering to use the Service, you are agreeing to be bound to this Agreement, and you may not use the Service unless you have registered and agree.

1. Use of the Service; Restrictions.

1.1. Authorized Users are granted a non-exclusive, non-transferable, limited license to access and use the Service for its intended purpose, subject to this Agreement. Except for this non-exclusive license, all ownership, license, intellectual property and other rights and interest in and to the Service remain solely with Everchron.

1.2. Authorized Users agree not to:

(a) reproduce, duplicate, copy, sell, resell or exploit access to the Service.

(b) modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Everchron, or any other software or service provided by Everchron;

(c) use the Service in any manner which may infringe, violate or misappropriate the rights of any party, or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement;

(d) use the Service to upload, post, host, or transmit unsolicited bulk email, viruses, self-replicating computer programs, or any code of a destructive or malicious nature;

(e) access or use the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service; or

(f) use the Service in any way to compete with Everchron or otherwise in any way, whether directly or indirectly, provide an competitor or potential competitor of Everchron with access to the Service.

1.3. Everchron reserves the right to modify, suspend or discontinue any feature, with or without notice, except that Everchron shall provide Subscriber with 15-days’ notice of any modification that materially reduces the functionality of the Service. In such instance, Subscriber may terminate any subscription and receive a prorated refund for the then-current term by providing Everchron with written notice prior to the expiration of the 15-day notice period. Otherwise, Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.

1.4. Everchron reserves the right to temporarily suspend access to the Service for operational purposes, maintenance, repairs or installation of upgrades. Everchron will provide reasonable notice, and will endeavor to provide no less than three days notice prior to any such suspension the occurs during business hours or with duration of 6 or more hours. Everchron shall use its best efforts to minimize disruption in connection with any operational suspension.

1.5. Subscriber grants to Everchron a non-exclusive, royalty free right during Subscriber’s use of the Service, to use the Confidential Information for the sole purpose of performing Everchron’ obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for Everchron to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 3.

2. Access; Administrators; APIs.

2.1. Only Authorized Users are permitted to use the Service. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.

2.2. The Administrator shall have the authority to administer the subscription and designate additional Authorized Users. Administrators are responsible for all use of the Service by Authorized Users associated with their subscription to the Service. The Administrator will promptly deactivate any inactive users.

2.3. Each Authorized User will establish a unique identifier to access and use the Service (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.

2.4. If available, with Everchron’s prior written consent, Authorized Users are permitted to access and use the Service using an Application Program Interface (“API”) subject to the following conditions:

(a) Everchron shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Everchron has been advised of the possibility of such damages), resulting from any use of an API or third-party products that access and use the Service via an API; and

(b) Excessive use of the Service through an API, as determined by Everchron in its sole discretion, may result in temporary or permanent suspension of access to the Service via an API.

3. Confidentiality; Security.

3.1. Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except in connection with performing its obligations under (or as otherwise permitted by) this Agreement.

3.2. Confidential Information may be provided 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 this Agreement, 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 this Agreement, 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.

3.3. The Service: (a) transmits passwords in a secure format; and (b) protect passwords entered for purposes of gaining access to the Service in accordance with industry practices. Subscriber is responsible for protecting the security of Usernames and passwords.

3.4. Subscriber will implement policies and procedures to prevent unauthorized use of Usernames and passwords, and will promptly notify Everchron upon suspicion that a Username and password has been lost, stolen, compromised, or misused.

3.5. Everchron will:

(a) adhere to industry standard security practices for transmitting and storing Content;

(b) employ industry standard information security practices and

(c) ensure its hosting service providers and facilities maintain industry standards for security and privacy.

3.6. Everchron shall report to Subscriber, with reasonable detail, any event that Everchron reasonably believes represents unauthorized access to, disclosure of, use of, or damage to such Subscriber’s Content (a “Security Incident”) within 72 hours of incident triage after learning of the Security Incident.

