January 24, 2013
Please read these terms and conditions of use carefully. These terms and conditions may have changed since your last visit to this web site. By using any of the services, you confirm your acceptance of these terms and conditions. If you are entering into this agreement on behalf of a company or other entity, you represent that you have the legal authority to bind that entity to these terms and conditions. If you do not have such authority or do not accept these terms and conditions, then you may not use the services.
EVERTRUE TERMS & CONDITIONS
1. Definitions. In this Agreement, the following terms shall have the meanings set forth below:
1.1. “Client Data” shall mean any data, information or material provided or submitted by Client or Client’s Users to EverTrue in the course of using the Services.
1.2. “Confidential Information” shall mean any information held in confidence by either party which is furnished by one party to the other party, whether orally or in writing, in connection with this Agreement. Confidential Information includes, but is not limited to, Client Data, proprietary technology, business and technology processes and requirements, the terms of this Agreement (including pricing terms), product information, and financial information.
1.3 “Documentation” shall mean EverTrue’s written proposal and documentation describing the functionality and use of the EverTrue Platform and EverTrue App. Documentation shall also refer to the EverTrue App available in Apple’s iTunes App Store.
1.4. “EverTrue App” shall mean the EverTrue software application that is downloaded to a User’s smartphone in order to allow a User to use the Services.
1.5. “EverTrue Platform” shall mean EverTrue’s alumni relations mobile platform, as described in the Documentation.
1.6. “EverTrue Technology” shall mean all of EverTrue’s proprietary technology (including the EverTrue App, EverTrue Platform, and other software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) used by EverTrue in providing the Services.
1.7. “Intellectual Property” shall mean all U.S. and foreign statutory and non-statutory intellectual property rights, including copyrights, patents, trademarks, service marks, registrations thereof and applications therefor; proprietary rights in information and data, including trade secrets and know how; and moral rights and other personal rights in inventions and original works.
1.8. “Service” or “Services” shall mean the services provided by EverTrue pursuant to this Agreement, including the implementation services described at Section 2 and the provision to Client by EverTrue of access to the EverTrue Platform.
1.9. “Third Party Systems” shall mean any third party software systems that will interface to the EverTrue Platform for the purposes of access to Client Data and provision of the Services.
1.10. “Updates” shall mean the periodic updates, patches, fixes, maintenance releases and the like that EverTrue may automatically download or incorporate into the EverTrue Technology.
1.11. “User” shall mean Client’s alumni and Client’s employees, representatives, consultants, contractors or agents, in each case who are authorized to use the Services and have been supplied user identification and passwords by Client or by EverTrue at Client’s request.
2.1 Promptly after the Effective Date, EverTrue shall provide design, development and implementation services (“Implementation Services”), as described on the Cover Sheet, in order to provide access to the EverTrue Platform to Client. Client shall provide EverTrue with timely and reasonable information, resources and assistance as necessary to enable EverTrue to provide such Implementation Services. If the Implementation Services involve interfacing or connecting the EverTrue Platform to any Third Party Systems, Client shall be responsible for ensuring that EverTrue has the right to connect to such Third Party Systems, for obtaining the consent of the owner or controller of the Third Party System, for facilitating access to APIs and other interfaces, and for notifying EverTrue in writing of any conditions or restrictions that apply to such connection or interface. EverTrue shall not be responsible for any defect or failure in the Services due to errors in the Client Data or Third Party Systems.
2.2 If the Implementation Services involve the incorporation of Client’s name, logo or similar indicia (“Client Marks”) into the EverTrue App, Client hereby grants EverTrue the non-exclusive right and license to use and display the Client Marks solely for the purposes of performance of this Agreement. EverTrue obtains no rights in the Client Marks except for the limited right described in the preceding sentence, and Client retains all right, title and interest in the Client Marks. All use of the Client Marks by EverTrue shall inure to Client.
