1. Responsibility for Content.
Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials (“Content”) accessible through the Evertoon Properties is the sole responsibility of the party from whom such Content originated. When we use the phrase “Evertoon Properties,” we mean the Application, the Software, the Website, the Services, and the information and content available on any of the foregoing. This means that you, and not Evertoon, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Evertoon Properties (“Your Content”), and other Users of the Evertoon Properties, and not Evertoon, are similarly responsible for all Content they Make Available through the Evertoon Properties (“User Content”). Your Content includes Content from a third party that you Make Available on the Evertoon Properties. Basically, make sure you have the right to add Content before you put that Content on our Service.
1.1 License to Your Content.
(1.1a) You grant Evertoon a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content. This includes the right to make Your Content available on any other sites, applications, and interfaces that interact with Evertoon.
(1.1c) You also hereby grant any other Evertoon user a fully-paid, perpetual, irrevocable non-exclusive license to: (i) use, reproduce, distribute, display and perform Your Content (or any component thereof) as permitted through the functionality of the Service; and (iii) download and export such Content for use outside of the Evertoon Properties, including reproducing, distributing, displaying and performing such Content.
(1.1d) You agree that you, not Evertoon, are responsible for all of Your Content that you Make Available on or in the Evertoon Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. If you want to publish Content of someone other than yourself, you must get permission from the individuals portrayed in the Content before using the content through our Services.
(1.1e) The above licenses will continue unless and until you remove Your Content from the Evertoon Properties, in which case the licenses will terminate within a commercially reasonable period of time after such deletion. Please remember that even if you delete Your Content and terminate your use of the Services, Evertoon Users may retain and continue to use, store, display, reproduce, modify, create derivative works, perform, and distribute any of your Content that they have exported, downloaded, stored or shared through Evertoon. If you do not want Your Content used in other Users’ projects on or off the Evertoon Properties, you should not add it to the Evertoon Properties. When you delete Your Content from the Evertoon Properties, we will not be able to remove Your Content from any Content which has been exported from the Evertoon Properties. Notwithstanding the foregoing, the license to use Your Content for archiving or preserving the Content for disputes, legal proceedings, or investigations will continue indefinitely. Please note that removed Content may also be cached in search engine indices after removal and that we have no control over such caching.
1.2 No Obligation to Pre-Screen Content. You acknowledge that Evertoon has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Evertoon reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Evertoon pre-screens, refuses or removes any Content, you acknowledge that Evertoon will do so for Evertoon’s benefit, not yours. Without limiting the foregoing, Evertoon shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
1.3 Storage. Unless expressly agreed to by Evertoon in writing elsewhere, Evertoon has no obligation to store any of Your Content that you Make Available on the Evertoon Properties. Evertoon has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Evertoon Properties. You agree that Evertoon retains the right to create reasonable limits on Evertoon’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Evertoon in its sole discretion.
1.4 Control and Privacy. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you have set this setting to private, we may give you tools that allow other Users to view, edit, and modify Your Content and you to collaborate with them. Evertoon is not responsible for, and does not endorse, any Registered User (or his or her acts and omissions), and or the Content provided or modified by such Registered User. Please think carefully about who you add as a collaborator for Your Content. You hereby authorize us to include any of Your Content that is designated as public.
1.5 Display. We reserve the right to commercialize Your Content and to include advertising in and around Your Content. As we do not control any advertising, you hereby agree and acknowledge to the juxtaposition of any advertising around Your Content. In addition, you acknowledge and agree that you will have no right to any revenue or fees we may obtain or receive in connection with Your Content.
1.6 Your Content. In connection with your use of the Evertoon Properties, you shall not Make Available any Content that: (a) you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (b) infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; (c) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (d) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (e) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (g) promotes illegal or harmful activities.
