Welcome to Everchron. Please read these terms of service (these “Terms”) carefully as they form a contract between you and Icebox Inc., a Delaware corporation d/b/a Everchron (“Company,” “Everchron”, “we”, “us”, or “our”) that governs your access and use of: (i) the hosted document storage and analysis solution provided by Company for online storage, sharing, processing, and analysis of files, work product, attorney-client communications, materials, data, text, audio, video, images or other content (collectively, “Content”); (ii) software provided or made available by Company (“Software”); (iii) the Product, as defined in Section 1.1 below; (iv) the Everchron websites or applications; and, (v) any written or electronic use or features guides or other documentation provided or made available by Company (the “User Guides”) (collectively, the “Service(s)”)
By clicking “I Agree,” registering, or using the Services, you agree to these Terms. Please read these Terms carefully as they form a binding agreement.
If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to Company that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Services. You may use the Services only in compliance with these Terms and only if you have the power to form a contract with Company and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES. Should you have any questions concerning this Agreement, please contact firstname.lastname@example.org
Please note that Company does not provide warranties for the Services. This contract also limits our liability to you. See Section 8 for details.
1.1 "The Product" means any version of the Everchron web or mobile applications, software as a service (SaaS) web and mobile solutions provided by the Company for activities such as managing, analyzing, commenting, storing, organizing, and collaborating around litigation information, documents, data, events, work product and research. The Product includes, but is not limited to, systems for creating and managing chronologies of evidentiary documents, managing and analyzing lists of players or witnesses, a master file containing litigation case filings, correspondence and discovery, a team calendar, and a news feed containing a centralized stream of activity, notifications, and attorney comments.
1.2 “Confidential Information” means all information and materials furnished by either party which: (a) if in written format is marked as confidential, or (b) if disclosed verbally is noted as confidential at time of disclosure, or (c) in the absence of either (a) or (b) is information which a reasonable party would deem to be non-public information and confidential. Confidential Information includes all information disclosed at any time before, after or at the time of the execution of this Agreement relating to the Services including, but not limited to, any techniques or processes used in connection with the product or system, as well as any and all intellectual and intangible property rights of Company related to its business, customers, products, marketing and sales plans, financial statements, development plans, strategies, know-how, trade secrets, ideas, concepts, designs, drawings, charts and the like, as well as any information relating to released or unreleased Company software or hardware products, the marketing or promotion of any Company product, the user interface, features, and design of the Software or Product, including but not limited to the Product, and information received from others that Company is obligated to treat as confidential. Confidential Information includes all Intellectual Property Rights. Confidential Information disclosed to by or regarding any Company subsidiary or affiliate and/or agent is covered by this Agreement. Results of any tests or usages carried out by You related to the Services shall also be considered Confidential Information.
1.3 “Intellectual Property Rights” means all of Company’s patent rights, copyright rights, moral rights, trade secret rights, rights to trademarks and service marks, know-how, mask works and all other intellectual and industrial property rights, whether or not registered or perfected or reduced to practice, anywhere in the world, and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues for any of the foregoing.
3. GRANT OF LIMITED LICENSE
3.1 Limited License. Subject to the terms and conditions of this Agreement, Company hereby grants you a limited, personal, non-exclusive, non-transferable, non-assignable license to use the Services solely for internal testing and evaluation of the Services. No right or title is granted to you, either directly or indirectly, to commercially exploit or otherwise use the Services for any purpose other than as expressly provided herein. All rights not expressly granted under this Agreement are reserved to Company.
3.2 Your Account. To obtain access to certain Services, you may be required to obtain an account with Company (become a “Registered User”), by completing a registration form and designating a user ID and password. Until you apply for and are approved for an Everchron account, your access to the Services will be limited to the areas of the Services, if any, that Company makes available to the general public. When registering with Company you must: (a) provide true, accurate, current and complete information about yourself as requested by the Service's registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Company may withdraw such approval at any time in its sole discretion, with or without cause.
Only you may use your Everchron account. You must keep your account and passwords confidential and not authorize any third party to access or use the Services on your behalf, unless we provide an approved mechanism for such use. You must contact us right away if you suspect misuse of your account or any security breach in the Services. You are responsible for all activities that take place with your account. Company will not be liable for any loss or damage arising from any unauthorized use of your accounts.
