Terms & Conditions

TERMS AND CONDITIONS

Last Updated: 12/20/2021

These Terms and Conditions of are entered into by and between you, as a visitor or a Subscriber to the Website (as defined below) (“You”) and Everprep, Inc. (“Provider,” “we,” or “us”). Provider and You may be referred to individually as a “Party” and collectively as the “Parties.”  The following terms and conditions, together with any Order Forms or other documents they expressly incorporate by reference (collectively, the “Agreement”), govern your access to and use of www.everprep.com (the “Website”) and our Services (as defined below).

Please note that the Online Stores (as defined below) on the subdomains of the Website are not operated by us and neither do we have control over the operation of the Online Stores. Your access and use of contents, features, and functionality on Online Stores are governed by the terms and conditions and privacy policies and other similar agreements publicized by the Online Stores. The Website is not a marketplace. We are neither a content provider nor an educational institution. Any contract of sale through Online Stores is directly between the operator of the Online Stores and the buyer. The interaction between any visitor or purchaser at any Online Store and such Online Store is strictly between such visitor or purchaser and such Online Store, and we are not obligated to intervene in any dispute arising between such visitor or purchaser and any Online Store. For the sake of clarity, if we are to provide any technical support to any visitor or purchaser at any Online Store, we would be providing such services as part of our Services to our own clients, such visitor or purchaser is not our Subscriber or client, and under no circumstances shall the provision of support services establish any direct relationship between such visitor or purchaser and us.

FOR BOTH VISITORS AND SUBSCRIBERS TO OUR WEBSITE:

Please read this Agreement carefully before you start to use the Website. By using the Website, you accept and agree to be bound and abide by this Agreement, and our Privacy Policy, found at https://sales-test.everprep.com/privacy-policy/, incorporated herein by reference. If you do not want to agree to this Agreement or the Privacy Policy, you must not access or use the Website.

This Website is offered and available to visitors or users who are 18 years of age or older and who are residing in the United States. By accessing or using this Website, you represent and warrant that you are of legal age to form a binding contract with Provider. If you do not meet all of these requirements, you must not access or use the Website.

We may revise and update the visitor terms from time to time in our sole discretion. All changes are effective immediately when we post them here, and apply to all access to and use of the Website thereafter.

Your continued use of the Website following the posting of any revisions means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to visitors and users, including the Subscribers.

The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Provider, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.   You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as expressly permitted by us.

You may use the Website only for lawful purposes and in accordance with this Agreement.  Additionally, you agree not to: use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, or use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

This Website may include content provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Provider, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Provider. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.  If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

Additional terms and conditions may also apply to specific portions, services, or features of the Website. All such additional terms and conditions are hereby incorporated by this reference into these Terms and Conditions.

TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

THE WEBSITE AND ITS CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PROVIDER NOR ANY PERSON ASSOCIATED WITH PROVIDER MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. TO THE FULLEST EXTENT PROVIDED BY LAW, PROVIDER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

All other feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: support@everprep.com

Reporting Claims of Copyright Infringement

We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from any Online Store infringe your copyright, please contact the Online Store before you contact us since we do not pre-screen materials on the Online Store and the operator of the Online Store is fully responsible for the materials. If you fail to reach the Online Store after making several attempts, we can help you contact the Online Store. If you believe any materials accessible on or from this Website (not including the Online Stores) infringe your copyright, you may request removal of those materials (or access to them) from the Website by submitting notification to us at support@everprep.com.

In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

  • Your physical or electronic signature.
  • Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works.
  • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
  • Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the written notice is accurate.
  • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.

Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

Counter Notification Procedures

If you believe that material you posted on the Online Store was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a “Counter Notice”) by submitting written notification to us at support@everprep.com. Pursuant to the DMCA, the Counter Notice must include substantially the following:

  • Your physical or electronic signature.
  • An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
  • Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
  • A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website may be found) and that you will accept service from the person (or an agent of that person) who provided the Website with the complaint at issue.

The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.

Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

California Civil Code Section 1789.3

California websites users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

Complaints or requests for further information can be sent to us at support@everprep.com.