3.7. In the event of a Security Incident, the parties shall cooperate to: (a) identify the cause of the breach and to identify any affected Content; (b) investigate and prevent the recurrence of the Security Incident; and (c) mitigate any harmful effect of the Security Incident.

4. Payment and Subscription Changes.

4.1. Unless other arrangements are agreed to in writing by Everchron, Subscribers with paid subscriptions will provide Everchron with a valid credit card for payment of the applicable subscription fees.

4.2. Subscribers with monthly paying subscriptions will be charged upon the expiration of any applicable free trial period. Subscriptions canceled prior to the expiration of any trial period will not be charged. Monthly Subscribers will initially and thereafter be charged in advance each month. Annual Subscribers will thereafter be charged initially and annually on the anniversary date of the initial subscription charge. Except as expressly set forth in this Agreement, all charges are final and non-refundable, including payments made for annual subscriptions.

4.3. 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.

4.4. The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, 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 Service.

4.5. All prices are subject to prospective change upon notice.

4.6. Subscriber is responsible for paying all taxes associated with the subscription to the Service. 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.

4.7. Any and all payments under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Everchron receives an amount equal to the sum it would have received had no such deduction or withholding been made.

5. Cancellation and Termination.

5.1. Administrators may cancel subscriptions at any time by accessing the Service. No refunds will be made for the current term (whether monthly, yearly or other).

5.2. Everchron in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of this Agreement, (b) create an Exigency, or (c) if (i) Authorized Users use the Service in violation of this Agreement; (ii) Everchron provides Subscriber with commercially reasonable notice of this violation; (iii) the parties use reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to Everchron’s reasonable satisfaction within thirty (30) days of such notice, then Everchron reserves the right to suspend access to the Service.

5.3. Except for terminations pursuant to Section 5.2(a), upon cancellation or termination of a subscription, Content is made available to the Administrator or a designated Authorized User. Following a period of no less than ninety (90) days from the cancellation or termination of a subscription, all Content associated with such subscription will be irrevocably deleted from the Service.

5.4. Everchron may discontinue the Service in its entirety at any time, in which case it will provide a prorated refund for any prepaid current subscription terms.

6. Limitation of Liability.

6.1. SUBSCRIBER AGREES THAT THE LIABILITY OF EVERCHRON ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT SUCH SUBSCRIBER HAS PAID FOR THE SERVICE PURSUANT TO THIS AGREEMENT WITHIN THE SIX-MONTH PERIOD BEFORE THE DATE THE CLAIM(S) AROSE. SUBSCRIBER FURTHER AGREES THAT EVERCHRON IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. THESE LIMITATIONS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER EVERCHRON HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

6.2. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY EVERCHRON TO SUBSCRIBER 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.

6.3. Subscriber will solely be responsible for any damage and/or loss of Content contained in Subscriber’s technology which occurs as a result of Subscriber’s electronic equipment and/or Subscriber’s computer system.

6.4. The limitations in this Section 6 will not apply to the extent prohibited by applicable law.

7. Disclaimer of Warranties.

7.1. EVERCHRON HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH RESPECT TO ANY SERVICES PROVIDED BY EVERCHRON.

7.2. Everchron makes no warranty that the Service will be compatible with Subscriber’s hardware or software, or that these Service will be secure or error free. Nor does Everchron make any warranty as to any results that may be obtained from the use of the Service.

8. Indemnification.

8.1. Subscriber hereby agrees to indemnify and hold harmless Everchron from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following: (a) Authorized Users’ breach of any obligation stated in this Agreement, and (b) Authorized Users’ negligent acts or omissions. Everchron will provide prompt notice to Subscriber of any indemnifiable event or loss. 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.