If a third party such as an employer gave you your account, that party has rights to your account and may manage your account, reset your password, or suspend or cancel your account; view your account's usage and profile data, including how and when your account is used; and read or store Content in your account. If you are an individual Registered User of the Services, and the domain of the primary email address associated with your account is owned by an organization and was assigned to you as an employee, contractor or member of such organization, and that organization wishes to establishes a commercial relationship with us and add your account to such relationship, then, if you do not change the email address associated with your account, your account may become subject to the commercial relationship between Company and such organization and controlled by such organization.
3.3 Restrictions. Except as expressly provided herein, you shall not sell, license, rent, lend, distribute or otherwise transfer the Services or any derivative works thereof. Except as expressly provided herein, shall not copy, modify, prepare derivative works of, reverse assemble, disassemble, decompile, decrypt, or otherwise attempt to derive source code from the Services, or allow any third party to do so. Except as expressly set forth in this Agreement, you acquire no rights to any Company Confidential Information, Company property, or the Services, including any derivatives thereof, or any source code in any of the foregoing. The limited license granted herein is personal to you. In the event that you are a division or subsidiary of a larger organization or the affiliate of a smaller organization, additional licenses for evaluation by your subdivisions or affiliates must be separately obtained from Company.
3.4 Ownership, Title, and Intellectual Property Notices
3.4(a) General Ownership of Site and Services You agrees and acknowledges that all right, title and interest to software components, any copies thereof or any modification, change, improvement, adaptation, features, enhancement, Feedback (as defined below) or translation of the Services developed under this Agreement or as a result of your use, testing and/or evaluation of the Services, and all rights in and to any patent, trademark, service mark, trade secret, know-how, copyright or other Intellectual Property Rights developed hereunder and/or incorporated in the Services, shall at all times remain the sole property of Company. You hereby irrevocably assign to Company all right, title and interest worldwide in any such modification, change, improvement, adaptation, features, enhancement, Feedback, translation, patent, trademark, service mark, trade secret, know-how, copyright or other Intellectual Property Rights. You agree to provide further assistance to Company to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned. You hereby irrevocably designate and appoint Company as your agent and attorney-in-fact to act for and in your behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by you.
3.4(b) Copyright. The compilation of all content included in or made available through any Service is the exclusive property of Company and protected by U.S. and international copyright laws. All contents of the Site and Services including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © 2013 Icebox Inc., and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved.
3.4(c). Trademarks. Everchron and the Everchron logo are without limitation, either trademarks, service marks or registered trademarks of Company and may not be copied, imitated, or used, in whole or in part, without Company’s prior written permission. All other trademarks not owned by Company that appear in any Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Everchron.
3.4(d) Patents. Company may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Service. Unless we have granted you licenses to our intellectual property in these Terms, our providing you with the Service does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.
3.5 Feedback. You will promptly notify Company of any errors or deficiencies in the Services, compatibility problems, provide suggestions for improvements and other information regarding the Services (collectively, “Feedback”). You acknowledge that Company may or may not incorporate Feedback into the general release version of the Services at Company’s sole discretion. You acknowledges and agree that: (a) any use of the Service is at your own risk; (b) Company does not warrant that it will correct defects in the Service; (c) each Party shall bear all of its own expenses associated with this Agreement; and (d) Company is under no obligation or duty to generally release the Service or any feature contained therein. All Feedback is the sole property of Company and you agree that Company is free to use the Feedback without any restriction or compensation to you. Company does not waive any rights to use similar or related ideas, suggestions or feedback previously known to Company, or developed by its employees or agents, or obtained from sources other than you.
4. USE OF CONTENT AND CONTENT SYNCING SERVICES.
4.1 Content. Except for material that we license to you, we do not claim ownership of any Content that is transmitted, stored, or processed in your account(s). We also do not control, verify, or endorse the Content that you and others make available on the Service.
We provide functions that allow you to control who may access your Content. If you enable the features that allow you to share the Content with others, anyone you have shared content with (including the general public, in certain circumstances) may have access to your Content.
You hereby grant Company and its contractors the right, to use, modify, adapt, reproduce, distribute, display and disclose Content posted on the Service solely to the extent necessary to provide the Service or as otherwise permitted by these Terms. You represent and warrant that: (a) you have all the rights in the Content necessary for you to use the Service and to grant the rights in this Section; and, (b) the storage, use or transmission of the Content does not violate any law or these Terms.
You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access. Company will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.
You must immediately notify Company in writing of any unauthorized use of any (a) Content (b) any Account or (c) the Service that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide Company with such cooperation and assistance related to any such unauthorized use as Company may reasonably request.