 

FOR SUBSCRIBERS:

By signing Everprep Order Form(s) that references these online Terms and Conditions, You (as the “Subscriber”) and Provider each signify that you have read, understand, and agree to be bound by the terms and conditions hereof. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to these terms and conditions through their undersigned authorized representatives.

1.     DEFINITIONS.

1.1.    “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

1.2.    “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

1.3.    “Aggregated Statistics” means data and information related to Subscriber’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

1.4.    “Authorized User” means Subscriber’s employees, consultants, contractors, and agents (i) who are authorized by Subscriber to access and use the Services under the rights granted to Subscriber pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.

1.5.    “Subscriber Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Subscriber or an Authorized User through the Services, including contents such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded to the Online Store.

1.6.    “Subscriber Systems” means the Subscriber’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and the Subscriber’s Online Store, whether operated directly by Subscriber or through the use of third-party services.

1.7.    “Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Subscriber’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.

1.8.    “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Subscriber either electronically or in hard copy form.

1.9.    “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

1.10.  “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

1.11.  “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

1.12.  “Online Store” means any online store created by Subscriber based on the Services, whether on the subdomain of the Provider’s website or on any domain name purchased by the Subscriber.

1.13.  “Order Form” means an ordering document executed by the Parties that specifies the Services purchased by Subscriber under this Agreement. Each Order Form shall incorporate this Agreement by reference.

1.14.  “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

1.15.  “Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Subscriber or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Subscriber’s access to or use of the Services, but does not include Subscriber Data.

1.16.  “Services” means the Everprep software-as-a-service offered by Provider, which will enable the users to create, build and operate their own online store.

1.17.  “Subscription Term” means the then-current Initial Term or Renewal Term of the applicable Order Form(s) during which Authorized Users are authorized to use or access the Service pursuant to the terms set forth in this Agreement, unless earlier terminated as set forth in Section 13.

1.18.  “Third-Party Products” means any third-party products provided with or incorporated into the Services.

2.     ACCESS AND USE.

2.1.    Provision of Access. Subject to the terms and conditions of this Agreement, Provider hereby grants Subscriber a non-exclusive, non-transferable (except in compliance with Section 14.6) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Subscriber’s internal business use. Provider shall provide to Subscriber the necessary passwords and network links or connections to allow Subscriber to access the Services.

2.2.    Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Subscriber a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 14.6) license to use the Documentation during the Term solely for Subscriber’s internal business purposes in connection with its use of the Services.

2.3.    Use Restrictions. Subscriber shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Subscriber shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law.

2.4.    Reservation of Rights. The Provider shall have the following rights under this Agreement and none of its right in this section shall be modified by any other section of this Agreement.

2.4.1   Provider reserves all rights not expressly granted to Subscriber in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Subscriber or any third party any Intellectual Property Rights or other right, title, or interest in or to the Provider IP.

2.4.2   Provider shall have the right to withdraw or amend the Website or the Services in its sole discretion without notice at any time. From time to time, Provider may restrict access to some parts of the Website, or the entire Website, to Subscriber or certain users of Subscriber’s Online Store for any or no reason, solely in its discretion.

2.4.3   Provider is under no obligation to make any Services or features of the Services available. Provider will not be liable if for any reason all or any part of the Website or the Services is unavailable at any time or for any period.

2.4.4   Provider shall have the right to take any action with respect to any Subscriber Data that it deems necessary or appropriate in its sole discretion, including if Provider believes that such Subscriber Data violates this Agreement, infringes any intellectual property right or other right of any person or entity, or could create liability for the Provider.

2.4.5   Provider shall have the right to refuse service to Subscriber or refuse continuing to provide service to Subscriber for any reason at any time by written notice to Subscriber.

2.4.6   Provider shall have the right to remove or refuse to post any Subscriber Data for any or no reason in our sole discretion.

2.4.7   Provider shall have the right to take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website, the Services or any Online Store.

2.4.8   Provider shall have the right to disable or modify the subdomain of the Online Store, whether the subdomain is chosen by Subscriber or provided by Provider, at any time in its sole discretion for any or no reason, and shall not be liable to Subscriber or any third party for such action.

