Everyware Worldwide Inc, its subsidiaries and affiliated companies, offer Everyware services to You, provided that You are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. In order to access certain services, You may be required to provide current, accurate identification, contact, and other information as part of the registration process and/or continued use of Everyware services. You are responsible for maintaining the confidentiality of Your account password, and are responsible for all activities that occur under Your account. You agree to immediately notify Everyware of any unauthorized use of Your password or account or any other breach of security. Everyware cannot and will not be liable for any loss or damage arising from Your failure to provide us with accurate information or to keep Your password secure.
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content") are the sole responsibility of the person from which such Content originated. Everyware reserves the right, but shall have no obligation, to pre-screen, flag, filter, refuse, modify or move any Content available via Everyware services. You understand that by using Everyware services You may be exposed to Content that is offensive, indecent or objectionable, and that You use Everyware services at Your own risk.
You agree that You are responsible for Your own conduct and any Content that You create, transmit or display while using Everyware services and for any consequences thereof. You agree to use Everyware services only for purposes that are legal, proper and in accordance with the Terms and any applicable policies or guidelines. You agree that You will not engage in any activity that interferes with or disrupts Everyware services or servers or networks connected to Everyware services.
In addition to this agreement, Your use of some specific Everyware services is governed by the policies or guidelines specific to those services and which are specifically incorporated into this agreement.
You agree to comply with Your company's data usage and privacy policies.
Users outside of the United States agree to comply with their own local rules regarding online conduct and acceptable content, including laws regulating the export of data to and from the United States or Your country of residence.
You understand that the technical processing and transmission of Everyware services, including Your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks, devices or services.
You acknowledge and agree that Everyware services and any necessary software used in connection with Everyware services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws and treaties. You further acknowledge and agree that Content contained in sponsor advertisements or presented to You through Everyware services is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Everyware or other proper third party rights holders, You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on Content, Everyware services or Software, in whole or in part except as specifically authorized in a separate written agreement.
Subject to the Terms, Everyware grants You a personal, non-transferable and non-exclusive right and license to use the object code of its Software; provided that You do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software, unless such activity is expressly permitted or required by law or has been expressly authorized by Everyware in writing. You agree not to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to Everyware services. You agree not to access Everyware services by any means other than through the interface that is provided by Everyware for use in accessing Everyware services except as specifically authorized in a separate written agreement. Except as expressly authorized by Everyware You agree not to use, copy, imitiate, or incorporate any trademark, service mark, trade dress, company name, or product name in a way that is likely to cause confusion among consumers. You also agree not to remove, obscure, or alter Everyware’s or any third party's copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Everyware services or Software.
Everyware claims no ownership or control over any Content submitted, posted or displayed by You on or through Everyware services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content You submit, post or display on or through Everyware services and You are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through Everyware services which are intended to be available to the members of the public, You grant Everyware a worldwide, non-exclusive, royalty-free license to reproduce, adapt, modify, publish and distribute such Content on Everyware services for the purpose of displaying, distributing and promoting Everyware services. Everyware reserves the right to syndicate Content submitted, posted or displayed by You on or through Everyware services and use that Content in connection with any service offered by Everyware. Everyware furthermore reserves the right to refuse to accept, post, display or transmit any Content in its sole discretion.
You represent and warrant that You have all the rights, power and authority necessary to grant the rights granted herein to any Content submitted.
Your use of any Software provided by Everyware will be governed by the Terms and any additional terms and conditions of the end user license agreement accompanying such Software. Everyware Software may automatically report version number or other diagnostic information and may automatically download upgrades to the Software to update, enhance and further develop Everyware services, including providing bug fixes, patches, enhanced functions, missing plug-ins and new versions.
It is our policy to respond to notices of alleged infringement that comply with the United States’ Digital Millennium Copyright Act or other applicable law and to terminating the accounts of repeat infringers.
Any use of Everyware’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features must be in compliance with the Terms.
