Last Modified: July 6, 2020
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. YOU MUST READ AND AGREE TO THIS AGREEMENT BEFORE USING THE SERVICE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, YOU DO NOT HAVE OUR PERMISSION TO ACCESS OR USE THE SERVICE.
You may use the Service only if you can form a binding contract with Everdays, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under eighteen (18) years is strictly prohibited and in violation of this Agreement. The Service is not available to any Client Users previously removed from the Service by Everdays.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Everdays reserves all rights not expressly granted herein in the Service and the Everdays Content (as defined below). Everdays may terminate this license at any time for any reason or no reason.
Your account on the Service (your “Client User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of Client User Accounts for different types of Client Users. If you open a Client User Account on behalf of a funeral home company, organization, or other entity, then (i) “you” includes you and that entity; (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement; and (iii) you agree to this Agreement on the entity’s behalf. By connecting to Everdays with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another Client User’s Client User Account without our permission. When creating your Client User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your Client User Account, and you must keep your Client User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your Client User Account. You must notify Everdays immediately of any breach of security or unauthorized use of your Client User Account. Everdays will not be liable for any losses caused by any unauthorized use of your Client User Account.
You may control your Client User profile and how you interact with the Service by changing the settings in your settings page. By providing Everdays your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Client Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other Users and Client Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users and Client Users. Everdays shall have no liability for your interactions with other Users or Client Users, or for any User’s or Client User’s action or inaction.
When you sign up to use a special feature of this Service, or when we notify you of updates to the Service, you may be asked to agree to special terms governing your use of the special feature. In such cases, you may be asked to expressly consent to the special terms, for example, by checking a box or clicking on a button marked “I agree”. This type of agreement is known as a “click-through” agreement. If any of the terms of the click-through agreement are different than the terms of these Terms of Service, the terms of the click-through agreement will supplement or amend these Terms of Service, but only with respect to the matters governed by the click-through agreement.
During the term of your participation in this Service, we will develop and offer online and mobile services to, among other things, market, promote and transact pre-arranged and/or at-need funeral planning with potential customers (“Consumers”). The Service will be utilized by Consumers to, among other things, purchase pre-need and/or at-need funeral services (“Transactions”) from your funeral home.
For any Transactions you complete through the Service, you acknowledge and agree that the Transactions will be funded through the Assurance Elite products of Homesteaders Life Company (“HLC”), an Iowa mutual life insurance company. Not all HLC products are available in all states, and we will only market insurance where we and HLC are licensed to sell.
By your participation in the Service, you grant us the right to communicate with Consumers on your behalf, and to utilize your name, email address, phone number and address when communicating with Consumers. We may decline to pursue or do business with any Consumer in our reasonable discretion, including those Consumers who do not meet our standards and policies as established from time to time. You agree to comply with the policies and procedures related to this Agreement promulgated by us from time to time.
Neither you nor we will have the right to use the trademarks, service marks, trade dress, logos and trade names (collectively, “Trademarks”) of the other party except as expressly authorized in this Section. During the term of your participation in this Service, you grant us a non-exclusive, non-assignable license to use your Trademarks solely and exclusively for the purposes described herein. You authorize us to use your name, logo and/or Trademarks without notice to or consent by you.
You grant us the right to use your company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to your standard trademark usage guidelines as provided to us from time to time. You may terminate this right by sending an email to firstname.lastname@example.org stating that you do not wish to be used as a reference, and within a reasonable period of time we will remove you from any future marketing references.
The participating funeral homes’ names and logos, product and service names, trademarks, and service marks appearing within the Service, unless otherwise noted, are trademarks (whether registered or not), service marks and/or trade dress of each such participating funeral home. All other trademarks, product names, company names, logos, service marks and/or trade dress mentioned, displayed, cited or otherwise indicated within the Service are the property of their respective owners. You are not authorized to display or use the trademarks, product names, company names, logos, service marks and/or trade dress of other owners featured within this Service, including ours, without the prior written permission of such owners. The use or misuse of other owners’ marks or other trademarks, product names, company names, logos, service marks and/or trade dress or any other materials contained herein, is expressly prohibited.
Some areas of the Service allow Client Users to submit, post, edit, display, provide, or otherwise make available content such as company names, locations, company information, products and services offered (including descriptions and pricing information), as well as information relating to your customers’ funeral services, including event dates, times and locations, other messages for the family or other participants, responses to comments and questions, and other content or information (any such materials a Client User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “Client Content”). Client Content does NOT include Trademarks.