2.4.9   Provider shall have the right, but has no obligation to, monitor any content that appears on the Online Store or review any conduct occurring through the Online Store or the Website or the Services, including any interactions between Subscriber and the visitor or purchaser at the Online Store.

2.4.10                Provider shall have the right to remove Subscriber and any Subscriber Data without warning if Subscriber violate any of the provisions of this Agreement.

2.4.11                Provider shall have an absolute right to modify, change, alter, suspend, or terminate any provision of this Agreement without warning at any time.

2.4.12                Without limiting the foregoing, Provider has the right to cooperate fully with any law enforcement authorities or court order requesting or directing Provider to disclose the identity or other information of anyone posting any materials on or through the Services or the Website. Subscriber agrees to indemnify and hold all Provider Indemnitees harmless from any claim or demand, including reasonable attorneys’ fees, resulting from any action taken by any of the foregoing parties during, or taken as a consequence of, investigations by either such parties or law enforcement authorities.

2.5.    Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Subscriber’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Subscriber’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Subscriber, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Subscriber has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Subscriber or any Authorized User is prohibited by applicable law; or (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Subscriber to access the Services. Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Subscriber and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber or any Authorized User may incur as a result of a Service Suspension.

2.6.    Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Subscriber’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Subscriber, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Subscriber acknowledges that Provider may compile Aggregated Statistics based on Subscriber Data input into the Services. Subscriber agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Subscriber or Subscriber’s Confidential Information.

2.7.    Service and System Control.   Except as otherwise expressly provided in this Agreement, as between the parties:

2.7.1   Provider has and will retain sole control over the operation, provision, maintenance, and management of the Provider IP; and

2.7.2   Subscriber has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Subscriber Systems, and sole responsibility for all access to and use of the Provider IP by any Person by or through the Subscriber Systems or any other means controlled by Subscriber or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider IP; and (iii) conclusions, decisions, or actions based on such use.

2.8.    Service Management.   Subscriber shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement and shall provide the contact information of such service manager in its account registration. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Subscriber shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity.

2.9.    Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider IP that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes. No requested changes will be effective unless and until memorialized in a written change order signed by both parties.

2.10.  Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).

2.11.  Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Subscriber’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Provider IP, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Subscriber or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Subscriber or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.11 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.

2.12.  Third Party Services.  Provider may from time to time recommend, provide Subscriber with access to, or enable third party software, applications, products, services or website links (collectively, “Third Party Services”) for Subscriber’s consideration or use, such as Stripe as the payment gateway. Such Third Party Services are made available only as a convenience, and Subscriber’s purchase, access or use of any such Third Party Services is solely between Subscriber and the applicable third party services provider. Any use by Subscriber of Third Party Services is entirely at Subscriber’s own risk and discretion, and it is Subscriber’s responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. The interaction between Subscriber and any provider of Third Party Services is strictly between Subscriber and such provider, and Provider is not obligated to intervene in any dispute arising between Subscriber and such provider. Provider does not provide any warranties or make representations to Subscriber with respect to Third Party Services. Subscriber acknowledges that Provider has no control over Third Party Services and shall not be responsible or liable to Subscriber or anyone else for such Third Party Services. Provider does not guarantee the availability of Third Party Services and Provider may disable access to any Third Party Services at any time in its sole discretion and without notice to Subscriber. Provider shall not be responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. Under no circumstances shall Provider be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or Subscriber’s contractual relationship with any provider of any Third Party Services. Subscriber agrees to indemnify and hold all Provider Indemnitees harmless from any claim or demand, including reasonable attorneys’ fees, arising out of Subscriber’s use of a Third Party Service or Subscriber’s relationship with any provider of Third Party Service.

3.     CUSTOMER OBLIGATIONS.

3.1.    General. Subscriber is responsible and liable for all uses of the Services and Documentation resulting from access provided by Subscriber, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Subscriber is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Subscriber will be deemed a breach of this Agreement by Subscriber. Subscriber shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.

3.2.    Third-Party Products. Provider may from time to time make Third-Party Products available to Subscriber. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Subscriber does not agree to abide by the applicable terms for any such Third-Party Products, then Subscriber should not install or use such Third-Party Products.

