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Service Terms Review – revised – clean
https://www.everflow.io/terms
Revised version as at 12-21-20
Everflow Service Terms
(Last updated December 2020)
The following terms and conditions (the "Service Terms"), together with the Order Form(s) to which these Service Terms are attached or incorporated, constitute the agreement (“Agreement”) between Everflow Technologies Inc. with its principal place of business at 530 Showers Drive Suite 7-302 Mountain View, CA 94040, USA (“Everflow”), and the customer identified in the Order Form (“Customer”).
1. PARTIES
In these Service Terms, the words "Everflow," "we," and "us" refer to Everflow Technologies Inc. The words "Customer" and "you" refer to the subscriber to the Platform Services as defined in the Order Form, whether an individual, corporation, or other entity. You may not use the Platform Services unless you accept these Service Terms and have the power and legal right to form a contract with us. Any individual subscribing to or using the Platform Services in the name of a company or other organization represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Service Terms.
2. DEFINITIONS
The following terms and any others defined in these Service Terms will be interpreted according to the definitions given.
1. "Authorized User" means you (if you are an individual) or an individual employee or agent of yours who has been assigned unique credentials to access and use the Platform Services, whether or not that individual is accessing or using the Platform Services at any particular time.
2. "Everflow API" means the application programming interfaces provided by Everflow as a mechanism for access to the Platform Services.
3. “Everflow Materials” means information and materials in any format provided by Everflow, including, without limitation, documentation, templates, instructions, professional services, FX Data (as defined herein), and reference materials and guidance.
4. “Everflow Platform” means Everflow’s cloud platform that facilitates the Platform Services (as defined herein).
5. “FX Data” means foreign exchange (“FX”) data from Open Exchange Rates Ltd. (https://openexchangerates.org/) and related currency conversions and calculations, provided by the Everflow Platform.
6. "Order Form" means Everflow's online or written order form or account setup form, as agreed to by Customer and Everflow, that specifies the pricing for the use of the Platform Service, and that references these Service Terms.
7. "Partner" means any third party authorized by Customer to access and use the Platform Services, or which supplies advertising or advertising inventory to Customer in connection with Customer's use of the Platform Services.
8. "Platform Services" means the web-based advertising network, affiliate tracking, targeting, reporting and analytics services included in the services to be supplied by Everflow, as defined in the Order Form (and any applicable service description referenced in the Order Form) or separate terms that reference the Service Terms, that are facilitated by the Everflow Platform. For clarification, Platform Services include the Everflow EverXChange and Everflow Materials.
3. PLATFORM SERVICES
1. Authorization. Subject to your compliance with the terms and conditions of these Service Terms, Everflow will provide your Authorized Users with access to and use of the Platform Services which you have purchased and for which you pay, solely for your internal business purposes and in accordance with Everflow's relevant end-user documentation. The Platform Services and Everflow API may be used only in accordance with the documentation and specifications provided by Everflow. You and your Authorized Users will access the Everflow API and Platform Services using the login credentials and Everflow API Keys assigned to you by Everflow. Everflow may monitor your use of the Everflow API to ensure quality, improve Everflow products and services, and verify your compliance with these Service Terms. Your use of the Platform Services is further subject to any usage limitations indicated in the Order Form or in Everflow's applicable service description referenced therein or provided by Everflow.
2. Maintenance and Support. If the Order Form or Everflow's associated service description provides for Customer to receive maintenance and/or technical support in connection with the Platform Services, then (unless otherwise set forth in the Order Form or service description): (i) such maintenance will consist of access to new features or performance improvements in the Platform Services if and when Everflow makes any such features or improvements generally available to its subscriber base at no additional charge, and (ii) such technical support will consist of first-level telephone or email assistance in accordance with Everflow's Service Level Agreement (“SLA”), attached hereto as Exhibit A and incorporated herein by reference.
3. Restrictions. You may not: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Platform Services or any associated software or materials; (ii) provide any third parties with direct access to the Everflow API or Platform Services; (iii) provide any third parties other than Partners with access to any of the Platform Services, or use any of the Platform Services for time sharing or similar purposes for the benefit of any third party; (iv) remove any copyright or proprietary notices contained in the Platform Services or any output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure or monitoring system provided or used by Everflow in connection with the Platform Services or Everflow API; (vi) access the Platform Services via any bot, web crawler or non-human user except to the extent the Everflow API permits such access; (vii) introduce into the Platform Services any software, virus, worm, "back door," Trojan Horse, or similar harmful code; (viii) access or use (or permit a third party to access or use) the Platform Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Platform Services or for any other benchmarking or competitive purposes; or (ix) interfere or attempt to interfere in any manner with the proper workings of the Everflow API or Platform Services, or engage in any activities that adversely affect the functionality or performance of the Everflow API or Platform Services. All rights in the Platform Services not expressly granted herein are reserved.
4. Third Party Integrations. Everflow offers Customers the option of sending data and information to, and receiving data and information from analytics or other services provided by third parties ("Third Party Integration Providers"). Customer is solely responsible for establishing a contractual relationship with any such Third Party Integration Providers, independently of Everflow, and complying with the terms of such contractual relationship. Everflow shall not be responsible or liable for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data or any other harm to Customer or any other party caused by any Third Party Integration Providers, including without limitation, by Everflow's integration with such Third Party Integration Providers and the use of any data or information received from such Third Party Integration Providers. For clarification, Everflow shall not be responsible for any Third Party Integration Provider; Customer agrees that any claim relating to a Third Party Integration Provider may only be made against the related Third Party Integration Provider.
5. Third Party Services. Customer acknowledges that in connection with Platform Services, the Everflow Platform may facilitate the delivery of services of third parties service providers (“Third Party Service”) (“Third Party Service Provider”), where applicable, and agreed to in writing by the Customer, Third Party Service Provider and Everflow. Any Third Party Service shall be performed by the corresponding Third Party Service Provider in accordance with the corresponding Third Party Service Provider terms (“Third Party Terms”), to which Customer shall agree in advance, independently of Everflow; the Third Party Service Provider shall remain directly responsible to Customer for the performance of its Third Party Service. For clarification, Everflow shall not be responsible for any Third Party Service Provider or Third Party Service; Customer agrees that any claim relating to a Third Party Service Provider or Third Party Service may only be made against the related Service Third Party.