You agree that Everyware has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by Everyware services. You acknowledge that Everyware may have set no fixed upper limit on the number of transmissions You may send or receive through Everyware services or the amount of storage space used; however, we retain the right, at our sole discretion, to create limits at any time with or without notice.
Upon the termination of Your use of Everyware services, including upon receipt of a certificate or other legal document confirming Your death, Everyware will close Your account and You will no longer be able to retrieve content contained in that account.
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of Everyware services, use of Everyware services, or access to Everyware services except as otherwise expressly provided in the Terms or as specifically authorized in a separate written agreement.
Everyware reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, Everyware services (or any part thereof) with or without notice. You agree that Everyware shall not be liable to You or to any third party for any modification, suspension or discontinuance of Everyware services.
Everyware may immediately suspend, limit or terminate the availability of the Platform, the Services and Content (and any elements and features of them), in whole or in part, for any reason, in Everyware’s sole discretion, and without advance notice or liability, including without limitation in circumstances where: (i) one of Everyware’s third party telecommunication providers directs Everyware to suspend, limit or terminate services; or (ii) where You fail to provide evidence, upon request, of Your compliance with law or related text messaging practices (such as consent collection and management processes). Delivery and deliverability of text/MMS/SMS messages are not guaranteed by Everyware and may be impacted by third party mobile carriers, service providers and/or their designees or service partners.
You represent, warrant, and covenant that:
- Your provision of data to Everyware complies with applicable laws and is legally sufficient to enable Everyware’s Services on Your behalf, including all use and sharing of data contemplated hereunder and in connection the Services;
- You have (i) provided notices to and (ii) collected consents from each individual messaging recipient, and, for each of (i) and (ii), such notices and/or consents are legally sufficient to enable Your transmission, receipt and all other messaging to or from each individual through the Services;
- Your use of the Services will fully comply with all applicable law.
Notwithstanding that Everyware may offer or provide template materials supporting interactions or data collection from individuals who interact with You, or to whom You send messages, You acknowledge and agree that Everyware is not and shall have no responsibility to ensure that Your use of Everyware services, including messages sent through the Services, complies with law. You expressly acknowledge and agree that Everyware, third party mobile carriers, service providers and/or their designees or service partners are each authorized to monitor Your use of the Services for fraud, abuse or non-compliance with law, and to take steps in their sole discretion and without liability to You, reasonable or not, to prevent or limit such fraud, abuse or non-compliance with law. You agree to cooperate and comply at Your sole expense with any audit or informational requests from Everyware, third party mobile carriers or our third party partners, and our or their auditors, service providers or designees or regulators, to audit, review, or gather information about Your use of our Services, including to demonstrate Your compliance with applicable law.
You understand and agree that Your continued use of the Everyware service may be subject to Your provision of information, including in a technical form required by Everyware, regarding the specific notice, consent, messaging content, recipient list, and other details of Your planned and other messaging campaigns. Everyware may share such information with third parties, including third party mobile carriers or our third party partners, and our or their auditors, service providers or designees or regulators, including in connection with reviews for compliance or best practices.
The following terms and information constitute an introduction to the concept of spam and the general contours of a responsible, permission-based text marketing campaign. In addition, you acknowledge and agree that Your use of the Platform and our services may be subject to additional acceptable use or anti-spam policies made available to you, and which will be deemed incorporated into these Terms by this reference. This general information is not an exclusive source for applicable laws, guidelines, and compliance responsibilities pertaining to Your use of the Platform. No part of these Terms of Service, including this Section, is intended, nor shall it be deemed to constitute, legal advice. You should consult a lawyer for legal advice on Your texting practices. The information herein is provided merely as a courtesy and is not intended to replace Your responsibility to familiarize Yourself with and abide by the legal requirements pertaining to Your messages prior to using the Platform.