3. License and Restrictions.
3.1. EverTrue hereby grants to Client and Client’s Users a non-transferable, non-exclusive, worldwide right to use the Services for the purposes of Client’s alumni relations, subject to the terms and conditions of this Agreement. All rights not expressly granted to Client are reserved by EverTrue and its licensors.
3.2. Client shall not: (i) use the Services except as expressly authorized in this Agreement; (ii) license, sublicense, sell, resell, transfer, assign, distribute, hypothecate, lease, loan or otherwise convey, commercially exploit or make available to any third party the Services or EverTrue Technology in any way; (iii) send to EverTrue material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, or otherwise interfere with or disrupt the integrity or performance of the Services; or (iv) modify the Services or the EverTrue Technology, incorporate the Services or EverTrue Technology in whole or in part in any other product or create derivative works based on all or part of the Services or EverTrue Technology.
3.3. User logins are for authorized Users and cannot be shared or used by more than one individual User.
3.4 As part of the Services, EverTrue shall make the EverTrue App available for download at no cost by Users. When Users download the EverTrue App, they will be required to agree to an End User License Agreement which will protect EverTrue’s rights in the EverTrue App and allow use of the EverTrue App only for the purposes of the Services.
4. Hosting and Support Services.
4.1. EverTrue shall host the EverTrue Platform on its servers and provide Client and Users with access to the EverTrue Platform via an application server web environment. EverTrue shall use commercially reasonable efforts to provide access to the Services twenty-four (24) hours per day, seven (7) days per week, subject to scheduled maintenance and Force Majeure. EverTrue will inform Client at least 24 hours in advance of any scheduled maintenance. If access to the Services becomes unavailable due to problems with the servers, EverTrue will diligently repair any such problems so as to maintain Client’s ability to use the Services.
4.2 Notwithstanding Section 4.1, EverTrue’s hosting obligations shall only extend to Client Data if indicated on the Cover Sheet. If so indicated, EverTrue shall host the Client Data and shall be responsible for maintaining confidentiality of Client Data in accordance with Section 7 below. If EverTrue is not hosting Client Data, and subject to the terms and conditions of this Agreement, EverTrue shall only be responsible for maintaining confidentiality of Client Data in EverTrue’s possession and control.
4.3. Client is responsible for backing up Client Data. Data transmission between Client and Third Party Systems and EverTrue via any network are exclusively Client’s responsibility. EverTrue assumes no responsibility for the reliability or performance of any data network or any data integrity, communications or connection problems Client may experience that fall outside the EverTrue Platform. EverTrue does not guarantee against data loss or inaccuracies of Client Data due to connectivity issues or Client’s hardware failures.
4.4. During the term of the Agreement, EverTrue shall supply Client with access to email and telephone assistance in use of the Services and to resolve any failures of the Service. Phone support and email support shall be available five (5) days a week from 9am – 5pm Eastern Standard Time, to EverTrue’s support center at firstname.lastname@example.org and (855) 387-8783.
5. Fees and Renewal Billing.
5.1. Client shall pay EverTrue the charges set forth on the Cover Sheet. The Annual License Fee is invoiced on the date that the Agreement is signed. All invoices are due and payable net thirty (30) days after receipt of EverTrue’s invoice. A valid credit card or approved purchase order must be provided at the time Client subscribe to the Services.
5.2. Client shall be responsible for, and shall pay or reimburse EverTrue for, all applicable state, local, federal and governmental taxes, duties or charges of any kind that may be levied upon either party in connection with this Agreement except for taxes levied on EverTrue’s net income.
5.3. If this Agreement is renewed in accordance with Section 11.1 of this Agreement, EverTrue shall send an invoice for the fees owed for the Renewal Term. The renewal charge will be equal to the initial Annual License Fee, unless EverTrue has given Client at least 30 days’ prior written notice of a fee increase, such increase to be effective for the Renewal Term and thereafter.