6. Third Party Service Provider Fees. Where applicable, and agreed to in writing by the Customer, Third Party Service Provider and Everflow, the Everflow Platform may facilitate the invoicing of Customer for its Third Party Service and Customer’s corresponding payments to the subject Third Party Service Provider.
4. CUSTOMER OBLIGATIONS
1. Responsibilities in Using Platform Services. You are responsible for: (i) maintaining the confidentiality of any user IDs, passwords and other credentials associated with your account, (ii) all activities that occur with respect to your account, (iii) your use of the Platform Services and compliance with these Service Terms, and (iv) any Customer-furnished data. Further, you acknowledge and agree that you shall remain liable for all actions and omissions of your Authorized Users and Partners hereunder or under any applicable separate agreement.
2. Advertising Obligations. You shall not, and shall cause each of your Partners not to, directly or indirectly, in connection with their business practices or activities, or in connection with any advertisements or properties on which advertisements appear: (i) facilitate or promote illegal, deceptive, or fraudulent activity, or contain content that is illegal; (ii) contain content that is or promotes activities that are, in Everflow's sole discretion, likely to generate liability for Everflow or negatively affect Everflow's reputation; (iii) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; or (iv) use the Platform Services to target advertisements to children under the age of 13 years (16 years in the EU).
3. Correction; Suspension. If Customer's use of the Everflow API or Platform Services, or any advertising or advertising inventory properties are deemed by Everflow, in its sole discretion, to not meet the letter or spirit of the standards set forth in this Agreement, Everflow may request that Customer make changes to bring its practices and/or such content and materials into compliance. If Customer fails to make the necessary changes immediately upon request, and without limiting any of the other remedies available to Everflow at law or in equity, Everflow is authorized to remove the content or materials, and/or suspend any applicable campaign or Customer's access to the Platform Services, without liability to Customer, in its sole discretion. Customer agrees and acknowledges that Everflow shall have the right to audit, from time to time, Customer's use of the Everflow API, Platform Services, and the content and material Customer is promoting, distributing and/or displaying on or through the Platform Services or in connection with the use thereof. Everflow reserves the right to immediately suspend, in whole or in part, Customer's access to the Platform Services and Everflow's provision of the Platform Services in order to prevent imminent harm to Everflow or a third party, without liability to Customer, in its sole discretion..
5. DATA AND OWNERSHIP
1. "Customer Data" consists of information input into the Platform Services by Customer or Customer's Authorized Users, any data collected by Customer through the use of the Platform Services, including without limitation Personal Data as defined herein, or any Partner, Customer, Authorized User or Partner behavior on the Platform Services, as captured by the Platform Services. Customer shall not collect and shall not enable the collection of Customer Data from individuals in connection with the utilization of the Platform Services without the prior express consent of such individuals in compliance with applicable laws and regulations. With respect to Customer Data collected by Customer from individuals, Customer will collect, process and disclose, and direct Everflow to process and disclose, such Customer Data only in accordance with all applicable laws and regulations, its privacy policy, and the requirements of these Service Terms.
2. Personal Data. Any Customer Data consisting of personal information or personal data, as such terms are defined under applicable legislation and regulations, including the EU General Data Protection Regulation 2016/679 or the California Consumer Privacy Act (“Personal Data”, “GDPR”, and “CCPA” respectively), and the processing thereof, shall be governed under the terms and conditions set forth herein and in the Everflow Data Processing Addendum (“DPA”). A current version of the DPA is available at https://www.everflow.io/legal/DPA and is incorporated herein by reference. The DPA is an integral part of these Service Terms and the agreement between Customer and Everflow. Unless otherwise explicitly agreed in writing by the parties, it is agreed and acknowledged that with respect to any Personal Data, Customer shall be deemed the data controller and Everflow shall be deemed the data processor or service provider (as such terms are defined under applicable legislation and regulations, including the GDPR and CCPA).
3. Prohibited Personal Data. Customer will ensure that Customer Data includes only those data elements explicitly permitted under the Everflow Privacy Policy and DPA (“Permitted Data Elements”). A current version of the Everflow Privacy Policy is available at https://www.everflow.io/legal/privacy-policy and is incorporated herein by reference. As between Customer and Everflow, Customer shall be liable for any Customer Data beyond the Permitted Data Elements, and Everflow shall have no obligations under these Service Terms or the DPA with respect to any such Customer Data. Without limiting the obligations of Customer elsewhere in these Service Terms or the DPA, unless otherwise expressly agreed in writing between Customer and Everflow, Customer will not provide or make available to Everflow: (i) “special categories of personal data” under the GDPR and CCPA; (ii) any data concerning racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, or health or sex life; (iii) any financial account information other than Customer’s own payment information; (iv) any government identification numbers; (iv) any information that Customer knows or reasonably should know concerns any individual under the age of sixteen; or (v) any data that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which Customer or Everflow operate, such as (by way of example only) the Health Insurance Portability and Accountability Act, the Children’s Online Privacy Protection Act, and the standards promulgated by the PCI Security Standards Council.
4. Privacy. Customer will publish, and will advise in writing to its Partners that they must publish, a privacy policy that (i) discloses and obtains consent to the usage of third-party technology and the data collection and usage resulting from the use of the Platform Services (it being understood that this clause (i) will not be deemed to require those privacy policies to expressly identify Everflow or the Platform Services, unless otherwise required by applicable law or regulation); (ii) contains a conspicuous live hyperlink to an opt-out website that provides individuals the ability to or contains instructions as to how to opt out of interest-based advertising; and (iii) complies with all applicable laws and regulations.
5. Treatment of Customer Data. Customer is ultimately responsible for making and keeping current copies of all Customer Data and related information. Everflow will retain Customer Data subject to any time or storage limitations set forth in Everflow documentation for the Platform Services, and may delete or decline to store Customer Data older than the prescribed age for deletion, or in excess of the disclosed storage limitation. Everflow shall not disclose the Customer Data to any third party except (a) as directed by Customer (including by Customer's selection of an optional third party data integration), (b) if such disclosure is made by Everflow in response to a court order, subpoena or other legal process, and provided that Everflow has given Customer reasonable notice of such court order, subpoena or other legal process, (c) if such disclosure is made to Everflow's service providers in connection with the operation of the Platform Services, or (d) if such disclosure is in aggregate non-personally identifiable form. Everflow shall use industry standard technology and practices to secure Customer Data.
