Terms and Conditions

THESE SERVICE TERMS AND CONDITIONS ("AGREEMENT”) CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND EVERAFTER AI LTD. (“EVERAFTER”). PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCESSING AND/OR USING EVERAFTER’S SERVICES

BY ACCEPTING THIS AGREEMENT AND/OR BY ACCESSING AND/OR USING EVERAFTER’S SERVICES, YOU REPRESENT TO US THAT YOU ARE AT LEAST 18 YEARS OLD, AND THAT YOU HAVE THE LEGAL RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO PERFORM YOUR OBLIGATIONS UNDER THIS AGREEMENT. IF YOU ARE UNDER 18, PLEASE DO NOT ACCESS AND/OR USE ANY PART OF EVERAFTER’S SERVICES AND DO NOT ACCEPT THIS AGREEMENT.

IF YOU ARE AN INDIVIDUAL USER WHO IS ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU HEREBY REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH RIGHT, AUTHORITY AND/OR CAPACITY, THEN YOU MUST NOT ACCESS NOR USE ANY PART OF EVERAFTER’S SERVICES AND YOU MUST NOT ACCEPT THIS AGREEMENT.

IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT NOR ACCESS OR USE ANY PART OF EVER AFTER’S SERVICES. YOU ARE RESPONSIBLE FOR ALL OF THE ACTS AND OMISSIONS ASSOCIATED WITH USE OF EVERAFTER’S SERVICES BY YOU OR BY ANYONE ON YOUR BEHALF.

1. DEFINITIONS

This Agreement contains a number of capitalized terms, some of which are defined in Section‎ ‎1 (Definitions), and some of which are defined elsewhere in this Agreement.

1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity, or the right to appoint more than 50% of such entity’s directors or members of a similar body.

1.2. “Customer Data” means any information, content, materials, names, logos, reports, and data provided or made available by Customer and/or the Managed Customer, or automatically collected by EverAfter in connection with the use of the Services by Customer and/or the Managed Customer, pertaining to: (i) Customer; (ii) Customer's employees, service providers, consultants, agents and/or advisors; and/or (iii) the Managed Customer, its employees, service providers, consultants, agents and/or advisors.

1.3. “Customer Interface” means a personalized hub of designated pages, content, and functionality created by Customer or on its behalf in connection with the Workspace for the purpose of managing Customer's relationship with the Managed Customer through the Services.

1.4. “Intellectual Property Rights” means any and all rights, titles, and interests in and to inventions, discoveries, works of authorship, software, technology, know-how, designs, ideas, algorithms, databases, records, and other intellectual property, in whatever form and whether or not protectable or registrable, including without limitation patents, copyrights, trade secret rights, know-how, design rights, trademarks, and similar branding rights, as well as all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of, and the goodwill associated with, the foregoing rights.

1.5. "Law" any federal, state, foreign, regional, or local statute, regulation, ordinance, or rule of any jurisdiction, including without limitation, privacy laws and regulations.

1.6. “Managed Customer” means Customer's client or customer for which Customer has opened a Customer Interface.

1.7. "Order Form" means an online registration page or an order form.

1.8. “Paid Subscribers” means customers that have signed up to use the Services through one of the paid plans as described in the Everafter website.

1.9. “Free Plan Customers” means any customer who signed up to use the Services on a free plan on the Everafter website.  

1.10. “Platform” means EverAfter’s Software-as-a-Service customer management platform, including any updates to the foregoing, as may be provided to Customer by EverAfter from time to time.

1.11. “Services” means, collectively, the Platform, and any other related services provided to Customer as set forth in an Order Form.

1.12. “Workspace” means Customer's account with EverAfter on the Platform, within which all activities connected to the Services provided to Customer are carried out.

2. WORKSPACE

In order to use the Services, Customer must create a Workspace on the Platform. Customer agrees not to create a Workspace for any third party, or to use or access the Workspace of another EverAfter customer without obtaining its express prior written approval. Customer hereby represents and warrants that all information submitted during the Workspace registration process (“Workspace Information”) is, and will remain, current, complete, and accurate, and Customer shall update the Workspace Information to the extent necessary. As between Customer and EverAfter, Customer alone shall be solely responsible and liable for (i) maintaining the confidentiality and security of the Workspace Information (including all credentials); and (ii) all activities that occur under or in the Workspace. Customer shall immediately notify EverAfter in writing (but in any event no later than twenty-four (24) hours) after becoming aware of any unauthorized access to, or use of, the Workspace.