3.3.    Not a Marketplace.  Any contract of sale through Online Store is directly between the Subscriber and the buyer. Use of contents, features, and functionality on each Online Store is subject to the terms of use and privacy policy and other use agreement as publicized by such Online Store. The interaction between any visitor or purchaser at any Online Store and such Online Store is strictly between such visitor or purchaser and Subscriber, and Provider is not obligated to intervene in any dispute arising between such visitor or purchaser and Subscriber. For the sake of clarity, if Provider is to provide any technical support to any visitor or purchaser of any Online Store, Provider would be providing such services as part of the Services to Subscriber, and under no circumstances shall the provision of support services establish any relationship between such visitor or purchaser and Provider.

3.4.    Additional Obligations. Subscriber shall also be responsible for the following:

3.4.1   Ensuring that the name of the Subscriber is clearly visible on the website of its Online Store.

3.4.2   Complying with all applicable laws, rules and regulations in its use of the Services and its performance of obligations under this Agreement, including ensuring compliance of the Subscriber Data with any applicable laws or regulations and anyone else’s intellectual property rights.

3.4.3   Subscriber Data not containing any inappropriate contents (determined, in Provider’s sole discretion) such as content that is libelous, slanderous, pornographic, obscene, unlawful, threatening, defamatory, or otherwise objectionable or violates any party’s intellectual property or any other part of this Agreement.

3.4.4   Fulfilling all of its tax obligations or liabilities related to the use of the Website or the Services.

3.4.5   Not using the Services or the Website for any illegal or unauthorized purpose or for any unintended purpose, including without limitation, (a) data mining, robots, or similar data gathering or extraction methods, (b) transmit, distribute, send, etc. viruses, worms, or any other code that may be deemed dangerous, harmful, or destructive in any manner, (c) engage in any activities that will result in sending spam to anyone, (d) try to gather personal information on anyone, outside of the limited permissible uses for offering goods and services via the Online Store, and (e) impersonate Provider or any of the Provider Indemnitees.

3.4.6   Keeping its account secure and be liable for any acts, omissions and defaults arising from any use of its account.

3.4.7   Ensuring that all persons who access the Website or the Services through its account are aware of this Agreement and comply with this Agreement.

3.4.8   Activating, maintaining and deactivating any payment gateways that are created as part of the Services to enable Subscriber to open the Online Store and collect payment. Subscriber acknowledges and agrees that the payment gateways are third party services that Provider has no control over and is not responsible for.

3.4.9   Activating, maintaining and deactivating any domain name for its Online Store.

4.     SERVICE. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available.  By uploading the Subscriber Data to its Online Store, Subscriber agrees (a) to allow other internet users to view the Subscriber Data it posts publicly to its Online Store; (b) to allow Provider to store, display and use such Subscriber Data; and (c) that Provider can, at any time, review and delete any the Subscriber Data as determined in its sole discretion, although Provider is not obligated to do so.

5.     DATA BACKUP.  The Services do not replace the need for Subscriber to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA OR ANY INTERRUPTION OR SUSPENSION OF SERVICES.

6.     SECURITY.

6.1.    Information Security. Provider will employ security measures in accordance with Provider’s data privacy and security policy as amended from time to time.

6.2.    Subscriber Control and Responsibility. Subscriber has and will retain sole responsibility for: (a) all Subscriber Data, including its content and use, and all activities of the Online Store; (b) all information, instructions, and materials provided by or on behalf of Subscriber or any Authorized User in connection with the Services; (c) Subscriber Systems; (d) the security and use of Subscriber’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider IP directly or indirectly by or through the Subscriber Systems or its or its Authorized Users’ Access Credentials, with or without Subscriber’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

6.3.    Access and Security. Subscriber shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Subscriber Data, including the uploading or other provision of Subscriber Data for processing by the Services.

7.     FEES AND PAYMENT.

7.1.    Fees. Subscriber shall pay all fees specified in all applicable Order Form(s), which can also be found on our pricing page ([URL Link]) (“Fees”). Except as otherwise specified herein or in any Order Form, all Fees are quoted and payable in United States dollars, payment obligations are non-cancelable, and Fees paid are non-refundable. Provider may adjust the Fees from time to time upon at least 30 days’ prior notice to Subscriber. Such notice may be provided at any time by posting the changes to the Website or the administration menu of the Online Store via an announcement or to the primary email address of Subscriber on file.

