Everflow Service Terms
(last updated September 29, 2016)
The following terms and conditions (the "Service Terms") are a legal contract between you and Everflow. By selecting the "agree" or "accept" option or by using Everflow's Platform Services that are offered subject to these Service Terms, you are agreeing to be bound by these Service Terms. Please read them carefully before proceeding.
In these Service Terms, the words "Everflow," "we," and "us" refer to Everflow Technologies Inc. The words "Customer" and "you" refer to the subscriber to our Platform Services, whether an individual, corporation, or other entity. You may not use these services unless you accept these Service Terms and have the power and legal right to form a contract with us. Any individual subscribing to or using our services in the name of a company or other organization represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Service Terms.
The following terms and any others defined in these Service Terms will be interpreted according to the definitions given.
- "Authorized User" means you (if you are an individual) or an individual employee or agent of yours who has been assigned unique credentials to access and use the Platform Services, whether or not that individual is accessing or using the Platform Services at any particular time.
- "Everflow API" means the application programming interfaces provided by Everflow as a mechanism for access to the Platform Services.
- "Order Form" means Everflow's online or written order form or account setup form, as submitted by Customer and accepted by Everflow, that specifies the pricing for the use of the Platform Service, and that references these Service Terms.
- "Partner" means any third party authorized by Customer to access and use the Platform Services, or which supplies advertising or advertising inventory to Customer in connection with Customer's use of the Platform Services.
- "Platform Services" means the web-based advertising network, affiliate tracking, targeting, reporting and analytics services included in the services to be supplied by Everflow, as specified in the Order Form (and any applicable service description referenced in the Order Form), that are facilitated by Everflow's cloud platform.
- PLATFORM SERVICES
- Authorization. Subject to your compliance with the terms and conditions of these Service Terms, Everflow will provide your Authorized Users with access to and use of the Platform Services which you have purchased and for which you pay, solely for your internal business purposes and in accordance with Everflow's relevant end-user documentation. The Platform Services and Everflow API may be used only in accordance with the documentation and specifications provided by Everflow. You and your Authorized Users will access the Everflow API and Platform Services using the login credentials and Everflow API Keys assigned to you by Everflow. Everflow may monitor your use of the Everflow API to ensure quality, improve Everflow products and services, and verify your compliance with these Service Terms. Your use of the Platform Services is further subject to any usage limitations indicated in the Order Form or in Everflow's applicable service description referenced therein or provided by Everflow.
- Maintenance and Support. If the Order Form or Everflow's associated service description provides for Customer to receive maintenance and/or technical support in connection with the Platform Services, then (unless otherwise set forth in the Order Form or service description): (i) such maintenance will consist of access to new features or performance improvements in the Platform Services if and when Everflow makes any such features or improvements generally available to its subscriber base at no additional charge, and (ii) such technical support will consist of first-level telephone or email assistance in accordance with Everflow's Service Level Agreement attached to or referenced in the Order Form.
- Restrictions. You may not: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Platform Services or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provided any third parties with direct access to the Everflow API or Platform Services; (iii) provide any third parties other than Partners with access to any of the Platform Services, or use any of the Platform Services for time sharing or similar purposes for the benefit of any third party; (iv) remove any copyright or proprietary notices contained in the Platform Services or any output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure or monitoring system provided or used by Everflow in connection with the Platform Services or Everflow API; (vi) access the Platform Services via any bot, web crawler or non-human user except to the extent the Everflow API permits such access; (vii) introduce into the Platform Services any software, virus, worm, "back door," Trojan Horse, or similar harmful code; (viii) access or use (or permit a third party to access or use) the Platform Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Platform Services or for any other benchmarking or competitive purposes; or (ix) interfere or attempt to interfere in any manner with the proper workings of the Everflow API or Platform Services, or engage in any activities that adversely affect the functionality or performance of the Everflow API or Platform Services. All rights in the Platform Services not expressly granted herein are reserved.
- Third Party Integrations. Everflow offers Customers the option of sending data and information to, and receiving data and information from analytics or other services provided by third parties ("Third Party Integration Providers"). Customer is solely responsible for establishing a contractual relationship with any such Third Party Integration Providers and complying with the terms of such contractual relationship. Everflow shall not be responsible or liable for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data or any other harm to Customer or any other party caused by any Third Party Integration Providers, including without limitation, by Everflow's integration with such Third Party Integration Providers and the use of any data or information received from such Third Party Integration Providers.