3. SERVICES AND SUBSCRIPTION

3.1. Description of Services. The Services are made available in order to allow Customer to manage Customer engagements, transactions, projects, and relationships with Managed Customers by creating customized Customer Interfaces, and to allow Managed Customers to communicate and interact with Customer via the Customer Interface.  

3.2. Subscription. Subject to Customer's compliance with the terms of this Agreement,  EverAfter hereby grants Customer, during the Term (defined below), a subscription-based, limited, non-exclusive, non-sublicensable, non-transferable license to (i) access and use the Services solely for Customer's internal business purposes; and (ii) allow authorized users of Managed Customers to access and use the applicable Customer Interface for the purpose of communicating with Customer, managing their business relationship with Customer, and performing and managing transactions with Customer (the foregoing license, collectively, the “Subscription”).

3.3. Subscription Plan. Additional terms and conditions of the Subscription, including any license metrics (“Subscription Plan”) and applicable Fees (defined below), shall be set out in the Order Form, which shall be subject to the terms and conditions of this Agreement.

3.4. Support. EverAfter shall make commercially reasonable efforts to correct any errors in the Platform and/or the Services that may prevent Customer from receiving the full and complete scope of the Services.  If the core functionalities of the Services are materially different from the agreed requirements specified in the Order Form, and EverAfter is not able to correct such differences with comparable core functionalities within a reasonable time (as determined by the mutual consent of the parties), Customer may terminate the Agreement on written notice to EverAfter, with immediate effect, and receive a pro-rata refund of the unused portion of any prepaid Fees.  

4. USAGE RESTRICTIONS

4.1. Restrictions on Use of Services. Customer shall not (and shall ensure that each Managed Customer does not) authorize or assist any other third party to: (a) circumvent, disable or otherwise interfere with security-related features of the Services or features that enforce limitations on use of the Services; (b) disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Services, or otherwise discern the source code of the Services, except and solely to the extent applicable Law expressly authorizes any of the foregoing, notwithstanding contractual restrictions to the contrary; (c) use the Services on a service bureau or time sharing basis or provide the Services to third parties, except as otherwise permitted herein; (d) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Services or any of Customer's rights therein to any third party; (e) violate or abuse password protections governing access to the Services; (f) interfere or attempt to interfere with the integrity or proper working of the Services; (g) use the Services in any unlawful manner or in breach of this Agreement; (g) use EverAfter’s name, logo or trademarks without EverAfter’s prior written consent; (h) use the Services in order to conduct any comparisons, competitive analysis, penetration testing, vulnerability assessment, or other benchmarking activities, either alone or in connection with any other service or hardware without the prior written consent of EverAfter; (i) use the Services in a manner that violates applicable Laws; and/or (j) use the Services other than as permitted herein (the foregoing restrictions, collectively, the "Usage Restrictions").

4.2. Right to Suspend Use. EverAfter may suspend access and/or use of the Services by Customer or the Managed Customer in the event that EverAfter determines, in its reasonable opinion, that the Usage Restrictions have been breached.  

4.3. For the purposes of this Agreement for Free Plan customers, termination of this Agreement by EverAfter under this section shall be deemed as a Termination for Cause under Section 13 (Term and Termination).

5. FEES AND PAYMENTS

5.1 Fees. Customer agrees to pay EverAfter the fees and other charges set forth in the Order Form (the "Fees").

5.2 Payment Terms. Unless expressly stated otherwise in the Order Form: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees shall be paid in advance at the commencement of each billing cycle; (c) all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) EverAfter shall be entitled to issue invoices (and any associated reporting) and billing notices via email to the applicable Customer contact email address specified in the Order Form.

6. CUSTOMER ENGAGEMENTS

Customer shall be solely responsible and liable for any engagement, interaction, and/or transaction between Customer and the Managed Customer, whether or not Customer uses the Services in connection with such engagement, interaction, and/or transaction. Under no circumstances will EverAfter be responsible or liable for or in connection with any engagement, interaction, and/or transaction between Customer and the Managed Customer, including without limitation for any errors, delays, or omissions with respect to information pertaining to any engagement, interaction and/or transaction between Customer and the Managed Customer, or information exchanged between Customer and the Managed Customer, or for any loss or damage of any kind incurred as a result of the foregoing.