7.2.    Payment.  Unless otherwise set forth in an Order Form, Subscriber will pay to Provider (by wire transfer or other method mutually acceptable to the Parties) all Fees on receipt of the applicable invoice, free and clear of any deductions or withholdings or any transaction fees charged by the payment method whatsoever. Late payment of Fees may be subject to interest on the past due amount at the lesser of 1.5% per month or the maximum rate permitted by applicable law. Subscriber is responsible for providing complete and accurate billing address and contact information to Provider. If Subscriber believes a particular invoice is incorrect, Subscriber must contact Provider in writing at support@everprep.com within sixty (60) days of such invoice date to be eligible to receive an adjustment or credit.

7.3.    Taxes. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on Provider’s income. If Provider doesn’t charge Subscriber the taxes in addition to the Fees, Subscriber is responsible for determining the tax obligations and remitting the taxes to the appropriate tax authorities.

7.4.    Suspension.  If Subscriber is thirty (30) days or more overdue (except for charges then under reasonable and good faith dispute), then, following five (5) business days’ written notice and opportunity to cure (which notice may be provided via email), in addition to any of its other rights or remedies, Provider shall have the right to suspend Subscriber’s access to the Service and the Online Store until such amounts are paid in full. For purpose of clarity, and avoidance of doubt, Subscriber will continue to be charged for the Services during any period of suspension.

7.5.    Collection.   Provider shall have the right to pursue fees owed using collection methods which may include charging other payment methods on file with Provider and/or retaining collection agencies or legal counsel. Subscriber agrees to reimburse Provider, upon demand, for any and all costs, including reasonable attorneys’ fees, incurred in collecting any sums payable by Subscriber under this Agreement.

8.     CONFIDENTIAL INFORMATION.

8.1.    Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 8.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”.  Without limiting the foregoing: all Provider IP are the Confidential Information of Provider and the financial terms and existence of this Agreement are the Confidential Information of each of the Parties.

8.2.    Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

8.3.    Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

8.3.1   not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

8.3.2   except as may be permitted by and subject to its compliance with Section 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8;

8.3.3   safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;

8.3.4   promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts to prevent further unauthorized use or disclosure; and

8.3.5   ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 8.

8.3.6   Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 8 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

8.4.    Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

9.     INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK.

9.1.    Provider IP. Subscriber acknowledges that, as between Subscriber and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.

9.2.    Subscriber Data. Provider acknowledges that, as between Provider and Subscriber, Subscriber owns all right, title, and interest, including all intellectual property rights, in and to the Subscriber Data. Subscriber hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Subscriber Data and perform all acts with respect to the Subscriber Data as may be necessary for Provider to provide the Services to Subscriber, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Subscriber Data incorporated within the Aggregated Statistics.

9.3.    Feedback. If Subscriber or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Subscriber hereby assigns to Provider on Subscriber’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

9.4.    License. Subscriber hereby grants Provider the non-exclusive and fully-paid right and license to use the names, trademarks, service marks and logos associated with its Online Store to promote the Website and the Services.

9.5.    Trademark.  The Provider’s name, the terms, and all related names, logos, product and service names, designs, and slogans are trademarks or marks of the Provider or its affiliates or licensors. Subscriber shall not use such marks without the prior written permission of Provider. All other names, logos, product and service names, designs, and slogans on the Website are the trademarks of their respective owners.

10.  REPRESENTATIONS AND WARRANTIES.

10.1.  Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that:

10.1.1                If it’s an entity, it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

10.1.2                it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;

10.1.3                the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and

10.1.4                when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

10.2.  Additional Subscriber Representations, Warranties, and Covenants. Subscriber represents, warrants, and covenants to Provider that Subscriber owns or otherwise has and will have the necessary rights and consents in and relating to the Subscriber Data so that, as received by Provider and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights, of any third party or violate any applicable Law. Subscriber also represents, warrants, and covenants to Provider that all the information Subscriber provide on the Website or to Provider is correct, current, and complete.