6.1. The license granted to Client does not convey any rights in the EverTrue Technology, express or implied, or ownership in the Service or any intellectual property rights thereto. EverTrue (and its licensors, where applicable) shall retain all rights, title and interest, including in any intellectual property or other proprietary rights, in and to the EverTrue Technology and the Services and in any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Services, excluding always the Client Data and Client Marks. The service marks, logos and product and service names associated with the Services are marks of EverTrue or third parties (collectively, the “Marks”). Client shall have the right to use and display such Marks for the purposes of the Services and promotion of the Services to Users, subject always to EverTrue’s trademark usage policies. All use of the Marks will inure to EverTrue.
6.2. All title and intellectual property rights in and to the Client Data and Client Marks are owned exclusively by Client, and EverTrue shall use Client Data and the Client Marks only for the purposes of this Agreement.
6.3 Without limitation of the foregoing, all technology, software or other material developed, invented, created or authored by any party in connection with the Services shall belong solely and exclusively to the developing party, including all Intellectual Property relating thereto.
7. Confidential Information.
7.1. Each party shall not disclose to any third party the other party’s Confidential Information and shall limit access and use to those of its employees and agents who require such access and use in connection with its rights and obligations under this Agreement. Each party shall take appropriate action with its employees and agents to satisfy its obligations hereunder and shall protect the other’s Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care.
7.2. The obligations set forth in this Section shall not apply to information (a) previously known to the receiving party prior to disclosure by the disclosing party, (b) which is or becomes publicly known through no wrongful act of the receiving party, (c) received from a third party under no confidentiality obligation with respect to the Confidential Information, or (d) required to be disclosed under administrative or court order, or in an arbitration or litigation arising out of a dispute between the parties or their successors or assigns. If a party is legally required to disclose any Confidential Information, that party shall, to the extent allowed and practicable, provide the other party prompt notice of such requirement so that the other party may seek a protective order or other appropriate remedy or waive compliance with respect to that disclosure.
7.3. Each party agrees that, in addition to any other remedies available, the other shall be entitled to injunctive relief to enforce the terms of this Section 7.
7.4 Each party is responsible for: (i) the security of non-public or personally identifiable information (“Personal Information”) on the systems under its control; and (ii) data security issues arising from its systems or directly resulting from its own third party vendors or subcontractors, if any, in connection with the Services. Each party will maintain commercially reasonable information security practices designed to prevent unauthorized or unlawful access to, use, disclosure or alteration of Personal Information (collectively, a “Security Incident”). In the event of a Security Incident involving the other party’s Personal Information, the affected party will promptly (a) assess the nature and scope of the Security Incident; (b) identify the Personal Information involved, if any; (c) take appropriate steps to contain, control and stop the Security Incident; and (d), in the event Personal Information was compromised and it is reasonably suspected that misuse will result, promptly notify the other party of the Security Incident, subject to any request by law enforcement or other government agency to withhold such notice pending the completion of an investigation.
8. Warranty; General Obligations of Customer.
8.1. EverTrue warrants that the Service will perform substantially as described in accordance with the Documentation available online at the EverTrue website. Client’s sole remedy and EverTrue’s sole responsibility for any failure of the Services to conform to this warranty shall be EverTrue’s commercially reasonable efforts to modify the Services so as to conform to this warranty, or, if EverTrue is unable to do so, a refund of the fees paid for the non-conforming Services.
8.2. Client covenants that throughout the term of this Agreement, Client shall be responsible for all activity occurring under Client’s User accounts and shall: (a) comply with all applicable laws and regulations with respect to Client’s use of the Services under this Agreement, including those related to data privacy and the transmission of technical or personal data; (b) only use the Services as contemplated by this Agreement; and (c) assume all liability for any unauthorized use of the Services by Client and Client’s employees, officers, affiliates and agents. Client acknowledge that EverTrue shall have the right, from time to time, to provide Updates or otherwise upgrade the Services. Client shall notify EverTrue immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
9. Disclaimer of Warranties and Limitation of Liability.
9.1. EXCEPT AS STATED IN SECTION 8.1, EVERTRUE PROVIDES THE SERVICES TO CLIENT “AS IS” AND DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EVERTRUE DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY EVERTRUE EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY FOR THE SERVICE, AND CLIENT MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. EVERTRUE’S LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICE. IN ADDITION, EVERTRUE HEREBY DISCLAIMS ANY AND ALL LIABILITY PERTAINING TO (I) THE TRANSMISSION OF INFORMATION OVER THE INTERNET, OR (II) ANY IMPAIRMENT OR DISRUPTION OF CLIENT’S CONNECTION TO THE INTERNET OR ACCESS TO THE SERVICE.