6. Ownership. Everflow agrees that Customer will own all Customer Data, and that Everflow receives only the right to access the Customer Data solely in connection with the provision of the Platform Services to Customer. As between Everflow and Customer, the Platform Services and all software, data and technologies embodied in or used to provide the Platform Services, including any data and information other than Customer Data, and all intellectual property rights in or relating to any of the foregoing, are owned by Everflow. For clarification, unless otherwise expressly agreed to in writing by the parties, all suggestions, solutions, improvements, customizations, corrections, and other contributions provided by Customer regarding the Platform Services or Everflow Materials provided hereunder shall be owned by Everflow, and Customer hereby agrees to assign any such rights to Everflow.
6. TERM AND TERMINATION
1. Duration and Renewal. Customer’s right to use the Platform Services under these Service Terms shall continue for the term set forth in each Order Form.
2. Termination. Unless otherwise set forth in an Order Form, each party shall have the right to terminate an Order Form upon thirty (30) days' notice. A party may terminate these Service Terms for a material breach by the other party that remains uncured for more than seven (7) days delivery of written notice of the subject breach. Your right to use the Platform Services will automatically terminate upon any termination of these Service Terms.
3. Survival. The following provisions will survive expiration or termination (“Termination”) of these Service Terms: Sections 1, 2, 3.3, 3.4,4, 5, 6.3, 7 (to the extent of any outstanding payments), and 10 through 14, and such other provisions that by their nature are intended to survive Termination, shall survive Termination of this Agreement.
7. FEES AND PAYMENT
1. Fees. In consideration for Everflow providing the Platform Services and any agreed-upon professional services as defined in the Order Form (“Professional Services”), Customer shall pay to Everflow the corresponding fees set forth in the Order Form.
2. Invoices; Payment. Unless otherwise set forth in an Order Form, Everflow shall invoice Customer in arrears at the end of each calendar month for the fees accrued during such calendar month. Each invoice is due and payable thirty (30) days following the invoice date. Overdue payments will accrue interest at the lesser rate of one percent (1%) per month, or the highest rate of interest allowed by law. For clarification, in case of conflict between these Service Terms and the Order Form in regards to invoicing and payment terms, the Order Form shall prevail. All payments shall be made in US Dollars, unless otherwise specified in the Order Form. Customer is responsible for Everflow’s costs and expenses (including attorney fees) to collect past due amounts.
3. Taxes. The fees specified in these Service Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, sales, services, and value-added) (collectively, "Taxes"). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than Everflow's U.S. federal and state income taxes.
4. Non-Paying Platform Services Users. The obligations set forth in this Section 7 shall not apply to the extent Customer has been provided access to the Platform Services free of charge in furtherance of such Customer’s use of the Platform Services in connection with its relationship with another Everflow customer.
8. CONFIDENTIALITY
1. Obligations. "Confidential Information" means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the Platform Services that should be reasonably understood to be confidential, including without limitation Customer Data. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization of the disclosing party, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Service Terms. The receiving party will promptly return or destroy the other party's Confidential Information upon request.
2. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the disclosing party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section 8. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section 8 on account of making the required disclosure.
9. SERVICE LEVEL AGREEMENT
If Customer's subscription includes service-level commitments, and the Order Form accordingly specifies that Everflow's SLA applies, Customer will be entitled to the commitments and remedies set forth in such SLA as attached hereto and incorporated herein by reference to or referenced in the Order Form. The remedies expressly provided in the SLA are Customer's sole and exclusive remedy, and Everflow's entire obligation, with respect to any service-level violation.
10. DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE SERVICE TERMS (AND WITHOUT LIMITING REMEDIES TO WHICH CUSTOMER MAY BE ENTITLED UNDER THE SLA, IF APPLICABLE), THE PLATFORM SERVICES, PROFESSIONAL SERVICES AND EVERFLOW MATERIALS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EVERFLOW DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EVERFLOW MATERIALS DO NOT, AND ARE NOT INTENDED TO, CONSTITUTE LEGAL, FINANCIAL OR ACCOUNTING ADVICE. EVERFLOW MATERIALS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. EVERFLOW MATERIALS ARE NOT A SUBSTITUTE FOR PROFESSIONAL LEGAL, FINANCIAL OR ACCOUNTING ADVICE. IF YOU NEED LEGAL, FINANCIAL OR ACCOUNTING ADVICE, YOU SHOULD CONSULT WITH A DULY LICENSED PROFESSIONAL. WITHOUT LIMITING THE FOREGOING, FX DATA ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT WARRANTED TO BE COMPLETE, ACCURATE OR TIMELY.
11. INDEMNIFICATION
1. By Everflow. Everflow will indemnify, defend and hold harmless Customer and its shareholders, directors, officers, employees and agents, and its and their respective successors and assigns from and against any and all third party claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs ("Claims") against Customer to the extent based upon an allegation that the Platform Services, as furnished by Everflow hereunder and used by Customer within the scope of these Service Terms, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF EVERFLOW WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM SERVICES. Everflow shall have no liability under this Section 11.1 to the extent that any Claims are based on (i) any combination of the Platform Services with products, services, methods, content or other elements not authorized in writing by Everflow, (ii) modification or maintenance of the Platform Services by a party other than Everflow; or (iii) any use of the Platform Services in a manner that violates these Service Terms, documentation, instructions or materials (including Everflow Materials) given to Customer by Everflow.
2. Mitigation Measures. In the event of any Claim or potential Claim covered by Section 11.1, Everflow may, in its discretion, seek to mitigate the impact of such Claim by modifying the Platform Services to make them non-infringing, and/or by suspending or terminating Customer's use of the Platform Services upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Everflow will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).
3. Indemnification by Customer. Customer will indemnify, defend and hold harmless Everflow and its shareholders, directors, officers, employees and agents, and its and their respective successors and assigns against any Claims arising from or related to (i) a breach of any of Customer’s representations, warranties and covenants set forth in this Agreement; (ii) any Customer Data; or (iii) the use of the Platform Services by Customer, Authorized Users, or Partners in violation of these Service Terms or any applicable Everflow documentation, instructions or materials (including Everflow Materials). Customer-indemnified Claims include without limitation Claims resulting from advertising practices or the actions or omissions of affiliate network Partners, and any Claims brought by, or in connection with the actions or omissions of, Third Party Integration Providers.
4. Procedures. Each party's indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the indemnified party's rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the indemnified party will, at the indemnifier's expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim. Any delay or failure of the indemnified party to provide notice here under shall only relieve the indemnifier of its obligations hereunder to the extent, if at all, that it is actually prejudiced by reason of such delay or failure.