Subscriber acknowledges and agrees that the person signing up for the Services or signing the Order Form will be the contracting party (i.e. the Subscriber) for the purposes of this Agreement and will be the person who is authorized to use any corresponding account the Provider may provide to Subscriber in connection with the Services. If a person is signing up for the Services or signing the Order Form on behalf of his/her employer (i.e. the employer will be the Subscriber), the signing person must indicate so promptly and by his/her signature, represent and warrant that he/she has the authority to bind his/her employer to this Agreement. In the event of a dispute regarding ownership of any account, Provider reserves the right to request documentation to determine or confirm account ownership. If Provider is unable to reasonably determine the rightful owner of the account created for Subscriber, without prejudice to Provider’s other rights and remedies, Provider reserves the right to temporarily disable an account and suspend the usage of Services until resolution has been determined between the disputing parties. Subscriber also represents and warrants that (i) it is not, or is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Department of the Treasury’s Office of Foreign Asset Control (“OFAC”), or any similar list or by any law, order, rule or regulation or any Executive Order of the President of the United States (“Prohibited Person”), (ii) it is not, or is it owned or controlled directly or indirectly by, any person, group, entity or nation which is acting directly or indirectly for or on behalf of any Prohibited Person; (iii) it has not conducted nor will conduct business nor have engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation; and (iv) (iv) It is not prohibited by any sanctions program as maintained by OFAC from transacting with the Provider.

10.3.  DISCLAIMER OF WARRANTIES.  ALL SERVICES AND PROVIDER IP ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

11.  INDEMNIFICATION.

11.1.  Indemnification.  Subscriber shall indemnify, defend Provider, its affiliates, licensors, and service providers and each of their respective officers, directors, employees, agents, successors, and assigns (including Provider, each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by Subscriber or a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:

11.1.1                Subscriber Data, including any processing of Subscriber Data by or on behalf of Provider in accordance with this Agreement;

11.1.2                any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Subscriber or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Subscriber or any Authorized User to the extent prepared without any contribution by Provider;

11.1.3                allegation of facts that, if true, would constitute Subscriber’s breach of any of its representations, warranties, covenants, or obligations under this Agreement;

11.1.4                negligence or more culpable act or omission (including recklessness or willful misconduct) by Subscriber, any Authorized User, or any third party on behalf of Subscriber or any Authorized User, in connection with this Agreement;

11.1.5                Subscriber’s breach of any of its representations, warranties, covenants, or obligations under this Agreement;

11.1.6                Any activities of the Online Store or any improper use of our Services or the Online Store;

11.1.7                Subscriber’s violation of any law or the rights of a third party; or

11.1.8                Subscriber’s interaction with any visitor or purchaser at its Online Store.

11.2.  Indemnification Procedure. Provider shall notify Subscriber of any Action for which Provider believes any Provider Indemnitee is entitled to be indemnified pursuant to Section 11.1. Provider shall cooperate with reasonable requests of Subscriber at the Subscriber’s sole cost and expense. The Subscriber shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the related Provider Indemnitee to handle and defend the same, at the Subscriber’s sole cost and expense. The related Provider Indemnitee may participate in and observe the proceedings with counsel of their own choosing. The Subscriber shall not settle any Action on any terms or in any manner that adversely affects the rights of the related Provider Indemnitee or the Provider without their prior written consent. If the Subscriber fails or refuses to assume control of the defense of such Action, the related Provider Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Subscriber, in each case in such manner and on such terms as such Provider Indemnitee may deem appropriate. The related Provider Indemnitee’s failure or the Provider’s failure to perform any obligations under this Section 11.2 will not relieve the Subscriber of its obligations under this Section 11, except to the extent that the Subscriber can demonstrate that it has been materially prejudiced as a result of such failure.

12.  LIMITATIONS OF LIABILITY. 

12.1.  EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO THE SLA; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12.2.  CAP ON MONETARY LIABILITY. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS CUSTOMER HAS PAID TO PROVIDER UNDER THIS AGREEMENT FOR THE SERVICES IN THE LAST 12 MONTHS OUT OF WHICH LIABILITY AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13.  TERM AND TERMINATION. 