9.2. TO THE FULL EXTENT ALLOWED BY LAW, EVERTRUE (AND ITS LICENSORS, WHERE APPLICABLE) SHALL IN NO EVENT BE HELD LIABLE, WHETHER BASED UPON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF EVERTRUE HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION.
9.3. IN NO EVENT SHALL EVERTRUE’S AGGREGATE LIABILITY TO CLIENT OR OTHERS ARISING UNDER OR RELATED TO THIS AGREEMENT AND/OR CLIENT’S USE OF THE SERVICES EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY AND/OR DUE FROM CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE OR REASONABLY SHOULD HAVE BEEN DISCOVERED.
10.1. EverTrue shall indemnify Client from and against claims that the Services or the EverTrue Technology infringe any third party’s U.S. Intellectual Property and all damages and costs awarded or paid in settlement and reasonable attorney’s fees with respect thereto, provided that Client (a) promptly notify EverTrue of any such claim and cooperate with EverTrue in the defense thereof and (b) give EverTrue sole control of the defense and settlement of the claims. EverTrue will have no obligation with respect to any claim arising out of or based upon Client Data, Client Marks, Client’s modification of the Services or use of the Services in a manner not permitted by this Agreement
10.2. If the Services or the EverTrue Technology or any part thereof provided under this Agreement is the subject of a claim, suit or proceeding for infringement of any U.S. Intellectual Property, or in the event of any adjudication that the Services or EverTrue Technology infringes upon any U.S. Intellectual Property, EverTrue, at its expense, shall (a) secure for Client the right to continue using the Services or the EverTrue Technology or part thereof; (b) replace or modify the Services or the EverTrue Technology or part thereof to make it non-infringing; or (c) if reasonable efforts to achieve the foregoing are not available on commercially reasonable terms, EverTrue shall have the right to terminate this Agreement upon notice to Client and shall refund any fees prepaid to EverTrue for the period after such termination.
10.3. Client shall, at its own expense, indemnify and hold EverTrue, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any and all claims: (i) alleging that the Client Data or Client Marks, or any use thereof, infringes or violates the Intellectual Property rights, contract rights, or other rights of any third party; or (ii) alleging that EverTrue’s use of Third Party Systems as permitted by Client infringes or violates any Intellectual Property rights, contract rights, or other rights of any third party. EverTrue shall (a) promptly notify Client of any such claim and cooperate with Client in the defense thereof and (b) give Client sole control of the defense and settlement of the claims.
11. Term and Termination.
11.1. This Agreement shall be effective as of the Effective Date and shall continue for the period set forth on the Cover Sheet (the “Initial Term”) and, upon expiration of the Initial Term, shall automatically renew for successive renewal terms of one (1) year (each successive renewal term, a “Renewal Term”) (collectively, the “Term”), unless otherwise terminated in accordance with this Section 11.
11.2. Termination for Breach; Suspension. Either party may terminate this Agreement if the other party commits any material breach of this Agreement and fails to remedy the breach within thirty (30) days after written notice of the breach is given. In the event that EverTrue fails to remedy the material breach within thirty (30) days after written notice of the breach is given, Client will be entitled to reimbursement of a pro rata portion of the corresponding Annual License Fee (for example, if the Agreement is terminated on the sixth (6th) month anniversary of a Renewal Term, then one-half of the Annual License Fee paid by Client to EverTrue corresponding to such Renewal Term shall be reimbursed to Client). In addition, if Client is delinquent in making payments to EverTrue when due, EverTrue may suspend access to the Services. Late payments shall be subject to interest of 1.0% per month on any outstanding balances, or the maximum allowed by law, whichever is less, plus all expenses of collection.