7. FEATURES

EverAfter will not remove the core functionality of the Services without notice Paid subscribers, but reserves the right to modify and/or add any tool, functionality, or feature of/to the Services (collectively, “Features”) at any time, for any reason whatsoever. Moreover, if EverAfter determines (in its sole discretion) that Customer or the Managed Customer is or may be in breach of any provision of this Agreement, EverAfter reserves the right to block Customer's (or the Managed Customer's) access or use of certain Features.

8. PROPRIETARY RIGHTS

8.1. EverAfter Proprietary Rights. EverAfter is, and shall be, the sole and exclusive owner of all right, title, and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Platform, (b) the Services (c) Feedback (defined below); and (d) any improvements, derivative works, enhancements, and/or modifications of/to any of the foregoing, as well as any other Intellectual Property conceived, authored, or otherwise developed pursuant to this Agreement, in each case regardless of inventorship or authorship. To the extent any of the foregoing Intellectual Property Rights do not automatically vest in EverAfter, Customer hereby irrevocably assigns (and shall assign) same to EverAfter (and its designees, successors, and assigns), and undertakes to do all things reasonably requested by EverAfter (including without limitation executing, filing, and delivering instruments of assignment and recordation), at EverAfter's expense, to perfect such ownership rights. Customer shall not delete, remove, obscure, or in any manner alter the copyright, trademark, and other proprietary rights notices displayed on or in the Platform or Services.

8.2. Feedback. If Customer contacts EverAfter with any suggestions, comments, or other feedback regarding the Services, the Platform or any other products, services, or technology of EverAfter, including but not limited to customizations, features, improvements, modifications, corrections, enhancements, derivatives or extensions thereof (collectively, “Feedback”), such Feedback shall be deemed to be the sole property of EverAfter and Customer hereby irrevocably transfers and assigns to EverAfter all Intellectual Property Rights in and to such Feedback and waives any and all moral rights that Customer may have in respect thereto.

8.3. Customer Data. As between EverAfter and Customer, Customer shall own all its Customer Data, and EverAfter shall acquire no right, title, or interest therein, except for the rights granted in this Agreement.

8.3.1. License to Customer Data. While using the Services, certain Customer Data will be made available to EverAfter. Customer hereby grants to EverAfter and its Affiliates a worldwide, non-exclusive, royalty-free, paid-up, sublicensable (to EverAfter's data subprocessors, hosting providers, as well as to third party service providers engaged by EverAfter in the provision of the Services), irrevocable right and license to copy, process, create derivative works of, modify, adapt, and otherwise use Customer Data (in any media, now known or hereafter developed): (A) during the Term, for the purpose of performing its obligations under this Agreement; and/or (B) on a perpetual basis, and provided the Customer Data is Anonymized, for the purpose of generally enhancing the Services (such as developing new features and functionalities). “Anonymized” means not enabling identification of an individual user, such as aggregated information about the use of the Services.

8.3.2. Storage. EverAfter may store Customer Data on its servers or with third party providers of hosting and storage services. In providing the Services, EverAfter may use any provider of hosting and storage services as EverAfter may choose, and EverAfter reserves the right to change at any time the hosting and storage solutions used by it for the provision of the Services.

8.3.3. Responsibility for Customer Data. Customer is solely responsible for the legality, accuracy and quality of Customer Data, such as for ensuring that Customer’s collection, processing, storage and transmission of Customer Data is compliant with all applicable Laws, as well as any and all privacy policies, agreements or other obligations Customer may have or enter into with the Managed Customer. Customer represents and warrants that no processing of Customer Data under this Agreement (whether by EverAfter, its Affiliates, or if applicable its hosting and storage providers) will violate any Law, proprietary right, or privacy right.

EverAfter will be responsible for backing up the data of the Customer Interface, layout, structure, and data that was added using the Platform.

9. PRIVACY; USE OF ANONYMOUS INFORMATION

9.1. Privacy Commitment. Customer hereby warrants, represents, and, to the extent relevant, covenant, that Customer has and will: (i) provide(d) all appropriate notices; (ii) obtain(ed) all required informed consents and/or have any and all ongoing legal bases; and (iii) complied/comply at all times with any and all applicable privacy and data protection Laws (including, without limitation, the EU General Data Protection Regulation (“GDPR”), for allowing EverAfter to use and process personal data in accordance with this Agreement (including, without limitation, the provision of such personal data to EverAfter (or access thereto) and the transfer of such personal data by EverAfter to its Affiliates, subsidiaries, and subcontractors, including transfers outside of the European Economic Area), for the provision of the Services and the performance of this Agreement.