Except for information posted by you regarding services or other information relating to a customers’ death, we claim no ownership rights over Client Content you create. The Client Content you create remains yours. However, you understand that certain portions of the Service may allow other Users to view, share, edit, and/or otherwise interact with your Client Content, and that family members of the deceased are allowed to edit information you may have posted regarding their deceased relative. By providing or sharing Client Content through the Service, you agree to allow others to view, edit, share, and/or interact with your Client Content in accordance with your settings and this Agreement. Everdays has the right (but not the obligation) in its sole discretion to remove any Client Content that is shared via the Service. If there are any claims of inaccuracy asserted about any of the Client Content, Everdays shall investigate said claims with reasonable dispatch, and will use its best judgment, in its sole discretion, to determine whether the disputed Content should be removed, corrected, or left as is. However, in any case, Everdays is not responsible for any inaccuracy that may occur or exist for any reason whatsoever.
By submitting, posting, displaying, providing, or otherwise making available any Client Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Everdays a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such Client Content and your name, voice, and/or likeness as contained in your Client Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Everdays’ (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your Client Content through the Service, and to use, reproduce, distribute, display and perform such Client Content as permitted through the functionality of the Service and under this Agreement.
In connection with your Client Content, you affirm, represent and warrant the following:
Everdays takes no responsibility and assumes no liability for any Client Content that you or any other Client User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your Client Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your Client Content. You understand and agree that you may be exposed to Client Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Everdays shall not be liable for any damages you allege to incur as a result of or relating to any Client Content.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, technology, system, application tool, process, software, module, standard software application, know-how, methodology and other intellectual property rights owned or used by us as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. Except as provided herein, you will have no rights, title or interests in any of our Intellectual Property Rights as a result of this Agreement, and in no event shall you obtain any source code from us. All use of our Intellectual Property Rights will inure to our benefit.
Except for your Client Content and Trademarks, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, Client Content belonging to other Clients, and User Content (as defined in our User Terms of Service) belonging to other Users (the “Everdays Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Everdays and its licensors (including other Users who post User Content to the Service and other Client Users who post Client Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Everdays Content. Use of the Everdays Content for any purpose not expressly permitted by this Agreement is strictly prohibited. You are not authorized to display or use trademarks, product names, company names, logos, service marks and/or trade dress of other owners featured within this Service without the prior written permission of such owners.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Everdays under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Everdays does not waive any rights to use similar or related ideas previously known to Everdays, or developed by its employees, or obtained from sources other than you.
As between you and us, we will own any and all personally identifiable information that Consumers provide to us through the Service, or that you provide to us on a Consumer’s behalf (“Consumer PII”); however, we may, and you authorize us to, transfer ownership of Consumer PII to HLC to effectuate the sale of an insurance policy. In such case, HLC will have the same obligations to treat Consumer PII as Confidential Information. If consent is obtained from a Consumer as required by any applicable State and/or Federal law, we will disclose the following Consumer PII to you at the time a Consumer completes a Transaction through the Service: Consumer name, address, phone number and e-mail address. You may use Consumer PII only for the purpose of providing at-need and pre-need funeral arrangements or any other business purposes we and you may hereafter agree to in writing. Consumer PII is Confidential Information as that term is defined in Section 13, and you shall treat Consumer PII in a manner consistent with that Section. Furthermore, you agree to modify or amend your privacy policies as necessary to share Consumer PII with us.
Other than set forth elsewhere in this Agreement, during the term of your participation in this Service, there shall be NO fees, dues, commissions or other direct forms of compensation payable by either party to the other. You acknowledge, however, that we will be compensated by HLC for the sales of HLC products to Consumers in connection with Transactions, including Transactions involving your funeral home(s) and you agree that you have no rights or claims to any of this compensation.
During the term of your participation in this Service, you agree to obtain and maintain all licenses and appointments in each state as may be required for the funeral prearrangement and at-need Transactions, including but not limited to any required insurance licensing. You further agree that your representatives will be properly licensed and appointed prior to engaging in the activities set forth in this Agreement or which may be required as part of the Service. You agree to promptly notify us of any material changes with regard to the licensing and appointment of you and/or your representatives.
You agree to comply with all regulations, bulletins, rulings, circular letters, and statutes, federal, state and local, now or hereafter in force, which are applicable to your performance under this Agreement, including, but not limited to, any funeral home or pre-need or at-need license requirements.
Except as otherwise provided in this Agreement, you will be responsible for all costs and expenses incurred by you or your representatives in the performance of your duties under this Agreement, including, but not limited to, computer and related internet expenses, rentals, office facilities, travel expenses, transportation facilities, and licensing fees.