8.2. Everchron shall defend, indemnify and hold Subscriber harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Subscriber by a third party: (a) arising out of or related to a breach by Everchron of its obligations under Section 3; or (b) alleging that the Service, or use of the Service as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of this Agreement, or a trademark of a third party, or involves the misappropriation of any trade secret of a third party; provided, however, that Subscriber:

(a) promptly gives written notice of the Claim to Everchron (provided, however, that the failure to so notify shall not relieve Everchron of its indemnification obligations unless Everchron can show that it was materially prejudiced by such delay and then only to the extent of such prejudice);

(b) gives 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) provides to Everchron, at Everchron’s cost, all reasonable assistance.

Everchron shall not be required to indemnify Subscriber in the event of: (x) modification of the Service by Subscriber in conflict with Subscriber’s obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (y) use of the Service in combination with any other product or service not provided by Everchron to the extent that the infringement or misappropriation would not have occurred but for such use; or (z) use of the Service in a manner not otherwise contemplated by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use.

9. Arbitration.

Any dispute arising out of or relating to this Agreement shall be subject to final and binding arbitration pursuant to the Judicial Arbitration & Mediation Service (“JAMS”) applicable rules. Such arbitration shall take place in Los Angeles, California, shall be presided over by a single arbitrator, and shall be conducted in English. Notwithstanding the foregoing, temporary, preliminary and emergency equitable may be sought and obtained in the concomitant court in Los Angeles, California, consistent with the California Arbitration Act.

10. Miscellaneous.

10.1. Technical support and training are available to Authorized Users with active subscriptions.

10.2. Subscriber acknowledges and agrees that Everchron may use third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.

10.3. Everchron may provide the ability to integrate the Service with third-party products and services that Subscriber may use at Subscriber’s option and risk. Access to and use of any third-party products and services are subject to the separate terms and conditions required by the providers of the third-party products and services. Subscriber agrees that Everchron has no liability arising from Subscriber’s use of any integrations or arising from the third-party products and services. Everchron can modify or cancel the integrations at any time without notice.

10.4. Subscriber acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. Subscriber agrees to accept that risk and will not hold Everchron liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only Everchron, with strict business reasons, may access and transfer the Content and only to provide Subscriber with the Service. Everchron will make reasonable efforts to provide notice to Subscriber prior to such access and transfer.

10.5. 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.

10.6. This Agreement constitutes the entire agreement between Authorized Users and Everchron and governs Authorized Users use of the Service, superseding any prior agreements between Authorized Users and Everchron (including, but not limited to, any prior versions of this agreement).

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

10.8. 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 terms of this 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.

10.9. Governing Law and Venue. This Agreement and your relationship with Everchron 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 in Los Angeles, California, and waive any objection as to the convenience of the forum. In any action to enforce or interpret this Agreement, the prevailing party shall be entitled to its attorney’s fees and costs.

10.10. 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.

11. Definitions.

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

(b) “Agreement” shall mean these Terms of Use, any separate agreement between a Subscriber and Evercrhon referencing these Terms of Use and the Privacy Policy located at https://everchron.com/privacy-policy.

(c) “Authorized Client” means an individual who has been invited to use the client-facing features of the Service in a limited capacity as a client of Subscriber.

(d) “Authorized User” shall mean an individual Subscriber or the partners, shareholders, officers, employees, and independent contractors of Subscriber who have been added to the account as users by Subscriber and any Authorized Client.

(e) “Confidential Information” shall mean the Content and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement, including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to either party’s premises.

(f) “Content” shall mean any information, documents and data that is provided, uploaded or posted to the Service or in connection with the Service by an Authorized User, Authorized Client or anyone else acting by, through or on behalf of Subscriber, including, without limitation, information about Authorized Users and Authorized Clients.

(g) “Exigency” shall mean a violation by Subscriber of this Agreement that (a) could disrupt (i) Everchron’s provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third-party access to the Service.

(h) “Service” shall mean any software, mobile applications, SaaS applications, and services provided by Everchron.

(i) “Subscriber” shall refer to the purchaser of the Services provided by Everchron.