12. LIMITATION OF LIABILITY
1. Waiver of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THESE SERVICE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Liability Cap. EXCEPT FOR AMOUNTS OWED UNDER SECTION 7, THE TOTAL LIABILITY OF EACH PARTY FOR DAMAGES ARISING FROM OR RELATED TO THESE SERVICE TERMS SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO EVERFLOW UNDER THESE SERVICE TERMS FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
3. Exceptions. Nothing in this Section 12 shall limit or waive a party's: (i) liability for any breach of its confidentiality obligations under these Service Terms; (ii) liability for its infringement or misappropriation of any proprietary rights of the other party; (iii) indemnification obligations under Section 11; or (iv) liability for its gross negligence or willful misconduct.
13. PUBLICITY
1. Identification of Customer. Everflow may identify Customer, by name and by logo, as a customer of the Platform Services on Everflow's website and other marketing materials.
2. Case Study. Provided Customer is satisfied with the Platform Services, Everflow may develop a case study for public dissemination and marketing use by Everflow describing the benefits Customer has derived from the Platform Services. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer's prior written approval, not to be unreasonably withheld.
14. MISCELLANEOUS
1. Assignment. Neither party may assign the Agreement without the other party's prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer these Service Terms together with all Order Forms (and subject to any usage limitations therein) upon written notice to the other party: (i) to any entity controlling, controlled by, or under common control with, the transferring party, where "control" means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (ii) to any entity acquiring the transferring party, with which the transferring party is merging or to which the transferring party sells all or substantially all of its assets. Everflow shall have the right to increase amounts charged to Customer in the event of any transfer by Customer that either increases the cost of providing the Platform Services or by virtue of a change in taxes to be paid reduces the amount received by Everflow. Any attempt to assign this Agreement except as permitted under this Section, will be null and of no effect. Subject to the foregoing, these Service Terms will bind and inure to the benefit of each party's successors and permitted assigns.
2. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
3. Compliance. The parties agree to comply with all applicable international, federal, state and local laws, rules and regulations, including, without limitation, privacy and data security laws, and export laws.
4. Severability. If any part of these Service Terms is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of these Service Terms will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
5. Waiver. No forbearance or delay by either party in exercising or enforcing the provisions of the Agreement shall prejudice or restrict the rights (whether provided by the Agreement or by law) of that party. The waiver of a breach of any provision of these Service Terms will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
6. Notices. All notices permitted or required under these Service Terms shall be in writing, will reference these Service Terms, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
7. Governing Law. These Service Terms will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under these Service Terms will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
8. Revisions to Service Terms and Order Form. Everflow may change these Service Terms, the Order Form or its policies from time to time (“Revised Version”), in which case we will post the subject Revised Version to our website at the same URL or location as the prior version. Unless otherwise agreed to by the parties, your continued use of the Platform Services means that you have agreed to the subject Revised Version.
9. Relationship of the Parties. Both parties are independent contractors and nothing in the Agreement creates a partnership, agency, joint venture, fiduciary or employment relationship between the parties. Neither party shall have any authority to incur any obligations on behalf of the other party or to make any promise, representation or contract of any nature on behalf of the other party.
10. Each party hereby acknowledges that it has been afforded the opportunity to obtain independent legal advice and confirms that it has either done so or waived its right to do so in connection with the entering into of this Agreement.
11. Entire Agreement. These Service Terms, the SLA, and the Order Form constitute the entire agreement between the parties and supersede all prior or contemporaneous oral or written agreements regarding the subject matter herein.
EXHIBIT A
Everflow Service Level Agreement
This Everflow Service Level Agreement ("SLA") supplements the Service Terms together with the Order Form(s) to which they are attached or incorporated, between Everflow and Customer that incorporate this SLA by reference (the "Agreement"). All capitalized terms not defined herein shall have the meanings given to them in the Agreement. This SLA terminates or expires upon any termination or expiration of the Agreement.
1. SERVICE AVAILABILITY
1. "Downtime" means any period during which all Platform Services cease to function and are therefore unavailable for access by Customer, calculated as a percentage of the total time during a calendar month.
2. "Excused Downtime" means any Downtime that: (a) occurs during a Scheduled Maintenance Period; (b) occurs during any suspension of Customer's access to the Platform Services as permitted under the Agreement; (c) occurs during any period in which Customer is in breach of the Agreement (including while any payments by Customer are overdue); or (d) results from the actions or omissions of Customer or third parties acting on Customer's behalf or from any cause beyond Everflow's reasonable control.
3. "Scheduled Maintenance Period" means any pre-scheduled time period during which Everflow performs maintenance on the Platform Services. The regularly scheduled time for maintenance is presently 9 p.m. to 12.00 a.m. PST/PDT, and may be used by Everflow without advance notification. Everflow may expand these scheduled times upon one (1) day's advance notice. Everflow may change the regularly scheduled time for maintenance by amending this SLA upon ten (10) business days' written notice delivered either by email or through a notice on the Platform Services.
4. "Target Downtime" means Downtime, excluding Excused Downtime, of 0.1% of of the total time in any calendar month.
5. In the event that Everflow in its sole discretion determines that any unscheduled maintenance is necessary, Everflow will use commercially reasonable efforts to notify Customer.
6. For any calendar month in which the Downtime for the Platform Services exceeds the Target Downtime, Everflow will, if and only if Customer delivers a written credit request within thirty (30) days of the end of the relevant calendar month, issue Customer a service credit calculated as a percentage of the fees due from Customer for such calendar month equal to two (2) times the difference between the Target Downtime and the Downtime percentage. The maximum service credit for any calendar month under this SLA shall not exceed the fees payable for such calendar month.
7. This SLA describes your sole remedy, and our entire obligation, if we exceed the Target Downtime. This SLA does not diminish or override the disclaimer of warranties in the Agreement to which this SLA is attached (except as expressly stated therein). No party other than Customer receives any rights under this SLA.
2. TECHNICAL SUPPORT
We will provide commercially reasonable telephone, live online chat, and/or email assistance for general advice and technical support, as well as technical assistance and remediation for operational issues, consistent with the level of support that Everflow generally offers at no additional charge to users of the Platform Services.
3. DOMAINS
All domain additions or changes, as defined in the Order Form, will be performed by Everflow within twenty-four (24) business hours. This term applies solely to domains registered and managed by Ever flow. For clarification, service issues related to domains managed by Customer are not subject to this SLA.