2.1 Application License. Subject to your compliance with the Terms, Evertoon grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
2.2 Media Uploads. Certain features of the Services through the Application require access to and use of your mobile device's media storage applications (e.g., to use a photo in your image gallery). Although you may decide whether or not to use these features, on Android devices you grant us permission to access this feature as part of the installation process. If you later decide to revoke this permission, you can do so by following the standard uninstall process and removing the Application from your device. Alternatively, on iOS devices, you can grant or revoke your consent at any time and prevent us from continuing to access your media storage applications by changing the settings on your device. You hereby authorize the Application to access such components of your mobile device. YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY USING THE SERVICES MEDIA MAY BE SENT FROM YOUR MOBILE DEVICE TO EVERTOON AND YOU ACCEPT SUCH TRANSMISSION AS A CONDITION OF USAGE. All media you upload will be part of Your Content (as defined below).
2.3 Location-Based Information. When you use our Services on a mobile device, we may also collect location information from the GPS functionality on your device. You hereby authorize us and our Services to take such actions and access such data. You can grant or revoke your consent at any time and prevent us from continuing to access your GPS information by changing the settings on your device. You hereby authorize the Application to access such components of your mobile device.
2.4 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that the Terms are between you and Evertoon and not with the App Store. Evertoon, not the App Store, is solely responsible for the Evertoon Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Evertoon Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Evertoon Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
2.5 Open-Source Software. Certain software code incorporated into or distributed with the Application may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this EULA, the Open Source Software is not licensed under Section 2.1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
2.6 Accessing and Download the Application from iTunes. The following applies to any App Store Source Application:
(2.6a) You acknowledge and agree that (i) the Terms are concluded between you and Evertoon only, and not Apple, and (ii) Evertoon, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(2.6b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(2.6c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Evertoon and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Evertoon.
(2.6d) You and Evertoon acknowledge that, as between Evertoon and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(2.6e) You and Evertoon acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Evertoon and Apple, Evertoon, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(2.6f) You and Evertoon acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(2.6g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
2.7 Mobile Communications. If you request to receive updates or other information by mobile phone or text message, you consent to receiving text messages from us and our otherwise communicating with you via your mobile device. We do not charge for this Service. However, your carrier's standard messaging, data and other rates and fees still apply to any messages you send, our confirmations and all subsequent SMS correspondence and/or transmissions. You should check with your carrier to find out what plans are available and how much they cost. All charges are billed by and payable to your mobile service provider. At any time, you may text STOP to cancel or HELP for customer support information. We will not be liable for any delays in the receipt of any SMS messages as delivery is subject to effective transmission from your mobile service operator.
2.8 Use of the Services and Evertoon Properties.
Usage. The Evertoon Properties are protected by copyright laws throughout the world. Subject to the Terms, Evertoon grants you a limited license to reproduce portions of the Evertoon Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Evertoon in a separate license, your right to use any Evertoon Properties is subject to the Terms and is limited to personal, non-commercial purposes only.
2.9 Evertoon Software. Use of any software and associated documentation, other than the Application, that is made available via the Website or the Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Evertoon provide you with any tangible copy of our Software. Evertoon shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Terms and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Terms. Subject to your compliance with the Terms, Evertoon grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Terms. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
2.10 Updates. You understand that the Evertoon Properties are evolving. As a result, Evertoon may require you to accept updates to the Evertoon Properties that you have installed on your computer or mobile device. You acknowledge and agree that Evertoon may update the Evertoon Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Evertoon Properties.
2.11 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Evertoon Properties or any portion of the Evertoon Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Evertoon Properties (including images, text, page layout or form) of Evertoon; (c) you shall not use any metatags or other “hidden text” using Evertoon’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Evertoon Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Evertoon Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Evertoon Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Evertoon Properties. Any future release, update or other addition to the Evertoon Properties shall be subject to the Terms. Evertoon, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Evertoon Properties terminates the licenses granted by Evertoon pursuant to the Terms.
2.12 Third-Party Materials. As a part of the Evertoon Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Evertoon to monitor such materials and that you access these materials at your own risk.
3.1 Registering Your Account. In order to access certain features of the Evertoon Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account with Evertoon (“Account”) or has a valid account on a social networking service (“SNS”) through which he or she connects to the Services and become a Registered User (each such account, a “Third-Party Account”).
