Application Terms of Use - EverPresent: Digitize. Organize. Share

EverPresent, Inc.
Application Terms of Use
Effective October 10, 2022

EverPresent, Inc. (“EverPresent”, “we”, “us”, “our”) provides a multi-platform software application (the “Application”) for use by clients (“you”, “your”) of EverPresent’s digitization and related services (collectively, the “Services”).

1. Applicability.

These Terms of Use (these “Terms”) constitute a legal agreement between you and EverPresent and govern your use of the Application. By clicking the “Agree” or similar button, downloading or accessing the Application, registering for a User Account (defined below), or using the Application, you represent to EverPresent that you have (a) read, understand and agree to all of the provisions of these Terms, and (b) that you are of legal age to form a binding contract with EverPresent. If you use the Application on behalf of an organization, then you agree to these Terms on behalf of that organization, and you represent to EverPresent that you have the authority to do so. If you do not agree to these Terms, then you must not use the Application, and you must delete any copies of the Application from your computer or device.

1. 1. Use of the Application is also subject to EverPresent’s privacy policy (the “Privacy Policy”), and use of the Services, including Services you manage using the Application, is governed by EverPresent’s client agreement (the “Client Agreement”).
2. Changes to these Terms. EverPresent reserves the right to revise these Terms at any time by posting the revised Terms on our website and making the revised Terms available through the Application. The revised Terms will be effective immediately upon posting, with an updated effective date. By using the Application after any such revised Terms have been posted, you signify your agreement to the revised Terms.
3. License to the Application; Updates.
  1. Subject to your continued compliance at all times with these Terms, EverPresent grants to you a limited, nonexclusive, worldwide, royalty-free, non-sublicensable, non-transferable license to access or download and use the Application (and through the Application, to access applicable Services) for your personal or internal business purposes in connection with your use of the Services.
  2. The Application and its components, features and functionality are owned by EverPresent its licensors and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Except for the limited license granted under these Terms, you do not acquire any rights, title or interest in or to the Application or any of its components, or any intellectual property or other proprietary rights belonging to EverPresent or its licensors.
  3. We may in our sole discretion at any time develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including any related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Application. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Application. You agree to use only the most current version of the Application made available by EverPresent, and you acknowledge that the Application may not operate as intended should you fail to do so. You are responsible for monitoring the appropriate third party application marketplace (each, an “App Store”) for available updates, as enabled by your computer or device.
4. Restrictions.
  1. You agree not to use the Application or any other technology or method in any manner that could disable, overburden, damage, modify or impair any portion of the Application or the underlying technology platform or our website, or monitor, control or interfere with any other person’s use of the Application or the Services, or use any robot, spider or other automated means to access, monitor, modify or copy any portion of the Application or the underlying technology platform or our website, or introduce any virus, worm, trojan horse, or other malware or harmful technology to the Application or the underlying technology platform or our website.
  2. You agree not to modify, copy, distribute, sell, sublicense or lease the Application or use the Application for the benefit of anyone else (other than your organization for its internal purposes, if you are agreeing to these Terms on behalf of that organization), whether as a service provider to others or on any other basis. To the fullest extent permitted by applicable law, you agree not to reverse-engineer or otherwise attempt to determine the source code of the Application. Without limiting the foregoing, you agree not to circumvent, hack, disable, vulnerability-test or otherwise interfere with any security-related features of the Application or features that enforce limitations on use of the Application or the Services.
  3. You agree not to use the Application to develop, use or distribute any application or service that competes with EverPresent.
5. Subscription; User Account.
  1. The Application is provided on a subscription basis, and we may offer different levels of paid subscriptions with different features and functionality. Your payment may be processed by third party payment processors engaged by us or the applicable App Store, and you hereby authorize automatic, recurring billing and agree to pay the applicable charges made to your account with the applicable App Store or with us. The Application may be made available for a free trial period, as indicated wherever you access or download the Application. The features and functionality of the Application during any free trial period may be less or different than the features and functionality of the Application during a paid subscription. Any subscription for a free trial period will automatically renew as a paid subscription at the end of the free trial period.
  2. You may cancel your subscription at any time through the applicable App Store, the Application itself, or by contacting us, depending on how you first established your subscription. Paid subscriptions automatically renew at the then-current subscription rate unless canceled prior to the end of the then-current subscription term. Subscription fees are non-refundable. When you cancel your subscription, you will continue to be able to use the Application through the end of the then-current subscription period, unless otherwise terminated by us under these Terms. When your subscription ends, your access (and any access that you may have shared with others) to digital materials stored with us will also end.
  3. To use the Application, you may be required to register for an account with EverPresent or connect the Application to an existing account you have with us (a “User Account”) using the functionality available in the Application. You agree to maintain the confidentiality of your User Account login credentials. You agree to notify EverPresent immediately upon becoming aware of or suspecting any unauthorized use of your User Account and not to allow others to use your User Account. EverPresent will not be responsible for any loss or damage arising from unauthorized access to the Application or the Services through your User Account.
  4. You are responsible for all information you provide to EverPresent through the Application. You represent to EverPresent that all information provided by you is accurate and that you have the right to provide such information.
6. Third Parties. The Application may provide links or access to websites, technologies and applications created, owned or hosted by third parties, some of which may require that you agree to their terms of service, register with them or provide information directly in order to obtain information or services. For example, the Application may enable you to post photos or other content (via a public link) on your social media accounts. EverPresent does not control the security, performance or terms of service of any third parties and shall have no liability for performance (including delays in performance or failure to perform) or security of, or information provided to or by, any third party. Some third-party services may not be available in all areas.
7. Termination. You may terminate your subscription at any time as described above. EverPresent may terminate or suspend your subscription at any time and without liability to you if you violate, or if EverPresent reasonably believes that you are violating, these Terms or the Client Agreement (if applicable). Upon any termination of your subscription, all rights granted to you under these Terms shall automatically and immediately terminate, and you agree to immediately discontinue your use of the Application and promptly delete it from your computer or device. The provisions of these Terms governing payment obligations, EverPresent’s intellectual property rights, indemnification, disclaimers, limitation of liability, and general provisions shall survive any such termination.
8. Indemnification. You agree to indemnify, defend and hold harmless EverPresent and its directors, officers, employees and agents from and against all third-party claims, demands, and liabilities, including costs and attorneys’ fees, to which EverPresent may be subjected by reason of any claim based upon or arising out of (a) your violation of these Terms, (b) your violation or suspected violation of any applicable law or regulation, (c) your violation of the rights (including intellectual property rights) of, or your agreement with, any third party, and (d) your use (or any other person’s use through your User Account) of the Application.
9. Disclaimer of Warranties; Limitation of Liability.