What is spam? Spam is any type of unsolicited message. You should not assume that an existing relationship with any message recipient constitutes permission to send text messages. For example, if a customer disclosed a mobile number to You in the course of business but did not give You specific permission to send marketing messages, You may not have permission to send text messages to that mobile number. Also, some federal and state laws restrict the hours and days when marketing calls can be made. Before using the Platform, You agree to review and abide by all federal, state, and local laws, statutes and regulations as well as applicable text/SMS/MMS messaging/telecommunications industry guidelines, including, but not limited to, the following laws and guidelines, and to check for any revisions, as they may be amended over time:
Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., and related regulations, 47 C.F.R. Part 64.1200, et seq; Telemarketing Sales Rule ("TSR"), 16 C.F.R. Part 310, et seq.; Controlling the Assault of Non-Solicited Pornography and Marketing ("CAN-SPAM") Act of 2003; Mobile Marketing Association ("MMA") U.S. Consumer Best Practices Guidelines for Messaging; Cellular Telecommunications Industry Association ("CTIA") Best Practices and Guidelines for Location-Based Services; CTIA Messaging Principles and Best Practices; CTIA SMS Interoperability Guidelines; and CTIA Short Code Monitoring Program Handbook.
The Service is made available as monthly subscription. Everyware charges for Paid Plans as well as charges for products or services offered in the CRM or Mobile App. In addition, You may purchase the configuration, setup and training services at an additional charge. If You have elected to upgrade to a Paid Plan, You will be billed monthly starting on the day of the upgrade. You can cancel a Paid Plan at any time and You will not be billed again. Upon upgrading or downgrading in plan level, You will be credited pro rata for the time remaining in the current billing cycle. Downgrading Your account may cause the loss of features, or capacity of Your account. Everyware does not accept any liability for such loss. Prices of the Service, including but not limited to monthly fees to the Service, are subject to change upon 30 days’ notice from us. Such notice may be provided at any time. In addition, special pricing may apply for customers with an exceptionally high number of end-users or an unusually high monthly usage of the Service.
For subscriptions, you will have thirty (30) days after the date that any renewal fee is posted to your account to give notice that you want to cancel your subscription, and the subscription will be cancelled upon receipt of such notification and a credit will be posted to your account equal to the latest renewal fee charged. Transaction fees, or other processing fees are non-refundable.
Everyware provides an interface for the account owner to change credit card information (e.g., upon card renewal). The account owner will receive an email receipt upon each credit card charge. The receipts are also available for the account owner from within the application. Everyware uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain, or use Your billing information except to process Your credit card information for Everyware. Please visit http://everyware.com/privacy to understand how Everyware collects and uses personal information.
If you want to cancel your account please email email@example.com to begin the cancellation process. There are no other means of cancelling Your account. All of Your Content will be deleted from the Service within one (1) hour upon cancellation. This information cannot be recovered once Your account is cancelled. If You are subscribed to the Paid Plan and You cancel the Service, Your cancellation will take effect immediately and You will not be charged again.
Everyware reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate Your account (any part thereof) or use of the Service and remove and discard any of Your content in the Service, for any reason, including, if Everyware believes that You have violated this TOS. Everyware will use diligent efforts to publish on the Site or notify You about any planned downtime of the Service, and will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Your use of Service, may be referred to appropriate law enforcement authorities. Everyware shall not be liable to You or any third party for any modification, limitation, suspension or discontinuation of the Service.
We may offer promotional trial subscriptions to access the Platform and Services for free for a limited time or at special discounted prices. If You sign up for a trial use, Your rights to use the Platform and Services are limited by the terms of such trial and will terminate or renew on the terms of Your trial arrangement and/or any applicable Additional Terms. Please be aware that when You sign up for a free trial, You may be required to provide Your credit card number and Everyware will confirm Your credit card is valid. When we process Your credit card, some credit card companies may place a temporary hold on Your account for Your first payment. Please contact Your credit card company if You have questions. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
Everyware services may provide, or third parties may provide, links to other World Wide Web sites or resources. Everyware may have no control over such sites and resources and You acknowledge and agree that Everyware is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Everyware shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
You agree to defend, hold harmless and fully indemnify, at Your own expense, Everyware, and its subsidiaries, affiliates, officers, agents, attorneys, employees, advertisers, licensors, suppliers or partners (collectively "Everyware and Partners") from and against any and all actual or alleged claims, losses, penalties, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature, arising from or in any way related to any of the following:
- Your use of Everyware services;
- Violation of the Terms or any other actions connected with Your use of Everyware services;
- Any non-compliance with law with respect to the use of Everyware services, including without limitation the Telephone Consumer Protection Act and other similar laws governing the transmission of electronic messages;
- Your violation of any representations, warranties, or covenants under these Terms; and
- Your failure to provide or have provided appropriate notices, or Your failure to obtain or have obtained appropriate consents, each as legally sufficient to initiate and transmit all messages and communications through our Services in compliance with applicable law.