3.2 Access Through a SNS. When you access the Services through a SNS, you will link your Account with Third-Party Accounts, by allowing Evertoon to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to grant Evertoon access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Evertoon to pay any fees or making Evertoon subject to any usage limitations imposed by such third-party service providers. By granting Evertoon access to any Third-Party Accounts, you understand that Evertoon may access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Evertoon Properties via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Evertoon Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Evertoon’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Evertoon Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND EVERTOON DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Evertoon makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Evertoon is not responsible for any SNS Content.
3.3 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Evertoon Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Evertoon Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Evertoon immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Evertoon has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Evertoon has the right to suspend or terminate your Account and refuse any and all current or future use of the Evertoon Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Evertoon reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Evertoon Properties if you have been previously removed by Evertoon, or if you have been previously banned from any of the Evertoon Properties.
3.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Evertoon Properties, including but not limited to, a mobile device that is suitable to connect with and use the Evertoon Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Evertoon Properties.
4.1 Evertoon Properties. Except with respect to Your Content and User Content, you agree that Evertoon and its suppliers own all rights, title and interest in the Evertoon Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Evertoon Properties.
4.2 Trademarks. Evertoon and other related graphics, logos, service marks and trade names used on or in connection with the Evertoon Properties or in connection with the Services are the trademarks of Evertoon and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Evertoon Properties are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Evertoon Properties.
4.4 Your Content. Evertoon does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Evertoon Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Evertoon Properties, you hereby expressly permit Evertoon to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.6 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Evertoon.
4.7 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
4.8 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Evertoon through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Evertoon has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Evertoon a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Evertoon Properties.
5. User Conduct.
5.1 Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms):
(5.1a) Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Evertoon Properties (including your Account), or access to or use of the Evertoon Properties;
(5.1b) Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
(5.1c) Use the Evertoon Properties or any part thereof for any commercial purpose, including, but not limited to communicating or facilitating any commercial advertisement or solicitation;
(5.1d) Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); or
(5.1e) Market any goods or services for any business purposes.
5.2 Unauthorized Use or Access. You agree that you will not, under any circumstances:
(5.2a) Interfere or attempt to interfere with the proper functioning of the Evertoon Properties or connect to or use the Evertoon Properties in any way not expressly permitted by the Terms;
(5.2b) Systematically retrieve data or other content from our Evertoon Properties to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise;
(5.2c) Use, display, mirror or frame the Evertoon Properties, or any individual element within the Evertoon Properties, Evertoon’s name, any Evertoon trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Evertoon’s express written consent;
(5.2d) Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the Evertoon Properties or that is in transit from or to the Evertoon Properties, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Evertoon Properties;
(5.2e) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Evertoon Properties, whether through the use of a network analyzer, packet sniffer or other device;
(5.2f) Make any automated use of the Evertoon Properties, or take any action that imposes or may impose (in Evertoon’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Evertoon Properties;
(5.2g) Bypass any robot exclusion headers or other measures Evertoon takes to restrict access to the Evertoon Properties, or use any software, technology or device to send content or messages, scrape, spider or crawl the Evertoon Properties, or harvest or manipulate data;
(5.2h) Use, facilitate, create, or maintain any unauthorized connection to the Evertoon Properties, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Evertoon Properties; or (ii) any connection using programs, tools or software not expressly approved by Evertoon;
(5.2i) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Evertoon Properties, or to obtain any information from the Evertoon Properties;
(5.2j) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Evertoon Properties;
(5.2k) Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(5.2l) Solicit or attempt to solicit personal information from other Users of the Evertoon Properties;
(5.2m) Use the Evertoon Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
(5.2n) Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the Evertoon Properties to send altered, deceptive or false source-identifying information; or
(5.2o) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
5.3 General. In connection with your use of the Evertoon Properties, you shall not:
(5.3a) Harm minors in any way;
(5.3b) Impersonate any person or entity, including, but not limited to, Evertoon personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(5.3c) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(5.3d) Register for more than one Account or register for an Account on behalf of an individual other than yourself;
(5.3e) Stalk or otherwise harass any other User of our Evertoon Properties; or
(5.3f) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
5.4. Investigations. Evertoon may, but is not obligated to, monitor or review the Evertoon Properties and Content at any time. Without limiting the foregoing, Evertoon shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Evertoon does not generally monitor user activity occurring in connection with the Evertoon Properties or Content, if Evertoon becomes aware of any possible violations by you of any provision of the Terms, Evertoon reserves the right to investigate such violations, and Evertoon may, at its sole discretion, immediately terminate your license to use the Evertoon Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you. As a result of any investigation, we may label Your Content in the future as having possibly sensitive content and including a warning message with such Content.