Service Terms Review – revised – clean
https://www.everflow.io/terms
Revised version as at 12-21-20
Everflow Service Terms
(Last updated December 2020)
The following terms and conditions (the "Service Terms"), together with the Order Form(s) to which these Service Terms are attached or incorporated, constitute the agreement (“Agreement”) between Everflow Technologies Inc. with its principal place of business at 530 Showers Drive Suite 7-302 Mountain View, CA 94040, USA (“Everflow”), and the customer identified in the Order Form (“Customer”).
1. PARTIES
In these Service Terms, the words "Everflow," "we," and "us" refer to Everflow Technologies Inc. The words "Customer" and "you" refer to the subscriber to the Platform Services as defined in the Order Form, whether an individual, corporation, or other entity. You may not use the Platform Services unless you accept these Service Terms and have the power and legal right to form a contract with us. Any individual subscribing to or using the Platform Services in the name of a company or other organization represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Service Terms.
2. DEFINITIONS
The following terms and any others defined in these Service Terms will be interpreted according to the definitions given.
1. "Authorized User" means you (if you are an individual) or an individual employee or agent of yours who has been assigned unique credentials to access and use the Platform Services, whether or not that individual is accessing or using the Platform Services at any particular time.
2. "Everflow API" means the application programming interfaces provided by Everflow as a mechanism for access to the Platform Services.
3. “Everflow Materials” means information and materials in any format provided by Everflow, including, without limitation, documentation, templates, instructions, professional services, FX Data (as defined herein), and reference materials and guidance.
4. “Everflow Platform” means Everflow’s cloud platform that facilitates the Platform Services (as defined herein).
5. “FX Data” means foreign exchange (“FX”) data from Open Exchange Rates Ltd. (https://openexchangerates.org/) and related currency conversions and calculations, provided by the Everflow Platform.
6. "Order Form" means Everflow's online or written order form or account setup form, as agreed to by Customer and Everflow, that specifies the pricing for the use of the Platform Service, and that references these Service Terms.
7. "Partner" means any third party authorized by Customer to access and use the Platform Services, or which supplies advertising or advertising inventory to Customer in connection with Customer's use of the Platform Services.
8. "Platform Services" means the web-based advertising network, affiliate tracking, targeting, reporting and analytics services included in the services to be supplied by Everflow, as defined in the Order Form (and any applicable service description referenced in the Order Form) or separate terms that reference the Service Terms, that are facilitated by the Everflow Platform. For clarification, Platform Services include the Everflow EverXChange and Everflow Materials.
3. PLATFORM SERVICES
1. Authorization. Subject to your compliance with the terms and conditions of these Service Terms, Everflow will provide your Authorized Users with access to and use of the Platform Services which you have purchased and for which you pay, solely for your internal business purposes and in accordance with Everflow's relevant end-user documentation. The Platform Services and Everflow API may be used only in accordance with the documentation and specifications provided by Everflow. You and your Authorized Users will access the Everflow API and Platform Services using the login credentials and Everflow API Keys assigned to you by Everflow. Everflow may monitor your use of the Everflow API to ensure quality, improve Everflow products and services, and verify your compliance with these Service Terms. Your use of the Platform Services is further subject to any usage limitations indicated in the Order Form or in Everflow's applicable service description referenced therein or provided by Everflow.
2. Maintenance and Support. If the Order Form or Everflow's associated service description provides for Customer to receive maintenance and/or technical support in connection with the Platform Services, then (unless otherwise set forth in the Order Form or service description): (i) such maintenance will consist of access to new features or performance improvements in the Platform Services if and when Everflow makes any such features or improvements generally available to its subscriber base at no additional charge, and (ii) such technical support will consist of first-level telephone or email assistance in accordance with Everflow's Service Level Agreement (“SLA”), attached hereto as Exhibit A and incorporated herein by reference.
3. Restrictions. You may not: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Platform Services or any associated software or materials; (ii) provide any third parties with direct access to the Everflow API or Platform Services; (iii) provide any third parties other than Partners with access to any of the Platform Services, or use any of the Platform Services for time sharing or similar purposes for the benefit of any third party; (iv) remove any copyright or proprietary notices contained in the Platform Services or any output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure or monitoring system provided or used by Everflow in connection with the Platform Services or Everflow API; (vi) access the Platform Services via any bot, web crawler or non-human user except to the extent the Everflow API permits such access; (vii) introduce into the Platform Services any software, virus, worm, "back door," Trojan Horse, or similar harmful code; (viii) access or use (or permit a third party to access or use) the Platform Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Platform Services or for any other benchmarking or competitive purposes; or (ix) interfere or attempt to interfere in any manner with the proper workings of the Everflow API or Platform Services, or engage in any activities that adversely affect the functionality or performance of the Everflow API or Platform Services. All rights in the Platform Services not expressly granted herein are reserved.
4. Third Party Integrations. Everflow offers Customers the option of sending data and information to, and receiving data and information from analytics or other services provided by third parties ("Third Party Integration Providers"). Customer is solely responsible for establishing a contractual relationship with any such Third Party Integration Providers, independently of Everflow, and complying with the terms of such contractual relationship. Everflow shall not be responsible or liable for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data or any other harm to Customer or any other party caused by any Third Party Integration Providers, including without limitation, by Everflow's integration with such Third Party Integration Providers and the use of any data or information received from such Third Party Integration Providers. For clarification, Everflow shall not be responsible for any Third Party Integration Provider; Customer agrees that any claim relating to a Third Party Integration Provider may only be made against the related Third Party Integration Provider.
5. Third Party Services. Customer acknowledges that in connection with Platform Services, the Everflow Platform may facilitate the delivery of services of third parties service providers (“Third Party Service”) (“Third Party Service Provider”), where applicable, and agreed to in writing by the Customer, Third Party Service Provider and Everflow. Any Third Party Service shall be performed by the corresponding Third Party Service Provider in accordance with the corresponding Third Party Service Provider terms (“Third Party Terms”), to which Customer shall agree in advance, independently of Everflow; the Third Party Service Provider shall remain directly responsible to Customer for the performance of its Third Party Service. For clarification, Everflow shall not be responsible for any Third Party Service Provider or Third Party Service; Customer agrees that any claim relating to a Third Party Service Provider or Third Party Service may only be made against the related Service Third Party.