11.3. Handling of Client Data Upon Suspension/Termination. Upon termination or suspension of the Services, all access of Client and its Users to the EverTrue Platform and the Services shall cease. If EverTrue is hosting Client Data: (a) after the expiration of a reasonable period after termination, not less than ninety (90) days, subject to applicable law, EverTrue will irretrievably delete Client Data; and (b) upon Client’s written request within 30 days of termination of this Agreement (other than by reason of Client’s breach), EverTrue will make available to Client a file of the Client Data, provided that Client has paid in full all undisputed amounts owed to EverTrue.
12. Arbitration and Equitable Relief. Any dispute arising out of or relating to this Agreement, including the breach, termination or validity thereof, shall be finally resolved by a binding arbitration in accordance with the International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitration by a sole arbitrator. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. The place of the arbitration shall be Boston, Massachusetts. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator will be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The arbitrator will apply Massachusetts law to the merits of any dispute or claim, without reference to rules of conflict of laws. Client hereby expressly consent to the personal jurisdiction of the state and federal courts located in Boston, Massachusetts for any action or proceeding arising from or relating to the Agreement and/or relating to any arbitration in which the parties are participants. The parties will each pay one-half of the costs and expenses of such arbitration, and each of the parties shall separately pay its counsel fees and expenses.
13.1. Compliance with Laws. Each party shall comply with all applicable laws with respect to its performance under this Agreement.
13.2. Publicity. Client acknowledges and agrees that EverTrue may list Client as a client on its client lists, and may display Client’s name and logo on EverTrue’s website for such purposes.
13.3. Notices. Notices and other communications to Client under this Agreement will be delivered by means of a general notice on the Services, electronic mail to Client’s e-mail address on record with EverTrue or by written communications sent via first class mail or pre-paid post to Client mailing address on record with EverTrue. A notice will be deemed given upon the expiration of 48 hours (if sent by mail or post) or 12 hours (if sent by electronic mail). Notice to EverTrue shall be deemed given upon receipt by EverTrue by either of the following: (1) confirmed facsimile at (855) 387-8783; or (2) mail delivered by a nationally recognized, overnight delivery service or first class postage prepaid mail at 790 Boylston St. Apt. 18B Boston, MA 02119.
13.4. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior oral or written agreements or communications, with regard to the subject matter described herein. This Agreement may only be modified in writing, signed by both parties.
13.5. Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party; provided, however, that either party may assign this Agreement to any successor or assign of its business, whether by merger, change of control, or sale of all or substantially all of its assets. Subject to the prior sentence, any attempt to assign this Agreement or any rights hereunder without the prior written approval of the other party shall be null and void.
13.6. Waiver and Severability. Waiver by a party of any default by the other shall not be deemed a waiver of any other default. If any term or condition of this Agreement is determined to be invalid or unenforceable in whole or in part for any reason, this Agreement shall be reformed to be valid and enforceable consistent with the intention of the parties as expressed herein to the greatest extent permitted by law.
13.7. No Third Party Benefits. This Agreement is entered into solely for the respective benefit of the parties and their permitted successors and assigns, and nothing in this Agreement will be construed as giving any right, remedy or claim under this Agreement to any third parties.
13.8. Force Majeure. EverTrue shall not be in default to the extent that failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond its control, including acts of God, fire, natural disaster, war, terrorism, riot or other civil disturbance, outages of electrical, telecommunications or computer server hosting services, acts of government or labor strikes or lockouts (“Force Majeure”).
13.9. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of laws.
13.10. Relationship of the Parties. The relationship of the parties shall be that of independent contractors. Nothing herein shall be construed to create any agency, partnership, joint venture or similar relationship or to subject the parties to any implied duties or obligations respecting the conduct of their affairs which are not expressly stated herein. Neither party shall have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of or in the name of the other party, or to bind the other party in any matter or thing whatsoever.