EVERCHRON TERMS OF USE

(Last updated: August 27, 2018)

These Terms of Use govern your use of the software and services provided by Icebox Inc. d/b/a Everchron (“Everchron”). Capitalized terms not defined in context shall have the meanings ascribed in Section 11. By registering to use the Service, you are agreeing to be bound to this Agreement, and you may not use the Service unless you have registered and agree.

1. Use of the Service; Restrictions.

1.1. Authorized Users are granted a non-exclusive, non-transferable, limited license to access and use the Service for its intended purpose, subject to this Agreement. Except for this non-exclusive license, all ownership, license, intellectual property and other rights and interest in and to the Service remain solely with Everchron.

1.2. Authorized Users agree not to:

(a) reproduce, duplicate, copy, sell, resell or exploit access to the Service.

(b) modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Everchron, or any other software or service provided by Everchron;

(c) use the Service in any manner which may infringe, violate or misappropriate the rights of any party, or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement;

(d) use the Service to upload, post, host, or transmit unsolicited bulk email, viruses, self-replicating computer programs, or any code of a destructive or malicious nature;

(e) access or use the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service; or

(f) use the Service in any way to compete with Everchron or otherwise in any way, whether directly or indirectly, provide an competitor or potential competitor of Everchron with access to the Service.

1.3. Everchron reserves the right to modify, suspend or discontinue any feature, with or without notice, except that Everchron shall provide Subscriber with 15-days’ notice of any modification that materially reduces the functionality of the Service. In such instance, Subscriber may terminate any subscription and receive a prorated refund for the then-current term by providing Everchron with written notice prior to the expiration of the 15-day notice period. Otherwise, Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.

1.4. Everchron reserves the right to temporarily suspend access to the Service for operational purposes, maintenance, repairs or installation of upgrades. Everchron will provide reasonable notice, and will endeavor to provide no less than three days notice prior to any such suspension the occurs during business hours or with duration of 6 or more hours. Everchron shall use its best efforts to minimize disruption in connection with any operational suspension.

1.5. Subscriber grants to Everchron a non-exclusive, royalty free right during Subscriber’s use of the Service, to use the Confidential Information for the sole purpose of performing Everchron’ obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for Everchron to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 3.

2. Access; Administrators; APIs.

2.1. Only Authorized Users are permitted to use the Service. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.

2.2. The Administrator shall have the authority to administer the subscription and designate additional Authorized Users. Administrators are responsible for all use of the Service by Authorized Users associated with their subscription to the Service. The Administrator will promptly deactivate any inactive users.

2.3. Each Authorized User will establish a unique identifier to access and use the Service (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.

2.4. If available, with Everchron’s prior written consent, Authorized Users are permitted to access and use the Service using an Application Program Interface (“API”) subject to the following conditions:

(a) Everchron shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Everchron has been advised of the possibility of such damages), resulting from any use of an API or third-party products that access and use the Service via an API; and

(b) Excessive use of the Service through an API, as determined by Everchron in its sole discretion, may result in temporary or permanent suspension of access to the Service via an API.

3. Confidentiality; Security.

3.1. Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except in connection with performing its obligations under (or as otherwise permitted by) this Agreement.

3.2. Confidential Information may be provided 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 this Agreement, 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 this Agreement, 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.

3.3. The Service: (a) transmits passwords in a secure format; and (b) protect passwords entered for purposes of gaining access to the Service in accordance with industry practices. Subscriber is responsible for protecting the security of Usernames and passwords.

3.4. Subscriber will implement policies and procedures to prevent unauthorized use of Usernames and passwords, and will promptly notify Everchron upon suspicion that a Username and password has been lost, stolen, compromised, or misused.

3.5. Everchron will:

(a) adhere to industry standard security practices for transmitting and storing Content;

(b) employ industry standard information security practices and

(c) ensure its hosting service providers and facilities maintain industry standards for security and privacy.

3.6. Everchron shall report to Subscriber, with reasonable detail, any event that Everchron reasonably believes represents unauthorized access to, disclosure of, use of, or damage to such Subscriber’s Content (a “Security Incident”) within 72 hours of incident triage after learning of the Security Incident.