You shall promptly notify us in writing of any Consumer complaint or of any complaint which involves a potential regulatory investigation or potential litigation which you become aware of relating to the Service or Transactions with Consumers which may occur under this Agreement.
Your use of the Service on behalf of a Client is subject to a Client Agreement executed and in force with such Client. Your rights as provided in this Agreement are terminated immediately upon the termination of the Client Agreement. Notwithstanding the foregoing, you or we may terminate this Agreement (i) with or without cause upon thirty (30) days prior written notice to the other party, or (ii) immediately upon the other party’s breach of the terms or conditions of this Agreement.
Termination of this Agreement will not terminate the Client Agreement, which must be done separately, and will not relieve any party of any obligations or liabilities that are expressly indicated to survive termination or expiration of this Agreement and will be without prejudice to any rights that will have accrued to the benefit of any Party prior to such termination or expiration.
For continued use of the Service at no charge to Clients, Clients are required to put on Everdays a minimum of 65% of the individual death cases handled monthly. If you miss the 65% threshold, Everdays may terminate your Client Account in its sole discretion.
Sections 3, 4, 6, 7, 10, 12-24, and 26 will survive the expiration or termination of this Agreement. Further, any termination of this Agreement will not affect the rights of Consumers that may have effectuated Transactions through the Service.
You agree that during the term of this Agreement, you will not enter into any similar mobile-based marketing and transaction service arrangements with third parties, other than eFuneral Solutions, LLC, without our written approval.
The provider of services is Everdays, Inc. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
We offer you the chance to enroll to receive SMS/text messages from Everdays. You may enroll to receive text messages about account-related news and alerts. By enrolling in Everdays’ SMS/text messaging service, you agree to receive text messages from Everdays to your mobile phone number provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such text messages. You are solely responsible for keeping us updated with your current phone number, respectively updating to the latest version of the mobile app, and for any charges incurred by receiving such messages. We will not be liable for information sent to a device that is associated with your outdated mobile phone number or using an outdated app. You acknowledge and agree that the text messages may be sent using an automatic telephone dialing system and that standard message and data rates apply. Consent is not required as a condition of purchase.
To unsubscribe from text messages at any time, reply STOP to any text message you receive from Everdays. You consent that following such a request to unsubscribe, you may receive one final text message from Everdays confirming your request. For help contact us at email@example.com.
By selecting the “I Accept” or “I Agree” button (or something similar), you are signing the Agreement electronically. You agree your electronic signature is the legal equivalent of your manual signature on this Agreement. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, in accessing or making any transaction regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes your signature (hereafter referred to as “E-Signature”), acceptance and agreement as if actually signed by you in writing. You also agree that no certification authority or other third-party verification is necessary to validate your E-Signature and that the lack of such certification or third-party verification will not in any way affect the enforceability of your E-Signature or any resulting contract between you and Everdays. You also represent that you are authorized to enter into this Agreement for all persons who own or are authorized to access any of your accounts and that such persons will be bound by the terms of this Agreement. You further agree that each use of your E-Signature in connection with the Service constitutes your agreement to be bound by the terms and conditions of the Agreement.
When you use the Service or send emails or texts to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on our website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing. You are responsible for providing, at your expense, any access to the internet and any required equipment.
In the course of their activities pursuant to this Agreement, we may disclose Confidential Information to you and wish to protect such Confidential Information in accordance with this Section.
(a) For purposes hereof, “Confidential Information” means any trade secrets; any confidential, proprietary or competitively sensitive information, knowledge, designs, data, or know-how, including Consumer PII; or any other information considered reasonably as “confidential” that we disclose to you. Confidential Information does not include information that (i) is or hereafter becomes generally available to the public other than as a result of a disclosure by you (except that Consumer PII shall be considered Confidential Information notwithstanding such general availability), (ii) was already known to you prior to receipt from us as evidenced by prior written documents in its possession not subject to an existing confidentiality obligation to us, (iii) is disclosed to you on a non-confidential basis by a person who is not in default of any confidentiality obligation to us, or (iv) is developed by or on your behalf without reliance on Confidential received hereunder.
(b) You agree to (i) use such Confidential Information solely in connection with the activities contemplated by this Agreement and (ii) not disclose such Confidential Information to any person other than those of your agents and representatives who need to know such Confidential Information in order to accomplish the objectives for which it was disclosed. You agree to inform such agents and representatives of the confidential nature of the information and cause them to observe the limitations on the use thereof. Notwithstanding the foregoing, you may disclose Confidential Information to the extent necessary to comply with applicable laws or regulations or with an order issued by a court or regulatory body with competent jurisdiction; provided that, in connection with such disclosure, you notify us in advance of such disclosure and use commercially reasonable efforts to obtain confidential treatment or an appropriate protective order, to the extent available, with respect to such Confidential Information.