- CUSTOMER OBLIGATIONS
- Responsibilities in Using Platform Services. You are responsible for: (i) maintaining the confidentiality of any user IDs, passwords and other credentials associated with your account, (ii) all activities that occur with respect to your account, (iii) your use of the Platform Services and compliance with these Service Terms, and (iv) any Customer-furnished data. Further, you acknowledge and agrees that you shall remain liable for all actions and omissions of your Authorized Users and Partners hereunder or under any applicable separate agreement.
- Advertising Obligations. You shall not and shall cause each of your Partners not to, directly or indirectly, in connection with their business practices or activities, or in connection with any advertisements or properties on which advertisements appear: (i) facilitate or promote illegal, deceptive, or fraudulent activity, or contain content that is illegal; (ii) contain content that is or promotes activities that are, in Everflow's sole discretion, likely to generate liability for Everflow or negatively affect Everflow's reputation; (iii) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; ; or (iv) use the Platform Services to target advertisements to children under the age of 13 years.
- Correction; Suspension. If Customer's use of the Everflow API or Platform Services, or any advertising or advertising inventory properties are deemed by Everflow, in its sole discretion, to not meet the letter or spirit of the standards set forth in this Agreement, Everflow may request that Customer make changes to bring its practices and / or such content and materials into compliance. If Customer fails to make the necessary changes immediately upon request, and without limiting any of the other remedies available to Everflow at law or in equity, Everflow is authorized to remove the content and/or materials, suspend any applicable campaign or Customer's access to the Platform Services, without liability to Customer. Customer agrees and acknowledges that Everflow shall have the right to audit from time to time Customer's use of the Everflow API, Platform Services, and the content and material Customer is promoting, distributing and/or displaying on or through the Platform Services or in connection with the use thereof. Everflow reserves the right to immediately suspend, in whole or in part, Customer's access to the Platform Services and Everflow's provision of the Platform Services in order to prevent imminent harm to Everflow or a third party.
- DATA AND OWNERSHIP
- Treatment of Customer Data. Customer is ultimately responsible for making and keeping current copies of all Customer Data and related information. Everflow will retain Customer Data subject to any time or storage limitations set forth in the Documentation for the Platform Services, and may delete or decline to store Customer Data older than the prescribed age for deletion, or in excess of the disclosed storage limitation. Everflow shall not disclose the Customer Data to any third party except (a) as directed by Customer (including by Customer's selection of an optional third party data integration), (b) if such disclosure is made by Everflow in response to a court order, subpoena or other legal process, and provided that Everflow has given Customer reasonable notice of such court order, subpoena or other legal process, (c) if such disclosure is made to Everflow's service providers in connection with the operation of the Everflow Service, or (d) if such disclosure is in aggregate non-personally identifiable form.
- Data Licenses.
- Customer hereby grants to Everflow a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use Customer Data in connection with the creation and development of analytical and statistical analysis tools related to collected data; provided, however, that Everflow shall not use Customer Data for the purposes of targeting or segment creation except for Customer unless Customer has opted into a data cross-license under clause (b) immediately below.
- If Customer desires to receive enhanced targeting or audience segmentation based on Everflow's analysis of other Everflow customers' data, Customer must grant Everflow a license to utilize Customer Data to provide such offerings on a reciprocal pooled basis to other customers who have grated Everflow the same license.
- Ownership. Everflow agrees that Customer will own all Customer Data. As between Everflow and Customer, the Platform Services and all software, data and technologies embodied in or used to provide the Platform Service, including data and information that is not Customer Data (including Everflow Data), and all intellectual property rights in or relating to any of the foregoing, is owned by Everflow.
- TERM AND TERMINATION
- Duration and Renewal. Your right to use the Platform Services under these Service Terms shall continue for the term set forth in each Order Form. These Service Terms will expire at the end of each campaign set forth in the Order Form.
- Termination. Unless otherwise set forth in an Order Form, each party shall have the right to terminate an Order Form upon thirty (30) days' notice. A party may terminate these Service Terms for a material breach by the other party that remains uncured more than 7 days after receiving written notice of the breach. Your right to use the Platform Services will automatically terminate upon any termination of these Service Terms.