6. Third Party Service Provider Fees. Where applicable, and agreed to in writing by the Customer, Third Party Service Provider and Everflow, the Everflow Platform may facilitate the invoicing of Customer for its Third Party Service and Customer’s corresponding payments to the subject Third Party Service Provider.
4. CUSTOMER OBLIGATIONS
1. Responsibilities in Using Platform Services. You are responsible for: (i) maintaining the confidentiality of any user IDs, passwords and other credentials associated with your account, (ii) all activities that occur with respect to your account, (iii) your use of the Platform Services and compliance with these Service Terms, and (iv) any Customer-furnished data. Further, you acknowledge and agree that you shall remain liable for all actions and omissions of your Authorized Users and Partners hereunder or under any applicable separate agreement.
2. Advertising Obligations. You shall not, and shall cause each of your Partners not to, directly or indirectly, in connection with their business practices or activities, or in connection with any advertisements or properties on which advertisements appear: (i) facilitate or promote illegal, deceptive, or fraudulent activity, or contain content that is illegal; (ii) contain content that is or promotes activities that are, in Everflow's sole discretion, likely to generate liability for Everflow or negatively affect Everflow's reputation; (iii) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; or (iv) use the Platform Services to target advertisements to children under the age of 13 years (16 years in the EU).
3. Correction; Suspension. If Customer's use of the Everflow API or Platform Services, or any advertising or advertising inventory properties are deemed by Everflow, in its sole discretion, to not meet the letter or spirit of the standards set forth in this Agreement, Everflow may request that Customer make changes to bring its practices and/or such content and materials into compliance. If Customer fails to make the necessary changes immediately upon request, and without limiting any of the other remedies available to Everflow at law or in equity, Everflow is authorized to remove the content or materials, and/or suspend any applicable campaign or Customer's access to the Platform Services, without liability to Customer, in its sole discretion. Customer agrees and acknowledges that Everflow shall have the right to audit, from time to time, Customer's use of the Everflow API, Platform Services, and the content and material Customer is promoting, distributing and/or displaying on or through the Platform Services or in connection with the use thereof. Everflow reserves the right to immediately suspend, in whole or in part, Customer's access to the Platform Services and Everflow's provision of the Platform Services in order to prevent imminent harm to Everflow or a third party, without liability to Customer, in its sole discretion..
5. DATA AND OWNERSHIP
1. "Customer Data" consists of information input into the Platform Services by Customer or Customer's Authorized Users, any data collected by Customer through the use of the Platform Services, including without limitation Personal Data as defined herein, or any Partner, Customer, Authorized User or Partner behavior on the Platform Services, as captured by the Platform Services. Customer shall not collect and shall not enable the collection of Customer Data from individuals in connection with the utilization of the Platform Services without the prior express consent of such individuals in compliance with applicable laws and regulations. With respect to Customer Data collected by Customer from individuals, Customer will collect, process and disclose, and direct Everflow to process and disclose, such Customer Data only in accordance with all applicable laws and regulations, its privacy policy, and the requirements of these Service Terms.
2. Personal Data. Any Customer Data consisting of personal information or personal data, as such terms are defined under applicable legislation and regulations, including the EU General Data Protection Regulation 2016/679 or the California Consumer Privacy Act (“Personal Data”, “GDPR”, and “CCPA” respectively), and the processing thereof, shall be governed under the terms and conditions set forth herein and in the Everflow Data Processing Addendum (“DPA”). A current version of the DPA is available at https://www.everflow.io/legal/DPA and is incorporated herein by reference. The DPA is an integral part of these Service Terms and the agreement between Customer and Everflow. Unless otherwise explicitly agreed in writing by the parties, it is agreed and acknowledged that with respect to any Personal Data, Customer shall be deemed the data controller and Everflow shall be deemed the data processor or service provider (as such terms are defined under applicable legislation and regulations, including the GDPR and CCPA).
3. Prohibited Personal Data. Customer will ensure that Customer Data includes only those data elements explicitly permitted under the Everflow Privacy Policy and DPA (“Permitted Data Elements”). A current version of the Everflow Privacy Policy is available at https://www.everflow.io/legal/privacy-policy and is incorporated herein by reference. As between Customer and Everflow, Customer shall be liable for any Customer Data beyond the Permitted Data Elements, and Everflow shall have no obligations under these Service Terms or the DPA with respect to any such Customer Data. Without limiting the obligations of Customer elsewhere in these Service Terms or the DPA, unless otherwise expressly agreed in writing between Customer and Everflow, Customer will not provide or make available to Everflow: (i) “special categories of personal data” under the GDPR and CCPA; (ii) any data concerning racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, or health or sex life; (iii) any financial account information other than Customer’s own payment information; (iv) any government identification numbers; (iv) any information that Customer knows or reasonably should know concerns any individual under the age of sixteen; or (v) any data that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which Customer or Everflow operate, such as (by way of example only) the Health Insurance Portability and Accountability Act, the Children’s Online Privacy Protection Act, and the standards promulgated by the PCI Security Standards Council.
4. Privacy. Customer will publish, and will advise in writing to its Partners that they must publish, a privacy policy that (i) discloses and obtains consent to the usage of third-party technology and the data collection and usage resulting from the use of the Platform Services (it being understood that this clause (i) will not be deemed to require those privacy policies to expressly identify Everflow or the Platform Services, unless otherwise required by applicable law or regulation); (ii) contains a conspicuous live hyperlink to an opt-out website that provides individuals the ability to or contains instructions as to how to opt out of interest-based advertising; and (iii) complies with all applicable laws and regulations.
5. Treatment of Customer Data. Customer is ultimately responsible for making and keeping current copies of all Customer Data and related information. Everflow will retain Customer Data subject to any time or storage limitations set forth in Everflow documentation for the Platform Services, and may delete or decline to store Customer Data older than the prescribed age for deletion, or in excess of the disclosed storage limitation. Everflow shall not disclose the Customer Data to any third party except (a) as directed by Customer (including by Customer's selection of an optional third party data integration), (b) if such disclosure is made by Everflow in response to a court order, subpoena or other legal process, and provided that Everflow has given Customer reasonable notice of such court order, subpoena or other legal process, (c) if such disclosure is made to Everflow's service providers in connection with the operation of the Platform Services, or (d) if such disclosure is in aggregate non-personally identifiable form. Everflow shall use industry standard technology and practices to secure Customer Data.