6. Interactions with Other Users.
6.1 User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Evertoon reserves the right, but has no obligation, to intercede in such disputes. You agree that Evertoon will not be responsible for any liability incurred as the result of such interactions.
6.2 Your Content. Evertoon is not responsible for and does not control how other Users use Your Content once exported or downloaded from the Evertoon Properties. Any such use of Your Content by such other Users (including any modification or derivative works thereof) is not subject to our Terms. Evertoon has no way to review or monitor, and does not approve, endorse or make any representations or warranties with respect to the use of Your Content. You provide Your Content at your own risk.
6.3 Content Provided by Other Users. The Evertoon Properties may contain User Content provided by other Users. Evertoon is not responsible for and does not control User Content. Evertoon has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk, including Users you authorize as collaborators for Your Content. We may delete User Content in our discretion.
7. Third-Party Services. The Evertoon Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the Evertoon Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of Evertoon. Evertoon is not responsible for any Third-Party Websites & Ads. Evertoon provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8. Fees. We do not currently charge fees for the use of any component of the Evertoon Properties or any features thereof, but we reserve the right to do so in the future.
9. Indemnification. You agree to indemnify and hold Evertoon, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Evertoon Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Evertoon Properties or any other User’s Content; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Evertoon reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Evertoon in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Evertoon Properties.
10. Disclaimer of Warranties.
10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE EVERTOON PROPERTIES IS AT YOUR SOLE RISK, AND THE EVERTOON PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. EVERTOON PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(10.1a) EVERTOON PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE EVERTOON PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE EVERTOON PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE EVERTOON PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE EVERTOON PROPERTIES WILL BE CORRECTED.
(10.1b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE EVERTOON PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE EVERTOON PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(10.1c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. EVERTOON MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(10.1d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM EVERTOON OR THROUGH THE EVERTOON PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
10.2 From time to time, Evertoon may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Evertoon’s sole discretion. The provisions of this section apply with full force to such features or tools.
10.3 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT EVERTOON PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD EVERTOON PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.4 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE EVERTOON PROPERTIES. YOU UNDERSTAND THAT EVERTOON DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE EVERTOON PROPERTIES.
11. Limitation of Liability.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL EVERTOON PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE EVERTOON PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT EVERTOON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE EVERTOON PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE EVERTOON PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE EVERTOON PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE EVERTOON PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE EVERTOON PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL EVERTOON PARTIES BE LIABLE TO YOU FOR MORE THAN TWENTY FIVE DOLLARS ($25).
11.3 User Content. EVERTOON PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
11.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EVERTOON AND YOU.
11.5 EXCLUSION OF DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12. Procedure for Making Claims of Copyright Infringement. It is Evertoon’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Evertoon by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Evertoon Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Evertoon Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Evertoon’s Copyright Agent for notice of claims of copyright infringement is as follows:
480 2nd St, #202 San Francisco, CA 94107 ATTN: DMCA AGENT Fax: +1-415-484-7867 Email: firstname.lastname@example.org
13. Term and Termination.
13.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Evertoon Properties, unless terminated earlier in accordance with the Terms.
13.2 Prior Use. Notwithstanding the foregoing, if you used the Evertoon Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Evertoon Properties (whichever is earlier) and will remain in full force and effect while you use the Evertoon Properties, unless earlier terminated in accordance with the Terms.