9.2. Data Processing Agreement (“DPA”). To the extent that Customer needs a data processing agreement, Customer shall download EverAfter’s Data Processing Agreement (“DPA”) and return it signed to EverAfter at: support@everafter.ai.

9.3. Third-Party Service Providers. In order to offer certain Features or services within the Services, EverAfter engages with certain third parties (“Third Party Providers”) that provide EverAfter with hosting and other services that support and enable the Services. EverAfter will transfer the Workspace Information to such Third Party Service Providers and such Third Party Providers shall store the Workspace Information on their servers in accordance with their security and privacy practices in order to provide the Services.

9.4. Use Customer name and logo. During the Term: (a) EverAfter may use Customer's name and logo on EverAfter's website and in its promotional materials to state that Customer is a customer of EverAfter; and (b) Customer shall cooperate with EverAfter in the creation and promotion of case study(ies) and/or executive testimonial(s) to be used in EverAfter's external communications, such as via its website. Customer may revoke any of the above acknowledgments, by contacting: support@everafter.ai.

10. DISCLAIMERS

THE SERVICES AND ANY RESULTS, OUTPUTS, OR REPORTS OBTAINED THROUGH THE USE OF THE SERVICES (“REPORTS”) ARE PROVIDED AND MADE AVAILABLE TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, REGARDING LATENT DEFECTS, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY EVERAFTER, ITS LICENSORS AND SUPPLIERS.

IN ADDITION, NEITHER EVERAFTER NOR ITS AFFILIATES, LICENSORS, OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION:

a. REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE SERVICES AND REPORTS; OR

b. THAT CUSTOMER'S OR THE MANAGED CUSTOMER'S USE OF OR RELIANCE UPON, THE SERVICES AND REPORTS WILL MEET CUSTOMER'S OR THE MANAGED CUSTOMER'S REQUIREMENTS OR EXPECTATIONS. THE AVAILABILITY AND FUNCTIONALITY OF THE SERVICES DEPEND ON VARIOUS FACTORS AND ELEMENTS, INCLUDING SOFTWARE, HARDWARE, AND COMMUNICATION NETWORKS, WHICH ARE PARTIALLY PROVIDED BY THIRD PARTIES, INCLUDING THIRD PARTY HOSTING AND STORAGE SERVICES AND THIRD PARTY SERVICES USED TO PROVIDE CERTAIN CONTENT. EVERAFTER DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE HOSTING AND STORAGE SERVICES AND THIRD PARTY SERVICES USED TO FACILITATE THE SERVICES) WILL OPERATE WITHOUT DISRUPTION, LIMITATIONS, DELAYS, ERRORS, OR INTERRUPTIONS, OR THAT THEY WILL BE ACCESSIBLE, OR AVAILABLE AT ALL TIMES, OR IMMUNE FROM UNAUTHORIZED ACCESS.

11. INDEMNIFICATION

For Paid Subscribers

11.1 Indemnification by EverAfter. In the event that, during the Term and the six (6) month period thereafter, a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer's authorized access and use of the Services in accordance with this Agreement infringes such third party's copyright or patent (an "Infringement Claim"), EverAfter shall:

11.1.1. At its own expense, defend Customer against the Infringement Claim; and

11.1.2. Indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer by the court (or otherwise agreed in settlement) under the Infringement Claim.

EverAfter will have no obligation or liability under this Section (Indemnification by EverAfter) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Services not made by EverAfter; (ii) the combination of the Services with any third party product or service; (iii) any Customer instructions or specifications; and/or (iv) any Customer breach under this Agreement.

Should the Services (in whole or in part) become, or in EverAfter's opinion be likely to become, the subject of an Infringement Claim or an injunction prohibiting Customer's use of the Services, then Customer permits EverAfter, at EverAfter's option and expense, to either: (x) obtain for Customer the right to continue using the Services (or part thereof, as applicable); or (y) replace or modify the Services (or part thereof, as applicable) so that their use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in EverAfter's opinion, commercially feasible, EverAfter may terminate this Agreement upon written notice to Customer, in which case Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription-related Fees hereunder based remaining period of the Subscription.