- Survival. The following provisions will survive expiration or termination of these Service Terms: Sections 1, 2, 3.3, 3.4, 5, 6.3, 7 (to the extent of any outstanding payments), 4, and 10 through 14.
- FEES AND PAYMENT
- Fees. In consideration for Everflow providing the Platform Services and any agreed-upon professional services, Customer shall pay to Everflow the corresponding fees set forth in the Order Form.
- Invoices; Payment. Unless otherwise set forth in an Order Form, Everflow shall invoice Customer in arrears at the end of each calendar month for the fees accrued during such calendar month. Each invoice is due and payable thirty (30) days following the invoice date. Overdue payments will accrue interest at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law.
- Taxes. The fees specified in these Service Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, "Taxes"). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than Everflow's U.S. federal and state income taxes. Such Taxes will be itemized in the applicable invoice.
- Obligations. "Confidential Information" means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the Platform Services that should be reasonably understood to be confidential. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Service Terms. The receiving party will promptly return or destroy the other party's Confidential Information upon request.
- Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.
- SERVICE LEVEL AGREEMENT
If Customer's subscription includes service-level commitments, and the Order Form accordingly specifies that Everflow's Service Level Agreement applies, Customer will be entitled to the commitments and remedies set forth in such Service Level Agreement as attached to or referenced in the Order Form. The remedies expressly provided in the Service Level Agreement are Customer's sole and exclusive remedy, and Everflow's entire obligation, with respect to any service-level violation.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE SERVICE TERMS (AND WITHOUT LIMITING REMEDIES TO WHICH CUSTOMER MAY BE ENTITLED UNDER THE SERVICE LEVEL AGREEMENT, IF APPLICABLE), THE PLATFORM SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EVERFLOW DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- By Everflow. Everflow will indemnify, defend and hold harmless Customer against any damages awarded by a court in connection with claims, demands, suits or proceedings made or brought by a third party ("Claims") against Customer to the extent based upon an allegation that the Platform Services, as furnished by Everflow hereunder and used by Customer within the scope of these Service Terms, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF EVERFLOW WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM SERVICES. Everflow shall have no liability under this Section 11.1 to the extent that any Claims are based on any combination of the Platform Services with products, services, methods, content or other elements not furnished by Everflow unless such combination is necessary for the intended use of the Platform Services, or any use of the Platform Services in a manner that violates these Service Terms or the instructions given to Customer by Everflow.
- Mitigation Measures. In the event of any Claim or potential Claim covered by Section 11.1, Everflow may, in its discretion, seek to mitigate the impact of such Claim by modifying the Platform Services to make them non-infringing, and/or by suspending or terminating Customer's use of the Platform Services upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Everflow will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).
- Indemnification by Customer. Customer will indemnify, defend and hold harmless Everflow against any Claims arising from or related to any Customer Data or the use of the Platform Services by Customer, Authorized Users, or Partners in violation of these Service Terms or any applicable Everflow end-user documentation, which indemnified Claims include without limitation Claims resulting from advertising practices or the actions or omissions of affiliate network Partners, and any Claims brought by, or in connection with the actionr or omissions of, Third Party Integration Providers.
- Procedures. Each party's indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party's rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the aggrieved party will, at the indemnifier's expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.
- LIMITATION OF LIABILITY
- Waiver of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THESE SERVICE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Liability Cap. EXCEPT FOR AMOUNTS OWED UNDER SECTION 7, THE TOTAL LIABILITY OF EACH PARTY FOR DAMAGES ARISING FROM OR RELATED TO THESE SERVICE TERMS SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO EVERFLOW UNDER THESE SERVICE TERMS FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
- Exceptions. Nothing in this Section 12 shall limit or waive a party's: (i) liability for any breach of its confidentiality obligations under these Service Terms; (ii) liability for its infringement or misappropriation of any proprietary rights of the other party; or (iii) indemnification obligations under Section 11.
- Identification of Customer. Everflow may identify Customer, by name and (upon Customer's approval) by logo, as a customer of the Platform Services on Everflow's website and other marketing materials.
- Case Study. Provided Customer is satisfied with the Platform Services, Everflow may develop a case study for public dissemination and marketing use by Everflow describing the benefits Customer has derived from the Platform Services. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer's prior written approval, not to be unreasonably withheld.