4.2 Not Legal Advice. No content stored in, or obtained through, the Services should be considered legal advice, or be relied upon as a substitution for legal advice provided by a qualified and licensed attorney. Company, its licensors, affiliates, shareholders, directors, officers, employees, agents and partners shall not be responsible or liable in any way for the accuracy, usefulness or availability of any such information transmitted or made available via the Services. Such content is not intended to be legal advice or form an attorney-client relationship. Content stored in, or obtained through, the Services is provided for informational purposes only, with no assurance that the content is true, correct, or accurate. No action should be taken, delayed, or deferred based on the content.
4.3 Content Stored In The United States. The Services are provided from the United States. By using and accessing the Service, you understand and consent to the storage and processing of the Content and any other personal information in the United States.
4.4 Third Party Services And Content. All transactions using Company’s services are between the transacting parties only. The Services may contain features and functionalities linking you or providing you with certain functionality and access to third party content, including but not limited to websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole; you acknowledge that we are not responsible for such content or services. We may also provide some content to you as part of the Services. However, Everchron is not an agent of any transacting party, nor or we a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Similarly, we are not responsible for any third party content you access with the Services, and you irrevocably waive any claim against us with respect to such sites and third-party content. Everchron shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party related to the Services, including the delivery of and payment for goods and services. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our breaches.
5. ACCEPTABLE USE
5.1. Use of Services. You must not use the Services to harm others or the Services. For example, you must not use the Services to harm, threaten, or harass another person, organization, or Company and/or to build or assist anyone in building, a similar service or website. You must not: damage, disable, overburden, or impair the Services (or any network connected to the Services); resell or redistribute the Services or any part of it; use any unauthorized means to modify, reroute, or gain access to the Services or attempt to carry out these activities; or use any automated process or service (such as a bot, a spider, or periodic caching of information stored by Company) to access or use the Services. You further agree to solely use the Product in accordance with the purposes described in this Agreement. You represent and warrant that you shall at all times refrain from engaging in any illegal, unfair, deceptive or unethical business practices whatsoever, whether with respect to the Services or otherwise.
In addition, you agree that you will not and will not encourage or assist any third party to:
- modify, alter, tamper with, repair or otherwise create derivative works of any Software;
- reverse engineer, disassemble or decompile the software used to provide or access the Services, including the Software, or attempt to discover or recreate the source code used to provide or access the Services, except and only to the extent that the applicable law expressly permits doing so;]
- take any action that provides any competitor or potential competitor with access to the Services
- sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;
- remove, obscure or alter any proprietary rights notice pertaining to the Service;
- access or use the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
- (use the Service in connection with the operation of nuclear facilities, aircraft navigation, communication systems, medical devices, air traffic control devices, real time control systems or other situations in which the failure of the Service could lead to death, personal injury, or physical property or environmental damage;
- use the Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through Company unless your account is subject to a small office, home office, business or enterprise subscription; (iv) store or transmit inappropriate Content, such as Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (iv) store or transmit any Content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;
- interfere with or disrupt servers or networks used by Company to provide the Service or used by other users' to access the Service, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user's full use and enjoyment of any Software or the Service;
- access or attempt to access Company’s other accounts, computer systems or networks not covered by these Terms, through password mining or any other means;
- cause, in Company's sole discretion, inordinate burden on the Service or Company’s system resources or capacity; or
- share passwords or other access information or devices or otherwise authorize any third party to access or use the Software or the Service.
Company reserves the right, in its sole discretion, to deactivate, change and/or require you to change your Everchron user ID and any custom or vanity URLs, custom links, or vanity domains you may obtain through the Services for any reason or for no reason. Company may exercise such right at any time, with or without prior notice. We will make all judgments concerning the applicability of these guidelines in our sole and exclusive discretion. We reserve the right, in our sole discretion, to determine whether and what action to take in response to each such notification, and any action or inaction in a particular instance will not dictate or limit our response to a future complaint. We will not assume or have any liability for any action or inaction with respect to any Content.
Any misuse of the Services shall constitute cause for Company to immediately terminate this Agreement.
6. UPDATES TO THE SERVICE
6.1 Updates. Company reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Service at any time. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.