6. Ownership. Everflow agrees that Customer will own all Customer Data, and that Everflow receives only the right to access the Customer Data solely in connection with the provision of the Platform Services to Customer. As between Everflow and Customer, the Platform Services and all software, data and technologies embodied in or used to provide the Platform Services, including any data and information other than Customer Data, and all intellectual property rights in or relating to any of the foregoing, are owned by Everflow. For clarification, unless otherwise expressly agreed to in writing by the parties, all suggestions, solutions, improvements, customizations, corrections, and other contributions provided by Customer regarding the Platform Services or Everflow Materials provided hereunder shall be owned by Everflow, and Customer hereby agrees to assign any such rights to Everflow.
6. TERM AND TERMINATION
1. Duration and Renewal. Customer’s right to use the Platform Services under these Service Terms shall continue for the term set forth in each Order Form.
2. Termination. Unless otherwise set forth in an Order Form, each party shall have the right to terminate an Order Form upon thirty (30) days' notice. A party may terminate these Service Terms for a material breach by the other party that remains uncured for more than seven (7) days delivery of written notice of the subject breach. Your right to use the Platform Services will automatically terminate upon any termination of these Service Terms.
3. Survival. The following provisions will survive expiration or termination (“Termination”) of these Service Terms: Sections 1, 2, 3.3, 3.4,4, 5, 6.3, 7 (to the extent of any outstanding payments), and 10 through 14, and such other provisions that by their nature are intended to survive Termination, shall survive Termination of this Agreement.
7. FEES AND PAYMENT
1. Fees. In consideration for Everflow providing the Platform Services and any agreed-upon professional services as defined in the Order Form (“Professional Services”), Customer shall pay to Everflow the corresponding fees set forth in the Order Form.
2. Invoices; Payment. Unless otherwise set forth in an Order Form, Everflow shall invoice Customer in arrears at the end of each calendar month for the fees accrued during such calendar month. Each invoice is due and payable thirty (30) days following the invoice date. Overdue payments will accrue interest at the lesser rate of one percent (1%) per month, or the highest rate of interest allowed by law. For clarification, in case of conflict between these Service Terms and the Order Form in regards to invoicing and payment terms, the Order Form shall prevail. All payments shall be made in US Dollars, unless otherwise specified in the Order Form. Customer is responsible for Everflow’s costs and expenses (including attorney fees) to collect past due amounts.
3. Taxes. The fees specified in these Service Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, sales, services, and value-added) (collectively, "Taxes"). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than Everflow's U.S. federal and state income taxes.
4. Non-Paying Platform Services Users. The obligations set forth in this Section 7 shall not apply to the extent Customer has been provided access to the Platform Services free of charge in furtherance of such Customer’s use of the Platform Services in connection with its relationship with another Everflow customer.
8. CONFIDENTIALITY
1. Obligations. "Confidential Information" means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the Platform Services that should be reasonably understood to be confidential, including without limitation Customer Data. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization of the disclosing party, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Service Terms. The receiving party will promptly return or destroy the other party's Confidential Information upon request.
2. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the disclosing party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section 8. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section 8 on account of making the required disclosure.
9. SERVICE LEVEL AGREEMENT
If Customer's subscription includes service-level commitments, and the Order Form accordingly specifies that Everflow's SLA applies, Customer will be entitled to the commitments and remedies set forth in such SLA as attached hereto and incorporated herein by reference to or referenced in the Order Form. The remedies expressly provided in the SLA are Customer's sole and exclusive remedy, and Everflow's entire obligation, with respect to any service-level violation.
10. DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE SERVICE TERMS (AND WITHOUT LIMITING REMEDIES TO WHICH CUSTOMER MAY BE ENTITLED UNDER THE SLA, IF APPLICABLE), THE PLATFORM SERVICES, PROFESSIONAL SERVICES AND EVERFLOW MATERIALS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EVERFLOW DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EVERFLOW MATERIALS DO NOT, AND ARE NOT INTENDED TO, CONSTITUTE LEGAL, FINANCIAL OR ACCOUNTING ADVICE. EVERFLOW MATERIALS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. EVERFLOW MATERIALS ARE NOT A SUBSTITUTE FOR PROFESSIONAL LEGAL, FINANCIAL OR ACCOUNTING ADVICE. IF YOU NEED LEGAL, FINANCIAL OR ACCOUNTING ADVICE, YOU SHOULD CONSULT WITH A DULY LICENSED PROFESSIONAL. WITHOUT LIMITING THE FOREGOING, FX DATA ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT WARRANTED TO BE COMPLETE, ACCURATE OR TIMELY.
11. INDEMNIFICATION
1. By Everflow. Everflow will indemnify, defend and hold harmless Customer and its shareholders, directors, officers, employees and agents, and its and their respective successors and assigns from and against any and all third party claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs ("Claims") against Customer to the extent based upon an allegation that the Platform Services, as furnished by Everflow hereunder and used by Customer within the scope of these Service Terms, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF EVERFLOW WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM SERVICES. Everflow shall have no liability under this Section 11.1 to the extent that any Claims are based on (i) any combination of the Platform Services with products, services, methods, content or other elements not authorized in writing by Everflow, (ii) modification or maintenance of the Platform Services by a party other than Everflow; or (iii) any use of the Platform Services in a manner that violates these Service Terms, documentation, instructions or materials (including Everflow Materials) given to Customer by Everflow.
2. Mitigation Measures. In the event of any Claim or potential Claim covered by Section 11.1, Everflow may, in its discretion, seek to mitigate the impact of such Claim by modifying the Platform Services to make them non-infringing, and/or by suspending or terminating Customer's use of the Platform Services upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Everflow will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).
3. Indemnification by Customer. Customer will indemnify, defend and hold harmless Everflow and its shareholders, directors, officers, employees and agents, and its and their respective successors and assigns against any Claims arising from or related to (i) a breach of any of Customer’s representations, warranties and covenants set forth in this Agreement; (ii) any Customer Data; or (iii) the use of the Platform Services by Customer, Authorized Users, or Partners in violation of these Service Terms or any applicable Everflow documentation, instructions or materials (including Everflow Materials). Customer-indemnified Claims include without limitation Claims resulting from advertising practices or the actions or omissions of affiliate network Partners, and any Claims brought by, or in connection with the actions or omissions of, Third Party Integration Providers.
4. Procedures. Each party's indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the indemnified party's rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the indemnified party will, at the indemnifier's expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim. Any delay or failure of the indemnified party to provide notice here under shall only relieve the indemnifier of its obligations hereunder to the extent, if at all, that it is actually prejudiced by reason of such delay or failure.