11.2 Indemnification by Customer. If EverAfter or its Affiliates (or their respective directors, officers, or employees) (collectively, "EverAfter Indemnitees") incur or suffer any loss or liability whatsoever (including but not limited to a fine, penalty, damages award, legal costs, and expenses such as attorney's fees, etc.) under or in connection with any demand, claim, suit, or proceeding made or brought (whether by an individual, organization, or governmental agency) against an EverAfter Indemnitee (each, a "Misuse Claim"), and such Misuse Claim arises directly or indirectly from (i) the fraudulent, illegal, or otherwise prohibited use of the Platform and/or the Services by Customer or by the Managed Customer; (ii) Customer's interaction with Managed Customers; (iii) Customer Data; or (iv) any breach applicable Law by Customer and/or the Managed Customer, Customer agrees to:  

11.2.1. At its own expense, defend EverAfter Indemnitees against the Misuse Claim; and

11.2.2. Indemnify and hold harmless EverAfter Indemnitees for such loss and liability, as well as for any amount finally awarded against or imposed upon EverAfter Indemnitees by the court (or otherwise agreed in settlement) under the Misuse Claim.

11.3. Indemnity Procedure. As a condition to indemnification under this Section (Indemnification), the indemnified Party agrees: (A) to provide the indemnifying Party with prompt written notice of the Infringement Claim or Misuse Claim, as applicable (the "Claim"); (B) to cede to the indemnifying Party sole control of the defense and settlement of the Claim (except that any settlement shall require the indemnified Party's prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide the indemnifying Party with all information and assistance reasonably requested by it; and (D) not to admit any liability under (or otherwise compromise the defense of) the Claim. The indemnified Party may participate in the defense of the Claim at its own cost and expense.

For Free Plan Customers

11.4. Customer shall defend, hold harmless, and indemnify Everafter and its Affiliates, officers, directors, employees, and agents from and against any direct and indirect damages, obligations, losses, liabilities, costs, and expenses, including reasonable attorney's fees, arising out of or in relation to: (i) the fraudulent, illegal, or otherwise prohibited use of the Platform and/or the Services by Customer and/or by Customer’s Managed Customer; (ii) Customer interaction with Managed Customers;(iii) Customer’s Data; or (iv) any material breach of any provisions of this Agreement or any applicable law by Customer and/or by Customer’s Managed Customer.            

12. LIMITATION OF LIABILITY

12.1. EXCEPT FOR LIABILITIES ARISING FROM INDEMNIFICATION OBLIGATIONS UNDER SECTION ‎11 (INDEMNIFICATION), CUSTOMER'S BREACH OF THE SUBSCRIPTION (INCLUDING WITHOUT LIMITATION A BREACH UNDER SECTION ‎‎‎4 (USAGE RESTRICTIONS)), AND/OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,  IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.

12.2. THE COMBINED AGGREGATE LIABILITY OF EVERAFTER AND ITS AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT AND/OR THE SERVICES SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY  CUSTOMER TO EVERAFTER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.

12.3. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY IN THIS SECTION (LIMITATION OF LIABILITY) THE PROVISIONS OF SECTIONS ‎12.1 AND ‎12.2 ABOVE SHALL NOT APPLY TO A BREACH BY EVERAFTER OF ITS OBLIGATIONS UNDER SECTION ‎15 (CONFIDENTIALITY), AND SECTION ‎12.2 ABOVE SHALL NOT APPLY TO EVERAFTER'S NON-COMPLIANCE WITH APPLICABLE LAWS (INCLUDING PRIVACY LAWS) TOWARD CUSTOMER HEREUNDER, PROVIDED THAT THE COMBINED AGGREGATE LIABILITY OF EVERAFTER AND ITS AFFILIATES UNDER, OR IN CONNECTION WITH, THIS AGREEMENT AND/OR THE SERVICES FOR ANY SUCH BREACH OR NONCOMPLIANCE SHALL NOT EXCEED THREE (3) TIMES THE AMOUNT OF FEES PAID BY CUSTOMER TO EVERAFTER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.

12.4. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, OR OTHERWISE.

13. TERM AND TERMINATION

For Paid Subscribers

13.1. Term. The term of this Agreement and the Subscription shall each remain in effect for the period specified in the applicable Subscription Plan as stated in the Order Form unless earlier terminated in accordance with this Section (Term and Termination) or Section ‎3.4 (Support) above (“Term”).