7.1 PAYMENTS AND REFUNDS
The fees applicable for the Services (“Fees”) are available on the Site and/or in Company’s then-current published price list. The price stated for the Service excludes all taxes and charges, unless stated otherwise. You are responsible for any taxes and for all other charges (for example, data charges and currency exchange settlements). You will pay the Fees in the currency Company quoted for your account. Company reserves the right to change the quoted currency at any time.
In addition to any Fees, you may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.
You must be authorized to use the payment method that you enter when you create a billing account. You authorize us to charge you for the Service using your payment method and for any paid feature of the Service that you choose to sign up for or use while these Terms are in force. We may bill: (a) in advance; (b) at the time of purchase; (c) after purchase; or (d) on a recurring basis for subscription Services. Also, we may charge you up to the amount you have approved, and we will notify you in advance of the difference for recurring subscription Services. We may bill you simultaneously for more than one of your prior billing periods. Once we have informed you that the Service will be provided indefinitely or automatically renewed, we may automatically renew your Service and charge you for any renewal term.
You must keep all information in your billing account current. You can access and modify your billing account information using the Administrative Panel. You may change your payment method at any time. If you tell us to stop using your payment method and we no longer receive payment from you for the paid Service, we may cancel that Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.
We will notify you in advance, either through the Service or to the email address you have most recently provided to us, if we change the price of the Service. If there is a specific length and price for your Service offer, that price will remain in force for that time. After the offer period ends, your use of the Service will be charged at the new price. If your Service is on a period basis (for example, monthly) with no specific length, we will notify you of any price change at least thirty (30) days in advance. If you do not agree to these changes, you must cancel and stop using the Service via an email to email@example.com (with cancellation confirmation from a Company representative) no later than fourteen (14) days prior to the conclusion of your current payment term, whether monthly, yearly, or otherwise. If you cancel, your Service ends at the end of your current Service period or, if we bill your account on a period basis, at the end of the period in which you canceled. If you fail to cancel as required, we will automatically renew the Service for the same term and will charge your payment information on file with us commencing on the first day of the renewal term.
Payments for (a) all accounts registered to pay via credit card are due the date the invoice is posted on your account; and (b) all accounts registered to pay via check, wire-transfer, or Automated Clearing House (ACH), are due within fifteen (15) days of billing date unless otherwise agreed-to by the parties in writing. Notwithstanding the foregoing, the last day of a trial period signifies the due date of the first payment. If payment is not received by Company on the due date, your account will be frozen, inaccessible, and all shared links will be turned off until all outstanding payments have been processed by Company. Users retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. If not complied with, at the end of thirty (30) days, your account will be deactivated and all files will no longer be retrievable.
Unless we notify you otherwise, if you are participating in any trial period offer, you must cancel the Service by the end of the trial period to avoid incurring new charges. If you do not cancel your Service and we have told you the Service will convert to a paid subscription at the end of the trial period, you authorize us to charge your payment method for the Service.
Except as specifically set forth in this section, all Services are prepaid for the period selected (monthly, yearly or otherwise) and are non-refundable. This includes accounts that are renewed. If you are currently on our free trial, you may cancel or downgrade your account, free of charge, at any time until fourteen (14) days after your account was created. (The day of creation constitutes the first day of the trial.)
If you are a non-trial user you will not be issued a refund for your most recent (or any previous) billing, unless you are a NON-TRIAL annual subscriber, in which event you may obtain a refund for a renewal fee only if you do so within thirty (30) days of the day on which you were charged for the renewal of your account; in such an event, only a partial refund equivalent to 80% of the annual renewal fee will be returned. All cancellations and downgrades are processed automatically.
Except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1 percent of the unpaid amount each month or the maximum rate permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time.
8.1 Use. Each party understands that the other party has or may disclose Confidential Information in the course of exercising its rights or performing its obligations under this Agreement. As between the parties, the Confidential Information of each party will remain its sole property. Confidential Information will be used by the recipient party only for purposes of, or as otherwise authorized by, this Agreement. Except as expressly provided herein, each party will hold the Confidential Information of the other party in strict confidence and protect such Confidential Information from disclosure using the same care it uses to protect its own confidential information of like importance, but not less than reasonable care. Except as expressly provided herein, no Confidential Information will be disclosed by the receiving party without the prior written consent of the other party, except that each party may disclose this Agreement and the other party’s Confidential Information to its directors, employees, attorneys, agents, auditors, insurers and subcontractors who require access to such information in connection with their employment or engagement and who are obligated to keep such information confidential in a manner no less restrictive than set forth herein. The party employing or engaging such persons is responsible and liable for their compliance with such confidentiality obligations. Under no circumstances may you give any competitor of Company access to the Confidential Information of the Company.