12. LIMITATION OF LIABILITY
1. Waiver of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THESE SERVICE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Liability Cap. EXCEPT FOR AMOUNTS OWED UNDER SECTION 7, THE TOTAL LIABILITY OF EACH PARTY FOR DAMAGES ARISING FROM OR RELATED TO THESE SERVICE TERMS SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO EVERFLOW UNDER THESE SERVICE TERMS FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
3. Exceptions. Nothing in this Section 12 shall limit or waive a party's: (i) liability for any breach of its confidentiality obligations under these Service Terms; (ii) liability for its infringement or misappropriation of any proprietary rights of the other party; (iii) indemnification obligations under Section 11; or (iv) liability for its gross negligence or willful misconduct.
13. PUBLICITY
1. Identification of Customer. Everflow may identify Customer, by name and by logo, as a customer of the Platform Services on Everflow's website and other marketing materials.
2. Case Study. Provided Customer is satisfied with the Platform Services, Everflow may develop a case study for public dissemination and marketing use by Everflow describing the benefits Customer has derived from the Platform Services. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer's prior written approval, not to be unreasonably withheld.
14. MISCELLANEOUS
1. Assignment. Neither party may assign the Agreement without the other party's prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer these Service Terms together with all Order Forms (and subject to any usage limitations therein) upon written notice to the other party: (i) to any entity controlling, controlled by, or under common control with, the transferring party, where "control" means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (ii) to any entity acquiring the transferring party, with which the transferring party is merging or to which the transferring party sells all or substantially all of its assets. Everflow shall have the right to increase amounts charged to Customer in the event of any transfer by Customer that either increases the cost of providing the Platform Services or by virtue of a change in taxes to be paid reduces the amount received by Everflow. Any attempt to assign this Agreement except as permitted under this Section, will be null and of no effect. Subject to the foregoing, these Service Terms will bind and inure to the benefit of each party's successors and permitted assigns.
2. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
3. Compliance. The parties agree to comply with all applicable international, federal, state and local laws, rules and regulations, including, without limitation, privacy and data security laws, and export laws.
4. Severability. If any part of these Service Terms is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of these Service Terms will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
5. Waiver. No forbearance or delay by either party in exercising or enforcing the provisions of the Agreement shall prejudice or restrict the rights (whether provided by the Agreement or by law) of that party. The waiver of a breach of any provision of these Service Terms will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
6. Notices. All notices permitted or required under these Service Terms shall be in writing, will reference these Service Terms, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
7. Governing Law. These Service Terms will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under these Service Terms will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
8. Revisions to Service Terms and Order Form. Everflow may change these Service Terms, the Order Form or its policies from time to time (“Revised Version”), in which case we will post the subject Revised Version to our website at the same URL or location as the prior version. Unless otherwise agreed to by the parties, your continued use of the Platform Services means that you have agreed to the subject Revised Version.
9. Relationship of the Parties. Both parties are independent contractors and nothing in the Agreement creates a partnership, agency, joint venture, fiduciary or employment relationship between the parties. Neither party shall have any authority to incur any obligations on behalf of the other party or to make any promise, representation or contract of any nature on behalf of the other party.
10. Each party hereby acknowledges that it has been afforded the opportunity to obtain independent legal advice and confirms that it has either done so or waived its right to do so in connection with the entering into of this Agreement.
11. Entire Agreement. These Service Terms, the SLA, and the Order Form constitute the entire agreement between the parties and supersede all prior or contemporaneous oral or written agreements regarding the subject matter herein.
EXHIBIT A
Everflow Service Level Agreement
This Everflow Service Level Agreement ("SLA") supplements the Service Terms together with the Order Form(s) to which they are attached or incorporated, between Everflow and Customer that incorporate this SLA by reference (the "Agreement"). All capitalized terms not defined herein shall have the meanings given to them in the Agreement. This SLA terminates or expires upon any termination or expiration of the Agreement.
1. SERVICE AVAILABILITY
1. "Downtime" means any period during which all Platform Services cease to function and are therefore unavailable for access by Customer, calculated as a percentage of the total time during a calendar month.
2. "Excused Downtime" means any Downtime that: (a) occurs during a Scheduled Maintenance Period; (b) occurs during any suspension of Customer's access to the Platform Services as permitted under the Agreement; (c) occurs during any period in which Customer is in breach of the Agreement (including while any payments by Customer are overdue); or (d) results from the actions or omissions of Customer or third parties acting on Customer's behalf or from any cause beyond Everflow's reasonable control.
3. "Scheduled Maintenance Period" means any pre-scheduled time period during which Everflow performs maintenance on the Platform Services. The regularly scheduled time for maintenance is presently 9 p.m. to 12.00 a.m. PST/PDT, and may be used by Everflow without advance notification. Everflow may expand these scheduled times upon one (1) day's advance notice. Everflow may change the regularly scheduled time for maintenance by amending this SLA upon ten (10) business days' written notice delivered either by email or through a notice on the Platform Services.
4. "Target Downtime" means Downtime, excluding Excused Downtime, of 0.1% of of the total time in any calendar month.
5. In the event that Everflow in its sole discretion determines that any unscheduled maintenance is necessary, Everflow will use commercially reasonable efforts to notify Customer.
6. For any calendar month in which the Downtime for the Platform Services exceeds the Target Downtime, Everflow will, if and only if Customer delivers a written credit request within thirty (30) days of the end of the relevant calendar month, issue Customer a service credit calculated as a percentage of the fees due from Customer for such calendar month equal to two (2) times the difference between the Target Downtime and the Downtime percentage. The maximum service credit for any calendar month under this SLA shall not exceed the fees payable for such calendar month.
7. This SLA describes your sole remedy, and our entire obligation, if we exceed the Target Downtime. This SLA does not diminish or override the disclaimer of warranties in the Agreement to which this SLA is attached (except as expressly stated therein). No party other than Customer receives any rights under this SLA.
2. TECHNICAL SUPPORT
We will provide commercially reasonable telephone, live online chat, and/or email assistance for general advice and technical support, as well as technical assistance and remediation for operational issues, consistent with the level of support that Everflow generally offers at no additional charge to users of the Platform Services.
3. DOMAINS
All domain additions or changes, as defined in the Order Form, will be performed by Everflow within twenty-four (24) business hours. This term applies solely to domains registered and managed by Ever flow. For clarification, service issues related to domains managed by Customer are not subject to this SLA.