Please read these Terms of Service (the “Agreement”) carefully. Your use of the Services (as defined below) and/or your click-acceptance of this Agreement constitute your consent to this Agreement.
This Agreement is between you and Everwise Corporation (“Everwise”, “we” or “us”) concerning your use of (including any access to) the services made available by Everwise through its website currently located at http://www.geteverwise.com or any other Everwise-controlled site that links to this Agreement (together with any materials and services available therein, and successor site(s) thereto, the “Services”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Everwise through the Services, or otherwise made available to you by Everwise. Your use of the Services is governed by this Agreement regardless of how you access the Services, including through the Internet, through Wireless Access Protocol (commonly referred to as “WAP”), through a mobile network or otherwise.
BY USING THE SERVICES, YOU AFFIRM THAT YOU ARE EIGHTEEN YEARS OF AGE OR OLDER; IF YOU ARE NOT EIGHTEEN YEARS OF AGE OR OLDER, YOU MAY NOT USE THE SERVICES.
1. Changes. We may change this Agreement by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Services. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the Services following any changes to this Agreement will constitute your acceptance of such changes. The “LAST UPDATED” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Services (including access to the Services via any third-party links); charge, modify or waive any fees required to use the Services; or offer opportunities to some or all users of the Services.
3. Jurisdictional Issues.The Services are controlled and operated from the United States, and are not intended to subject Everwise to any non-U.S. jurisdiction or law. The Services may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Services is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Services' availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Rules of Conduct. In connection with the Services, you must not:
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Services.
5. Program Rules. By participating in an Everwise mentoring program, peer group or other learning relationship (“Program”), you agree to the following Program Rules:
6. Transactions. We may make available the ability to purchase or otherwise obtain certain products or services through the Services (a “Transaction”). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO USE ANY CREDIT CARD THAT YOU SUBMIT IN CONNECTION WITH A TRANSACTION. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. By making a Transaction, you represent that the applicable Products will be used only in a lawful manner.
You agree to pay all charges incurred by you or on your behalf through the Services, at the prices in effect when such charges are incurred. In addition, you are responsible for any taxes applicable to your Transactions.
7. Registration; User Names and Passwords. You may need to register to use all or part of the Services. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Everwise, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Services account. You are prohibited from having more than one account and are prohibited from selling, trading, or otherwise transferring or sharing your Everwise account to or with any other person.
8. Profiles and Forums. Users of the Services may make available certain materials (each, a “Submission”) through or in connection with the Services, including on profile pages (each, a “Profile”) or on the Services’ interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality (each, a “Forum”). Everwise has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK.
9. License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Services or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Everwise under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Services, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
10. Monitoring. We may (but have no obligation to) monitor, evaluate, alter or remove Submissions before or after they appear on the Services. We may disclose any Submissions and the circumstances surrounding their transmission to anyone for any reason or purpose.
11. Everwise's Proprietary Rights. We and our suppliers own the Services, which are protected by proprietary rights and laws. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Everwise to use the Services, you may view one (1) copy of any portion of the Services to which we provide you access hereunder, solely for your personal, non-commercial use.
Our trade names, trademarks and service marks include EVERWISE and any associated logos. All trade names, trademarks, service marks and logos on the Services not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
12. Third Party Materials; Links. Certain functionalities of the Services may allow for access to materials made available by third parties, including Submissions (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Everwise with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Services at any time. In addition, the availability of any Third Party Materials through the Services does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
13. DISCLAIMER OF WARRANTIES. THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. EVERWISE DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH EVERWISE AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”).
While we try to maintain the timeliness, integrity and security of the Services, we do not guarantee that the Services are or will remain updated, complete, correct or secure, or that access to the Services will be uninterrupted. The Services may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Services. If you become aware of any such alteration, contact us at firstname.lastname@example.org with a description of such alteration and its location on the Services.
14. Limitation of Liability. EVERWISE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. WITHOUT LIMITING THE FOREGOING, EVERWISE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE SERVICES. THE MAXIMUM aggregate LIABILITY OF EVERWISE FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE greater of the TOTAL AMOUNT, IF ANY, PAID BY YOU TO Everwise TO USE THE SERVICES and ten (10) dollars. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH EVERWISE AND THE AFFILIATED ENTITIES.
Applicable law may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.
15. Indemnity. Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless Everwise and the Affiliated Entities from and against all claims, losses, costs and expenses (including attorneys’ fees) arising out of (a) your use of, or activities in connection with, the Services (including all Submissions); and (b) any violation or alleged violation of this Agreement by you.
16. Termination. This Agreement is effective until terminated. Everwise may terminate or suspend your use of the Services at any time and without prior notice, including if Everwise believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Services will immediately cease, and Everwise may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 2-5, 8-16 and 19-21 shall survive any expiration or termination of this Agreement.
17. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the State of New York, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND EVERWISE, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT EVERWISE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”), as amended by this Agreement. The Supplementary Procedures are available online at https://www.adr.org/cs/idcplg?IdcService=GET_FILE&dDocName=ADRSTAGE2009997&RevisionSelectionMethod=LatestReleased. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
18. Filtering. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from GetNetWise (http://www.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Please note that Everwise does not endorse any of the products or services listed on such sites.
19. Information or Complaints. If you have a question or complaint regarding the Services, please send an e-mail to email@example.com. You may also contact us by writing to Everwise Corporation, 1178 Broadway, 4th Floor, New York, NY 10001. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.
20. Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Services infringe your copyright, you (or your agent) may send to Everwise a written notice by mail or e-mail requesting that Everwise remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Everwise a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices should be sent to Colin Schiller: by mail to Colin Schiller, Everwise Corporation, 1178 Broadway, 4th Floor, New York, NY 10001; or by e-mail to firstname.lastname@example.org.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
21. Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; (b) on any of the U.S. government lists of restricted end users.
22. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Everwise. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Everwise relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Everwise relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Services or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Everwise will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.