8.2 Treatment. The parties recognize and agree that the use or disclosure of any Confidential Information of a party in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irrevocable damage for which adequate remedy at law will not be available. Accordingly, each party shall be entitled to seek temporary and/or permanent injunctive relief against such breach or violation from any court of competent jurisdiction immediately upon request, without the need to obtain a bond or other security. The right of each party to seek injunctive relief shall not limit in any manner that party’s right to seek other and/or additional remedies at law or in equity. If Confidential Information is required to be disclosed by law or a governmental authority, including pursuant to a subpoena or court order, such Confidential Information may be disclosed, provided that the party required to disclose the Confidential Information: (a) promptly notifies the disclosing party of the disclosure requirement; (b) cooperates with the disclosing party’s reasonable efforts to resist or narrow the disclosure and to obtain an order or other reliable assurance that confidential treatment will be accorded the disclosing party’s Confidential Information; and (c) furnishes only Confidential Information that the party is legally compelled to disclose according to advice of its legal counsel. Upon written request, or at the expiration or termination of this Agreement, all documented Confidential Information (and all copies thereof) owned by the requesting party will be returned or destroyed by the receiving party, with written certification thereof delivered to the other party.
9. NO WARRANTY
COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY COMPONENT THEREOF. THE SERVICES IS PROVIDED “AS IS”. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS REGARDING THIS AGREEMENT OR THE SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING BUT NOT LIMITED TO ALL IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. COMPANY DOES NOT WARRANT THAT THE SERVICES FURNISHED UNDER THIS AGREEMENT IS ERROR FREE OR WILL PERFORM ACCORDING TO ANY SPECIFICATIONS. COMPANY SHALL NOT BE HELD LIABLE IN ANY WAY FOR THE QUALITY, PERFORMANCE, ACCURACY, BEHAVIOR, COMPATIBILITY, RELIABILITY OR USE OF THE SERVICES. ALL USE OF AND RELIANCE ON THE SERVICES IS YOUR SOLE RESPONSIBILITY AND AT YOUR SOLE RISK.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY OR ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND RELATING TO THE SERVICES OR USE OF ANY OPEN SOURCE SOFTWARE THAT MAY BE INCORPORATED THEREIN, REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH OF A CONTRACTUAL, STATUTORY OR COMMON LAW DUTY OF ANY KIND. IN NO EVENT SHALL COMPANY OR ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OF GOODWILL, LOSS OF PROFITS OR REVENUES, LOSS OF USE, INTERRUPTION OF BUSINESS OR LOSS OF DATA RESULTING FROM USE OF THE SERVICES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S MAXIMUM LIABILITY IN ALL CIRCUMSTANCES FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND YOUR MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO AN AGGREGATE AMOUNT OF THE LESSER OF THE TOTAL AMOUNT PAID TO EVERCHRON BY YOU FOR USE OF THE SERVICES OR TWENTY FIVE THOUSAND DOLLARS ($25,000). YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL PROVISION OF THIS AGREEMENT AND THAT COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT AND WOULD NOT HAVE PROVIDED THE SERVICES HEREUNDER HAD ITS POTENTIAL LIABILITY BEEN IN ANY WAY HIGHER THAN THE AFORESAID LIMITED AMOUNT.
11. TERM AND TERMINATION
11.1 Termination. We reserve the right, to temporarily suspend or terminate your access to the Services at any time in our sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Service for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause Company to have legal liability or disrupt others' use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity or bandwidth; or (f) unplanned technical problems and outages. If, in Company’s determination, the suspension might be indefinite and/or Company has elected to terminate your access to the Services, Company will use commercially reasonable efforts to notify you through the Services. You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to the Content that is stored with the Service.
Upon termination by Company, for reasons other than cause, or at your direction, you may request access to your Content, which we will make available for an additional fee. You must make such request with thirty (30) days following termination. Otherwise, any Content you have stored with the Service may not be retrievable, and we will have no obligation to maintain any data stored in your account.
In addition to other termination provisions, if your account it not currently subject to a paid subscription plan with us, we at our discretion may terminate your account if: (a) you do not engage in any activity in your account within thirty (30) days after becoming a Registered User, or (b) you do not engage in any activity in your account for any period of one-hundred and twenty (120) consecutive days. In the event of such termination, any Content you may have stored will be lost.