(c) Upon our request, you agree to promptly redeliver to us all Confidential Information provided to you in tangible form, and you will not retain any copies, extracts or other reproductions, in whole or in part, of such Confidential Information. Notwithstanding the foregoing, your legal counsel will be permitted to retain in its files one copy of all Confidential Information to evidence the scope of and to enforce the parties’ obligation of confidentiality under this Section.
Everdays uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and Consumer PII. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk. You also agree that the security you will provide for any Consumer PII shall be consistent with, or above, industry standards. Should a breach of Consumer PII occur, you agree to notify us within twenty-four (24) hours of said breach. You agree to cooperate with us regarding any breach of Consumer PII including, but not limited to reporting of the breach, notification to individuals, providing information regarding the breach, and any other items necessary under applicable State or Federal laws or as may be required by us, regulators or law enforcement. You shall, to the fullest extent permitted by law, indemnify and hold harmless us and our directors, employees, officers, owners, and affiliates from and against any and all liability, loss, cost, expense, or damage incurred or sustained due to your fraud, willful misconduct or negligence under this Paragraph. You agree to defend and hold us and our agents, directors, employees, officers, owners, and affiliates harmless from all claims, liabilities, damages, or judgments involving a third party, including our costs and attorney fees, which arise as a result of your failure to meet any of your obligations under this Paragraph.
Since we respect artist and content owner rights, it is Everdays’ policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Everdays’ copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Address: 320 Martin St
Birmingham MI, 48009
Please note that this procedure is exclusively for notifying Everdays and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Everdays’ rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Everdays has adopted a policy of terminating, in appropriate circumstances, Clients who are deemed to be repeat infringers. Everdays may also at its sole discretion limit access to the Service and/or terminate the Client Accounts of any Clients who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You agree to defend, indemnify and hold harmless Everdays and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) Client or User Content or any content that is submitted via your Client User Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EVERDAYS OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, EVERDAYS, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FURTHER, EVERDAYS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND EVERDAYS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EVERDAYS, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL EVERDAYS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVERDAYS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) CLIENT CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL EVERDAYS, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO EVERDAYS HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF EVERDAYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You and we agree that it would be impossible or inadequate to measure and calculate damages from breach of the provisions set forth in this Agreement. Accordingly, you and we agree that the non-breaching party will have available, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach of this Agreement and to specific performance of any such provision of this Agreement.
At all times, each party’s performance under this Agreement will comply with all applicable laws, rules and regulations, including all applicable laws, rules, regulations and best practices concerning data privacy and security. In the event either party breaches any of its obligations under this Section, the other party may take any action available under law or contract.
You warrant that you will not use the Everdays software platform (“Systems”) in a manner subject to the EU General Data Protection Regulation (“GDPR”). Furthermore, you acknowledge that the Systems may not meet the requirements of GDPR and that we have not represented the Systems as complying with such requirements. You also agree not to (i) permit any third party to access or use the Systems in violation of any U.S. law or regulation, or (ii) export the Systems or otherwise remove them from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, you shall not permit any third party to access or use Systems in, or export them to, a country subject to a United States embargo.
Neither you nor we will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a Party, which may include, but not be limited to, denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, pandemics and government action.
This Agreement shall be governed by the internal substantive laws of Michigan, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Oakland County, Michigan for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Oakland County, Michigan is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM EVERDAYS. For any dispute with Everdays, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Everdays has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Oakland County, Michigan, unless you and Everdays agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Everdays from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND EVERDAYS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
We may make available software to access the Service via a mobile device (“Mobile Applications”). To use any Mobile Applications, you must have a mobile device that is compatible with the Mobile Applications. Everdays does not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Everdays hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Everdays Client User Account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that Everdays may from time to time issue upgraded versions of the Mobile Applications and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Everdays or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Everdays reserves all rights not expressly granted under this Agreement. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Mobile Applications originates in the United States and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.
The following applies to any Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Everdays, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Everdays as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Everdays as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Everdays, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Everdays acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and Everdays only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Everdays, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Everdays’ Google-Sourced Software.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Everdays without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Everdays may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Everdays in our sole discretion. Everdays reserves the right to determine the form and means of providing notifications to our Client Users, provided that you may opt out of certain means of notification as described in this Agreement. Everdays is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Everdays may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Client User Terms of Service. If you do not agree to any of these terms or any future Client User Terms of Service, do not use or access (or continue to access) the Service.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Everdays’ failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at email@example.com with any questions regarding this Agreement.