In defending under this provision, You shall have no authority to make admissions which could give rise to further liability to Everyware, nor shall You accept obligations on behalf of Everyware, except with Everyware’s further express, signed, prior written approval, which approval may be withheld for any or no reason. Everyware may participate in or assume control of the defense at any time by providing written notice to You.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF EVERYWARE SERVICES IS AT YOUR SOLE RISK AND YOU, AND NOT EVERYWARE, ARE RESPONSIBLE FOR YOUR USE OF EVERYWARE SERVICES IN COMPLIANCE WITH APPLICABLE LAW. EVERYWARE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVERYWARE AND PARTNERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- EVERYWARE DOES NOT ACCEPT AND SHALL HAVE NO LIABILITY OR OBLIGATION TO YOU WITH RESPECT TO THE MONITORING OF YOUR USE OF THE SERVICES FOR SUSPECTED ABUSE, FRAUD, OR ILLEGAL ACTIVITY, BY WHOMEVER SUCH MONITORING IS CONDUCTED, INCLUDING WITHOUT LIMITATION CONDCUT BY EVERYWARE, THIRD PARTY MOBILE CARRIERS, REGULATORS, SERVICE PROVIDERS AND/OR THEIR DESIGNEES OR SERVICE PARTNERS.
- EVERYWARE AND PARTNERS DO NOT WARRANT THAT (i) EVERYWARE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) EVERYWARE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, GUARANTEED OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF EVERYWARE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH EVERYWARE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF EVERYWARE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EVERYWARE OR THROUGH OR FROM EVERYWARE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EVERYWARE AND PARTNERS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EVERYWARE OR PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE EVERYWARE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM EVERYWARE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON EVERYWARE SERVICES; OR (v) ANY OTHER MATTER RELATING TO EVERYWARE SERVICES.
IN NO EVENT SHALL EVERYWARE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO EVERYWARE SERVICES, ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ARISING IN ANY OTHER WAY OR UNDER ANY OTHER THEORY EXCEED THE GREATER OF (A) THE TOTAL OF THE AMOUNTS YOU PAID TO EVERYWARE IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) $100.
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 14 AND 15 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY LIMITATIONS AND/OR EXCLUSIONS OF LIABILTY IN THIS AGREEMENT SHALL NOT APPLY TO ANY OF CUSTOMER’S OBLIGATIONS, LIABILITY, REPRESENTATIONS, WARRANTIES, COVENANTS, AND/OR INDEMNIFICATION OBLIGATIONS HEREUNDER.
You agree that, except as otherwise expressly provided in the Terms, there shall be no third party beneficiaries to the Terms.
You agree that Everyware may provide You with notices, including those regarding changes to the Terms, by email, regular mail, or postings on Everyware services.
The Terms (including any policies, guidelines or amendments that may be presented to Your form time to time such as Program Policies and Legal Notices) constitute the entire agreement between You and Everyware and govern Your use of Everyware services, superceding any prior agreements between You and Everyware for the use of Everyware services. You also may be subject to additional terms and conditions that may apply when You use or purchase certain other Everyware services, affiliate services, third-party content or third-party software.
Choice of Law and Forum.
The Terms and the relationship between You and Everyware shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Everyware agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.
Waiver and Severability of Terms.
The failure of Everyware to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
Statute of Limitations.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Everyware services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section headings in the Terms are for convenience only and have no legal or contractual effect.