The Application is provided on an “as is”, “as available” basis, and your use of the Application is at your sole risk. EverPresent makes no representation, warranty, covenant, or guarantee, whether express or implied, statutory or otherwise, and to the fullest extent permitted by applicable law EverPresent expressly disclaims any warranties of merchantability, accuracy, completeness, availability, fitness for a particular purpose, non-infringement or arising from a course of dealing, usage, or trade practice.

In connection with these Terms and the offering, operation and use of the Application, in no event will EverPresent or its directors, officers, employees or agents be liable to you or to any third party for (i) any indirect, incidental, consequential, punitive, special, or exemplary damages, (ii) lost profits, lost or damaged data, or loss of use, or (iii) any direct damages in excess of any amounts paid or payable by you to EverPresent for your use of the Application, or one thousand us dollars ($1,000), whichever is less. These limitations apply to the fullest extent permitted by applicable law, regardless of the theory of liability and regardless of whether EverPresent has been informed in advance of the possibility of such damages. These limitations shall not apply to damages caused by gross negligence or willful misconduct by EverPresent.

General Provisions.
1. Governing Law, Venue, Waiver. These Terms shall be construed and enforced pursuant to the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. Any action, litigation or proceeding of any kind arising from or relating to these Terms or the Application shall be brought in the appropriate state or federal courts in Norfolk County, Massachusetts, and you and EverPresent each irrevocably and unconditionally submit to the exclusive jurisdiction of such courts. You and EverPresent each waive any right to a trial by jury in respect of any legal action arising out of or relating to these Terms or the Application.
2. Statistical Information. Subject to our commitment to data privacy as described in the Privacy Policy, we may analyze data and information derived by or through our provision of the Application and your access to or use of the Application to provide, evaluate and improve the Application and the Services. In addition, we may de-identify and aggregate such data and information with other, similarly de-identified data and information, (collectively, “Resultant Data”), and, provided that your identity and no personal, confidential or proprietary information belonging to you can be reverse engineered or otherwise determined from the inspection, analysis or processing of Resultant Data, use Resultant Data without restriction.
3. We welcome your suggestions, ideas, survey responses and other feedback (collectively, “Feedback”) on the Application and the Services. We must be free, however, to use Feedback without restriction. Accordingly, you agree that any Feedback you choose to provide will become the sole property of EverPresent, and EverPresent will be entitled to the unrestricted use of such Feedback for any purpose, commercial or otherwise, without attribution or compensation to you. You agree not to submit any Feedback that violates any right of any third party, breaches any agreement between you and any third party, or that you do not otherwise have the right to provide.
4. Entire Agreement. These Terms constitute the sole and entire agreement between you and EverPresent with respect to the subject matter of these Terms, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
5. Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
6. Waiver. No failure to exercise, or delay in exercising, any right or remedy arising from these Terms shall operate or be construed as a waiver of that right or remedy, No waiver of any provision of these Terms in one instance shall be deemed a waiver of that provision on any other instance or of any other provision.
7. Force Majeure. EverPresent will not be liable for any delay or failure to perform attributable to circumstances beyond EverPresent’s reasonable control, including, without limitation, war, embargo, sanction, pandemic, civil disturbance, terrorism, government act, acts of nature, fire, flood, or outage or failure of telecommunications, network infrastructure or third party service providers.
8. Notices. All notices, requests, consents, claims, demands, waivers and other communications under these Terms will be effective only upon delivery. You agree that EverPresent may provide notice to you through the Application or, if you have provided EverPresent with your email address, then to your email address. Notice to EverPresent must be sent to [email protected].
9. Contact. If you have questions or concerns about the Application or these Terms, you may contact EverPresent at [email protected].