13.2. Termination for Cause. Either Party may terminate this Agreement if the other Party: (i) fails to cure any material breach hereof within thirty (30) days after written notice specifying the breach; or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefits of creditors.

13.3. Refunds.

13.3.1. EverAfter will refund Customer any prepaid fees covering the remainder of the Subscription Terms as of the effective date of termination if this Agreement is terminated by Customer in accordance with Section ‎13.2 (Termination for Cause) for EverAfter’s uncured material breach.  If this Agreement is terminated by EverAfter under Section ‎13.2 for Customer's uncured material breach, Customer will be required to pay EverAfter any unpaid fees covering the remainder of the Term.

13.3.2. Except for Customer's termination rights under Sections ‎13.2 (Termination for Cause) or Section ‎3.4 (Support) above, if Customer elects to terminate the Subscription or cancel Customer's account prior to the end of the Term specified in the Order Form, no refunds will be provided to Customer.

13.4. Other Consequences of Termination. Upon termination and/or expiration of this Agreement, EverAfter will provide Customer assistance, as shall be reasonably required by Customer, to migrate any and all of Customer materials and data contained in the Platform and the Services to any other service provider selected by Customer, at Customer's sole expense (“Migration”). Following completion of the Migration: (a) the Workspace will be closed; (b) Customer shall immediately cease all access to and use of the Services; and (c) the Subscription shall terminate. Termination of this Agreement shall not affect any right or liability accrued by either party as of the effective date of termination. Sections ‎‎1 (Definitions), ‎‎4 (Usage Restrictions), ‎‎6 (Customer Engagements),‎ ‎‎8 (Proprietary Rights), ‎‎9 (Privacy),‎ ‎10 (Disclaimers),‎ ‎11 (Indemnification), ‎12 (Limitation of Liability), ‎14 (Governing Law and Jurisdiction), ‎15 (Confidentiality)  and‎ ‎16 (Miscellaneous) shall survive termination.

For Free Plan Customers

13.5. Termination For Convenience By EverAfter. Everafter may terminate this Agreement for any reason.

13.6. Consequences of Termination. Upon termination and/or expiration of this Agreement: (a) the Workspace will be closed; (b) Customers shall immediately cease all access to and use of the Services; and (c) Customer’s Subscription shall terminate. Termination of this Agreement shall not affect any right or liability accrued by either party as of the effective date of termination. This Section‎ 13.6  (Consequences of Termination), Sections ‎‎1 (Definitions), ‎‎4 (Usage Restrictions), ‎‎6 (Customer Engagements),‎ ‎‎8 (Proprietary Rights), ‎‎9 (Privacy),‎ ‎10 (Disclaimers),‎ ‎11 (Indemnification), ‎12 (Limitation of Liability), ‎14 (Governing Law and Jurisdiction), ‎15 (Confidentiality)  and‎ ‎16 (Miscellaneous) shall survive termination.

14. GOVERNING LAW AND JURISDICTION

This Agreement (including without limitation its validity and formation) shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any conflicts of laws, rules, or principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to this Agreement and are hereby disclaimed. All disputes arising out of or in connection with this Agreement will be finally settled solely and exclusively by a court of competent jurisdiction in the State of Delaware, USA. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against EverAfter shall only be enforceable against EverAfter, and not any other entity or EverAfter's officers, directors, representatives, employees, or agents.

15. CONFIDENTIALITY

15.1. General. Each Party (for purposes of this section only, the “Recipient”) may have access to certain non-public or proprietary information and materials of the other Party (for purposes of this section only, the “Discloser”), regardless of form, which a reasonable person would understand to be confidential given the nature of the information and/or the circumstances of disclosure ("Confidential Information"). The terms of this Agreement are deemed the confidential information of both parties, and all data and information related to Customer, and the Managed Customer, including Customer Data, is deemed confidential information of Customer under this Agreement.

15.2. Exclusions. Confidential Information shall not include any information that: (a) is lawfully known by the Recipient at the time of disclosure, on a non-confidential basis; (b) is or becomes, through no fault of the Recipient, available to the general public; (c) is independently developed by the Recipient without use or reference to Confidential Information; or (d) is rightfully disclosed to Recipient on a non-confidential basis by a third party.

15.3. Safeguarding. Recipient agrees to protect the Confidential Information with the degree of care taken by the Recipient to safeguard its own confidential information, but in any case no less than a reasonable degree of care, and keep it confidential and not disclose, disseminate, allow access to or use any Confidential Information except as required for the provision or receipt (as applicable) of the Services.