- Assignment. Neither party may assign these Service Terms without the other party's prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer these Service Terms together with all Order Forms (and subject to any usage limitations therein) upon written notice to the other party: (i) to any entity controlling, controlled by, or under common control with, the transferring party, where "control" means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (ii) to any entity acquiring the transferring party, with which the transferring party is merging or to which the transferring party sells all or substantially all of its assets. Everflow shall have the right to increase amounts charged to Customer in the event of any transfer by Customer that either increases the cost of providing the Platform Services or by virtue of a change in taxes to be paid reduces the amount received by Everflow. Any attempt to assign these Service Terms except as permitted under this Section, will be null and of no effect. Subject to the foregoing, these Service Terms will bind and inure to the benefit of each party's successors and permitted assigns.
- Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
- Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Platform Services, nor any direct product thereof, are: (i) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations.
- Severability. If any part of these Service Terms is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of these Service Terms will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
- Waiver. The waiver of a breach of any provision of these Service Terms will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
- Notices. All notices permitted or required under these Service Terms shall be in writing, will reference these Service Terms, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
- Governing Law. These Service Terms will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under these Service Terms will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
- Revisions to Service Terms. Everflow may change these Service Terms and its policies from time to time. We may inform you of any such changes by posting the revised version to our website at the same URL as the original version. Unless otherwise agreed by the parties, any such changes will take effect for the Platform Services upon the next Order Form executed by the parties if we have posted or otherwise informed you of the revision prior to the deadline for giving non-renewal notice.
- Entire Agreement. Any amendment or modification to these Service Terms must be in writing signed by both parties. These Service Terms constitute the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.
Everflow Service Level Agreement
This Everflow Service Level Agreement ("SLA") pertains to the subscription agreement for Platform Services between Everflow and Customer that incorporates this SLA by reference (the "Agreement"). All capitalized terms not defined herein shall have the meanings given to them in the Agreement. This SLA terminates or expires upon any termination or expiration of the Agreement.
- Service Availability
- "Downtime" means any period during which all Platform Services cease to function and are therefore unavailable for access by Customer, calculated as a percentage of the total time during a calendar month.
- "Excused Downtime" means any Downtime that: (a) occurs during a Scheduled Maintenance Period; (b) occurs during any suspension of Customer's access to the Platform Services as permitted under the Agreement; (c) occurs during any period in which Customer is in breach of the Agreement (including while any payments by Customer are overdue); or (d) results from the actions or omissions of Customer or third parties acting on Customer's behalf or from any cause beyond Everflow's reasonable control.
- "Scheduled Maintenance Period" means any pre-scheduled time period during which Everflow performs maintenance on the Subscription Services. The regularly scheduled time for maintenance is presently 9 p.m. to 12.00 a.m. PST/PDT, and may be used by Everflow without advance notification. Everflow may expand these scheduled times upon one (1) day's advance notice. Everflow may change the regularly scheduled time for maintenance by amending this SLA upon ten (10) business days' written notice delivered either by email or through a notice on the Platform Services.
- "Target Downtime" means Downtime, excluding Excused Downtime, of 0.1% of of the total time in any calendar month.
- In the event that Everflow in its sole discretion determines that any unscheduled maintenance is necessary, Everflow will use commercially reasonable efforts to notify Customer.
- For any calendar month in which the Downtime for the Platform Services exceeds the Target Downtime, Everflow will, if and only if Customer delivers a written credit request within thirty (30) days of the end of the relevant calendar month, issue Customer a service credit calculated as a percentage of the fees due from Customer for such calendar month equal to two (2) times the difference between the Target Downtime and the Downtime percentage. The maximum service credit for any calendar month under this SLA shall not exceed the fees payable for such calendar month.
- This SLA describes your sole remedy, and our entire obligation, if we exceed the Target Downtime. This SLA does not diminish or override the disclaimer of warranties in the Agreement to which this SLA is attached (except as expressly stated therein). No party other than Customer receives any rights under this SLA.
- Technical Support
We will provide commercially reasonable telephone, live online chat, and/or email assistance for general advice and technical support, as well as technical assistance and remediation for operational issues, consistent with the level of support that Everflow generally offers at no additional charge to users of the Platform Services.