3.7. In the event of a Security Incident, the parties shall cooperate to: (a) identify the cause of the breach and to identify any affected Content; (b) investigate and prevent the recurrence of the Security Incident; and (c) mitigate any harmful effect of the Security Incident.

4. Payment and Subscription Changes.

4.1. Unless other arrangements are agreed to in writing by Everchron, Subscribers with paid subscriptions will provide Everchron with a valid credit card for payment of the applicable subscription fees.

4.2. Subscribers with monthly paying subscriptions will be charged upon the expiration of any applicable free trial period. Subscriptions canceled prior to the expiration of any trial period will not be charged. Monthly Subscribers will initially and thereafter be charged in advance each month. Annual Subscribers will thereafter be charged initially and annually on the anniversary date of the initial subscription charge. Except as expressly set forth in this Agreement, all charges are final and non-refundable, including payments made for annual subscriptions.

4.3. 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.

4.4. The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, 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 Service.

4.5. All prices are subject to prospective change upon notice.

4.6. Subscriber is responsible for paying all taxes associated with the subscription to the Service. 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.

4.7. Any and all payments under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Everchron receives an amount equal to the sum it would have received had no such deduction or withholding been made.

5. Cancellation and Termination.

5.1. Administrators may cancel subscriptions at any time by accessing the Service. No refunds will be made for the current term (whether monthly, yearly or other).

5.2. Everchron in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of this Agreement, (b) create an Exigency, or (c) if (i) Authorized Users use the Service in violation of this Agreement; (ii) Everchron provides Subscriber with commercially reasonable notice of this violation; (iii) the parties use reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to Everchron’s reasonable satisfaction within thirty (30) days of such notice, then Everchron reserves the right to suspend access to the Service.

5.3. Except for terminations pursuant to Section 5.2(a), upon cancellation or termination of a subscription, Content is made available to the Administrator or a designated Authorized User. Following a period of no less than ninety (90) days from the cancellation or termination of a subscription, all Content associated with such subscription will be irrevocably deleted from the Service.

5.4. Everchron may discontinue the Service in its entirety at any time, in which case it will provide a prorated refund for any prepaid current subscription terms.

6. Limitation of Liability.

6.1. SUBSCRIBER AGREES THAT THE LIABILITY OF EVERCHRON ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT SUCH SUBSCRIBER HAS PAID FOR THE SERVICE PURSUANT TO THIS AGREEMENT WITHIN THE SIX-MONTH PERIOD BEFORE THE DATE THE CLAIM(S) AROSE. SUBSCRIBER FURTHER AGREES THAT EVERCHRON IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. THESE LIMITATIONS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER EVERCHRON HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

6.2. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY EVERCHRON TO SUBSCRIBER 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.

6.3. Subscriber will solely be responsible for any damage and/or loss of Content contained in Subscriber’s technology which occurs as a result of Subscriber’s electronic equipment and/or Subscriber’s computer system.

6.4. The limitations in this Section 6 will not apply to the extent prohibited by applicable law.

7. Disclaimer of Warranties.

7.1. EVERCHRON HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH RESPECT TO ANY SERVICES PROVIDED BY EVERCHRON.

7.2. Everchron makes no warranty that the Service will be compatible with Subscriber’s hardware or software, or that these Service will be secure or error free. Nor does Everchron make any warranty as to any results that may be obtained from the use of the Service.

8. Indemnification.

8.1. Subscriber hereby agrees to indemnify and hold harmless Everchron from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following: (a) Authorized Users’ breach of any obligation stated in this Agreement, and (b) Authorized Users’ negligent acts or omissions. Everchron will provide prompt notice to Subscriber of any indemnifiable event or loss. 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.