15.4. Non-Disclosure. Recipient shall not disclose or make available any Confidential Information to any person other than to its Representatives (defined below) who have a strict need to know the Confidential Information for the purpose of Recipient performing its obligations under this Agreement, and who are bound to the Recipient by an agreement of confidentiality that contains substantially the same confidentiality obligations contained in this Agreement (or by comparable fiduciary or professional duties of confidentiality). Recipient shall remain primarily responsible and liable for its Representatives' acts and omissions in respect of the Confidential Information, as fully as if they were the acts and omissions of Recipient itself. "Representatives" means the Recipient's and/or its Affiliates' directors, officers, employees, professional advisors (including, without limitation, attorneys, financiers, and accountants), contractors, and agents.

15.5. Compelled Disclosure. Recipient may disclose Confidential Information to the minimum extent required by a Legal Requirement; provided, however, that before Recipient does so disclose it shall, to the extent legally permitted, use reasonable endeavors to give the Discloser as much notice of such disclosure as possible, and reasonably assist Discloser in seeking a protective order or other appropriate remedy. "Legal Requirement" means (a) an order of any court of competent jurisdiction, any regulatory, judicial, governmental, or similar body, or any taxation authority of competent jurisdiction, (b) the rules of any listing authority or stock exchange on which its shares or those of any of its Affiliates are listed or traded, and/or (c) the laws or regulations of any country to which its affairs or those of any of its Affiliates are subject.

15.6. Return/Destruction of Confidential Information.  Promptly following a written request by Discloser at any time (including within a reasonable time following termination of this Agreement), Recipient shall, as reasonably directed, return, destroy, and/or permanently delete all Confidential Information in its possession or control, and shall thereafter, upon written request, have one of its officers certify in a signed writing compliance with the foregoing. Notwithstanding the foregoing, the Recipient may retain an archival copy of Confidential Information solely to the extent that: (a) such archival copy is contained in electronic files as part of the Recipient’s regular data backup or archiving procedures, and/or (b) such retention is required by any Legal Requirement; and in each of the foregoing cases under paragraphs (a) and (b), provided further that the Recipient shall refrain from accessing or using such Confidential Information, and shall treat such Confidential Information at all times in accordance with the provisions of this Agreement and shall refrain from any use thereof.  

16. MISCELLANEOUS

16.1. Assignment for Paid Subscribers. Neither party may assign its rights and obligations hereunder under the Agreement, in whole or part, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed (except in connection with a merger or corporate reorganization, by operation of law, or in connection with a sale of all or substantially all of party’s assets, for which no consent shall be required).  

16.2. Assignment for Free Plan Customers. EverAfter may assign this Agreement without Customer's prior written consent. Customer shall not assign (or in any other way transfer this Agreement) without EverAfter’s express prior written consent. Any prohibited assignment shall be null and void.

16.3. Entire Agreement. This Agreement represents the entire agreement between EverAfter and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings, and statements between Customer and EverAfter with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement Customer has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement. No amendment, modification, or change may be made to this Agreement except by a written instrument duly signed by both Parties. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement Customer hereby irrevocably waives, to the maximum extent legally permitted, any right applicable to Customer that the Agreement be localized to meet Customer’s language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.

16.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.

16.5. Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.

16.6. Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing and duly signed by an authorized representative of the waiving party and shall be valid only in the specific instance in which given.

16.7. Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency, or other relationship between the parties.

16.8. Notices. Customer agrees that EverAfter may send Customer notices by email, via the Workspace, by regular mail, and/or via postings on or through the Services. Except as stated otherwise in this Agreement or required by applicable Law, Customer agrees to send all notices to EverAfter, to support@everafter.ai.

16.9. No Third Party Beneficiaries. There shall be no third-party beneficiaries of or under this Agreement.

16.10. Force Majeure. EverAfter shall not be responsible for any failure to perform any obligation or provide the Services hereunder because of any: (a) act of God; (b) war, riot, or civil commotion; (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages; and/or (d) other similar cause beyond EverAfter’s reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Services) shall not be deemed within EverAfter’s reasonable control.

16.11. Section Headings. The Section and sub-Section headings in this Agreement are for the convenience of reading only, and may not be used or relied upon for interpretive purposes.

16.12. Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

Last updated on February, 2024