13.3 Termination of Services by Evertoon. Evertoon has the right to modify, suspend or terminate any Services provided to you at any time without or without reason. You agree that all terminations for cause shall be made in Evertoon’s sole discretion.
13.4 Termination of Services by You. If you want to terminate the Services provided by Evertoon, you may do so by notifying Evertoon at any time. Your notice should be sent, in writing, to Evertoon's address set forth below.
13.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Evertoon will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14.1 Violations. If Evertoon becomes aware of any possible violations by you of the Terms, Evertoon reserves the right to investigate such violations. If, as a result of the investigation, Evertoon believes that criminal activity has occurred, Evertoon reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Evertoon is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Evertoon Properties, including Your Content, in Evertoon’s possession in connection with your use of the Evertoon Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Evertoon, its Users or the public, and all enforcement or other government officials, as Evertoon in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that Evertoon determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Evertoon Properties, Evertoon reserves the right to:
(14.2a) Warn you via e-mail (to any e-mail address you have provided to Evertoon) that you have violated the Terms;
(14.2b) Delete any of Your Content provided by you or your agent(s) to the Evertoon Properties;
(14.2c) Discontinue your registration(s) with the any of the Evertoon Properties, including any Services or any Evertoon community;
(14.2d) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(14.2e) Pursue any other action which Evertoon deems to be appropriate.
14.3 No Subsequent Registration. If your registration(s) with or ability to access the Evertoon Properties, or any other Evertoon community is discontinued by Evertoon due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Evertoon Properties or any Evertoon community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Evertoon Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Evertoon reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
15. General Provisions.
15.1 Electronic Communications. The communications between you and Evertoon use electronic means, whether you visit the Evertoon Properties or send Evertoon e-mails, or whether Evertoon posts notices on the Evertoon Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Evertoon in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Evertoon provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
15.2 Release. You hereby release Evertoon Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Evertoon Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Evertoon Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
15.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Evertoon’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.4 Force Majeure. Evertoon shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.5 Compliance. If you believe that Evertoon has not adhered to the Terms, please contact Evertoon by emailing us at help AT evertoon.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
15.6 Limitations Period. YOU AND EVERTOON AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE EVERTOON PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15.7 Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with Evertoon and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(15.7a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Evertoon that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Evertoon, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(15.7b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Evertoon should be sent to: help AT evertoon.com. After the Notice is received, you and Evertoon may attempt to resolve the claim or dispute informally. If you and Evertoon do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(15.7c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(15.7d) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
(15.7e) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Evertoon, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Evertoon.
(15.7f) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Evertoon in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND EVERTOON WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(15.7g) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(15.7h) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
(15.7i) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Arbitration Agreement.
(15.7j) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Evertoon.
(15.7k) Small Claims Court. Notwithstanding the foregoing, either you or Evertoon may bring an individual action in small claims court.
(15.7l) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(15.7m) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in California, for such purpose.
15.8 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
15.9 Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
15.10 Notice. Where Evertoon requires that you provide an e-mail address, you are responsible for providing Evertoon with your most current e-mail address. In the event that the last e-mail address you provided to Evertoon is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Evertoon’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Evertoon at the following address: help AT evertoon.com. Such notice shall be deemed given when received by Evertoon by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.11 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.12 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
15.13 Export Control. You may not use, export, import, or transfer the Evertoon Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Evertoon Properties, and any other applicable laws. In particular, but without limitation, the Evertoon Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Evertoon Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Evertoon Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Evertoon are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Evertoon products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
15.14 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
15.15 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
16. International Provisions. The Evertoon Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Evertoon intends to announce such Services or Content in your country. The Evertoon Properties are controlled and offered by Evertoon from its facilities in the United States of America. Evertoon makes no representations that the Evertoon Properties are appropriate or available for use in other locations. Those who access or use the Evertoon Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
16.1 United Kingdom. A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
16.2 Germany. Notwithstanding anything to the contrary in Section 13, Evertoon is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).