13.1.  Term of Agreement. The “Term” of the Agreement shall be the duration of the then-current Initial Term or Renewal Term(s) of the applicable Order Form(s). For purposes of clarity, the Term of this Agreement will commence on the Effective Date specified in the first Order Form and will continue until either (a) the Order Form(s) are terminated in accordance with Section 13.3 herein, or (b) all Order Forms under this Agreement have expired.

13.2.  Term of Subscriptions. The “Initial Term” of each Order Form will commence on the Effective Date set forth on such Order Form and will continue for the subscription period outlined on such Order Form, unless terminated earlier by either Party upon thirty (30) days prior notice to the other Party. Unless otherwise set forth on the relevant Order Form, each Order Form will automatically renew after the Initial Term for successive one-month periods or twelve-month periods, whichever is applicable according to the billing cycle on the relevant Order Form (each a “Renewal Term”), unless either Party gives prior written notice (Section 14.1) of its intent not to renew such Order Form at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term.

13.3.  Termination.  Provider may terminate this Agreement or an Order Form immediately: (i) if Subscriber breaches or violates any provision of this Agreement or the Order Form; and (ii) if Subscriber becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such proceeding is not favorably resolved within sixty (60) days.

13.4.  Effect of Expiration or Termination.  Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

13.4.1                all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;

13.4.2                Subscriber shall immediately cease all use of any Services or Provider IP and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider IP or Provider’s Confidential Information; and (ii) permanently erase all Provider IP and Provider’s Confidential Information from all systems Subscriber directly or indirectly controls; and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 13.4.2;

13.4.3                notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; (ii) Provider may retain Subscriber Data; and (iii) Subscriber may retain Provider IP, in the case of each of subclause (i), (ii) and (iii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Provider may also retain Subscriber Data in its backups, archives, and disaster recovery systems until such Subscriber Data is deleted in the ordinary course; and (v) all information and materials described in this Section 13.4.3 will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;

13.4.4                Provider may disable all Subscriber and Authorized User access to the Provider IP;

13.4.5                Any outstanding balance owed to Provider for Subscriber’s use of the services through the effective date of such termination will immediately become due and payable in full.

13.4.6                Provider will cease providing the Services and the Online Store will be taken offline. Subscriber will no longer be able to access the Online Store.

13.5.  Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 2.3, Section 8, Section 10.3, Section 11, Section 12, Section 13.4, this Section 13.5, and Section 14.

1.     MISCELLANEOUS. 

1.1.    Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order Form(s) (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section. Subscriber acknowledges and agrees that Provider may notify Subscriber of relevant information regarding the Services, the Agreement or the Website in any of the following ways: (a) by emailing Subscriber at the contact information Subscriber provides in its account registration, (b) by posting a notice in the dashboard of Subscriber’s account, and (c) by posting the notice elsewhere on the Website in an area suitable to the notice. It is Subscriber’s responsibility to periodically review the Platform for such notices

1.2.    Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

1.3.    Amendment and Modification; Waiver. Provider may revise and update this Agreement from time to time in its sole discretion. All changes are effective immediately when Provider post them on the Website, and apply to all access to and use of the Website and the Services thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Website. Subscriber’s continued use of the Website or the Services following the posting of revised Agreement means that Subscriber accepts and agrees to the changes. Subscriber is expected to check the Website frequently so Subscriber is aware of any changes. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

1.4.    Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

1.5.    Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Washington in each case located in the city of Seattle and County of King, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Both Parties agree to waive the right to trial by jury. Subscriber further agrees that any proceedings to resolve any disputes shall be done solely on an individual basis and that Subscriber will not seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Subscriber acts or proposes to act in a representative capacity.

1.6.    Assignment. Subscriber may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

1.7.    Export Regulation. Subscriber shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Subscriber Data outside the US.

1.8.    Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Sections 8 and 9 or, in the case of Subscriber, Section 2.3 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

1.9.    Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b) second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference. Before you become a Subscriber and use our Services, you will also be required to sign a Data Processing Agreement.