8.2. Everchron shall defend, indemnify and hold Subscriber harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Subscriber by a third party: (a) arising out of or related to a breach by Everchron of its obligations under Section 3; or (b) alleging that the Service, or use of the Service as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of this Agreement, or a trademark of a third party, or involves the misappropriation of any trade secret of a third party; provided, however, that Subscriber:

(a) promptly gives written notice of the Claim to Everchron (provided, however, that the failure to so notify shall not relieve Everchron of its indemnification obligations unless Everchron can show that it was materially prejudiced by such delay and then only to the extent of such prejudice);

(b) gives 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) provides to Everchron, at Everchron’s cost, all reasonable assistance.

Everchron shall not be required to indemnify Subscriber in the event of: (x) modification of the Service by Subscriber in conflict with Subscriber’s obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (y) use of the Service in combination with any other product or service not provided by Everchron to the extent that the infringement or misappropriation would not have occurred but for such use; or (z) use of the Service in a manner not otherwise contemplated by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use.

9. Arbitration.

Any dispute arising out of or relating to this Agreement shall be subject to final and binding arbitration pursuant to the Judicial Arbitration & Mediation Service (“JAMS”) applicable rules. Such arbitration shall take place in Los Angeles, California, shall be presided over by a single arbitrator, and shall be conducted in English. Notwithstanding the foregoing, temporary, preliminary and emergency equitable may be sought and obtained in the concomitant court in Los Angeles, California, consistent with the California Arbitration Act.

10. Miscellaneous.

10.1. Technical support and training are available to Authorized Users with active subscriptions.

10.2. Subscriber acknowledges and agrees that Everchron may use third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.

10.3. Everchron may provide the ability to integrate the Service with third-party products and services that Subscriber may use at Subscriber’s option and risk. Access to and use of any third-party products and services are subject to the separate terms and conditions required by the providers of the third-party products and services. Subscriber agrees that Everchron has no liability arising from Subscriber’s use of any integrations or arising from the third-party products and services. Everchron can modify or cancel the integrations at any time without notice.

10.4. Subscriber acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. Subscriber agrees to accept that risk and will not hold Everchron liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only Everchron, with strict business reasons, may access and transfer the Content and only to provide Subscriber with the Service. Everchron will make reasonable efforts to provide notice to Subscriber prior to such access and transfer.

10.5. 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.

10.6. This Agreement constitutes the entire agreement between Authorized Users and Everchron and governs Authorized Users use of the Service, superseding any prior agreements between Authorized Users and Everchron (including, but not limited to, any prior versions of this agreement).

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

10.8. 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 terms of this 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.

10.9. Governing Law and Venue. This Agreement and your relationship with Everchron 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 in Los Angeles, California, and waive any objection as to the convenience of the forum. In any action to enforce or interpret this Agreement, the prevailing party shall be entitled to its attorney’s fees and costs.

10.10. 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.

11. Definitions.

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

(b) “Agreement” shall mean these Terms of Use, any separate agreement between a Subscriber and Evercrhon referencing these Terms of Use and the Privacy Policy located at https://everchron.com/privacy-policy.

(c) “Authorized Client” means an individual who has been invited to use the client-facing features of the Service in a limited capacity as a client of Subscriber.

(d) “Authorized User” shall mean an individual Subscriber or the partners, shareholders, officers, employees, and independent contractors of Subscriber who have been added to the account as users by Subscriber and any Authorized Client.

(e) “Confidential Information” shall mean the Content and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement, including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to either party’s premises.

(f) “Content” shall mean any information, documents and data that is provided, uploaded or posted to the Service or in connection with the Service by an Authorized User, Authorized Client or anyone else acting by, through or on behalf of Subscriber, including, without limitation, information about Authorized Users and Authorized Clients.

(g) “Exigency” shall mean a violation by Subscriber of this Agreement that (a) could disrupt (i) Everchron’s provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third-party access to the Service.

(h) “Service” shall mean any software, mobile applications, SaaS applications, and services provided by Everchron.

(i) “Subscriber” shall refer to the purchaser of the Services provided by Everchron.