11.2 Return of Services. Upon the termination of this Agreement, you shall immediately cease use of the Services, and return the Services and any related documents, including Confidential Information, to Company at your expense. You shall destroy or delete any copies of the Services and related documents, including Confidential Information, at Company’s request and send written confirmation of such action to Company within ten (10) days thereof, which shall be signed by an authorized officer of yours.
11.3 Survival. The obligations stipulated in Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 shall survive any expiration or termination of this Agreement.
12.1 Assignment. We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. This contract shall not be assigned by you whether voluntarily or involuntarily or by operation of law, in whole or in part, to any party without the prior written consent of Company. No such assignment by you howsoever occurring shall relieve you of your obligations hereunder. Any assignment without the prior written consent of Company shall be null and void, and shall be deemed a material breach of this Agreement.
12.2 Use of Name. You acknowledge and agree that Company may identify you as a user of the Everchron Software Application and may use your name, trademarks, and business description for marketing purposes, including but not limited to, posting your name, corporate name, logo, and similar such information on Company’s web site and on marketing materials.
12.3 Waiver. Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of such party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice such party’s rights to take subsequent action.
12.4 Notices. When you use any Service, or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this site or through any other Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. All other notices shall be sent by email to the other party’s mailbox where practicable, or shall be given in writing, and shall be deemed to have been duly given when emailed, delivered by hand, posted by registered first class mail (airmail if international) or sent via recognized overnight couriers or sent by fax to the party to which such notice is required to be given. Notices shall be deemed received on the earlier of the following: (a) notices delivered by hand or sent by fax shall be deemed received the first business day following such delivery or sending; (b) notices which have been posted or sent via overnight courier shall be deemed received on the second business day following posting (third if international), and (c) notices delivered by email or posted on this site shall be deemed received when sent or posted.
12.5 Headings and Construction. The headings to the clauses, sub-clauses and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted the Agreement or any provision thereof. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement.
12.6 Changes To These Terms. We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on the Everchron website. Any changes will be effective upon posting the revised version of these Terms on the Services (or such later effective date as may be indicated at the top of the revised Terms). If in our sole discretion we deem a revision to these Terms to be material, we will notify you via the Services and/or by email to the email address associated with your account. Notice of other changes may be provided via www.everchron.com (the “Site”) or related Everchron blogs, corporate, or marketing websites. Therefore, we encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated. Your continued access or use of any portion of the Service constitutes your acceptance of such changes. If you do not agree to any of the changes, we are not obligated to keep providing the Service, and you must cancel and stop using the Service.
12.7 Relationship of Parties. The parties are independent contractors. Nothing contained herein shall be deemed to create an agency, joint venture or partnership relation between the parties hereto. It is understood and agreed that you are not, by reason of this Agreement or anything herein contained, constituted or appointed the agent or representative of Company for any purpose whatsoever, nor shall anything herein contained be deemed or construed as granting to you any right or authority to assume or to create any obligation or responsibility, express or implied, for, on behalf of, or in the name of Company, or to bind Company in any way or manner whatsoever.
12.8 Governing Law. The rights and obligations of the parties and the interpretation and performance of this Agreement shall be governed by the laws of the state of California, without giving effect to the principles of conflict of laws. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will, only to the extent required by applicable law, be subject to the laws of your state of residence in the United States, or, if you live outside the United States, the laws of the country in which you reside. Any disputes arising out of or relating to this Agreement shall be brought and heard in the concomitant state or federal court located in Los Angeles, California, and the parties irrevocably consent to the jurisdiction of such courts, and waive all arguments based on venue and the convenience of the forum.
12.9 Export. You understand and agrees that you have no right to transfer the software, products, technology or technical information provided under this Agreement. To the extent you exports, re-exports, or imports software, technology, or technical data licensed or provided hereunder, you assumes sole responsibility for such actions.
12.10 Severability. Whenever possible, each provision of the Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of the Agreement.
12.11 Entire Agreement. This Agreement supersedes any arrangements, understandings, promises or agreements made or existing between the parties hereto prior to or simultaneously with this Agreement, and this Agreement constitutes the entire understanding between the parties hereto.
12.12 Claims. Claims must be filed within one year. You must bring any claim related to these Terms or the Service within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it is not filed in time, the claim is permanently barred.
12.13 Government Use. If you are a U.S. government entity, you acknowledge that any Software and User Guides that are provided are “Commercial Items” as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.