TERMS OF SERVICE
and, if Customer is subscribed to the Managed Cloud Backup service, the Managed Backup Terms of Service, and any other Agreements which reference this Agreement.
Under the European Union General Data Protection Regulation (GDPR), our Data Processing Agreement is also part of the Agreement.
The Incorporated Agreements are incorporated into this Agreement by reference. You are responsible for including these provisions in your agreements with your customers and users (End Users), and for all acts of your End Users under this Agreement.
The Effective Date of this Agreement is the date indicated in the account activation order form (Order Form). The Order Form is completed by Customer online when ordering Services (as that term is defined in this Agreement). The Term of this Agreement is set out on the web page describing the Services (Term). Customer consents to be bound by this Agreement by submitting the Order Form. Customer consents to any revisions to this Agreement or Incorporated Agreements by continuing to use the Services.
1 - Services
Everleap's web site sets out the technical specifications, term and pricing for the services it provides to Customer. Throughout this Agreement and Incorporated Agreements these are referred to as "Services." Certain aspects of the Services may be provided by third parties. If it is necessary to identify these aspects separately in this Agreement, they are referred to as "Third Party Services."
Customer's use of the Services must not exceed that of similarly situated customers (Fair Use). If Customer's use of the Services exceeds the Fair Use threshold, Everleap will notify Customer by email. Customer will have 2 days from the date on which Customer exceeds Fair Use to modify its use of the Services so as not to exceed Fair Use. If Customer fails to take this action, Everleap may assess Customer additional fees based on the costs associated with Customer's acts. Everleap may also terminate this Agreement, or suspend the Services, if by exceeding Fair Use Customer endangers Everleap's network or its ability to provide Services to other customers. To the extent that Customer's use of the Services exceeds the Fair Use threshold, and this use endangers Everleap's ability to provide services to other customer, or its network in general, Everleap may take action to mitigate this disruption without prior notice to Customer.
The following provisions govern certain Services:
1.1 - Domain Name Registration
In addition to the terms and conditions of this Agreement, all domain name registrations Customers register through us are subject to, and our Customers are bound by, the terms and conditions applied by any registrar Everleap may use to register domains (Registrar). Customer is bound by the Registrar's terms and conditions for each domain name Customer applies to have registered. The terms and conditions, as supplied by the Registrar, is here: Domain Registration Agreement.
Internet Corporation for Assigned Names and Numbers (ICANN) posts the Uniform Domain Name Dispute Resolution Policy at https://www.icann.org/dndr/udrp/policy.htm
as well as the Registrant's Benefits and Responsibilities Under the 2009 Registrar Accreditation Agreement at https://www.icann.org/en/resources/registrars/registrant-rights/benefits.
For reference, ICANN also publishes Registrant education materials at https://www.icann.org/en/resources/registrars/registrant-rights/educational.
Neither Everleap, nor the Registrar, warrants or guarantees that the domain name Customer applies for will be registered, or will be capable of registration, even if a "who is" search indicates that the domain name is available. It is important that Customer take no action related to a domain name that it has applied for until Customer has received and reviewed the Registrar's receipt and confirmed that the domain name is actually registered.
Everleap accepts no responsibility for Customer's use of a domain name. Any and all disputes related to a domain name, between Customer, on the one hand, and the Registrar or third parties on the other, are the responsibility of the Customer. Everleap will not participate in such a dispute and is not obligated to provide assistance to Customer in the event of such a dispute. Everleap reserves the right, at Everleap's sole and exclusive discretion, to either suspend or cancel the domain name.
It is Customer's obligation to ensure that Everleap is provided with full and complete information to register a domain name and that the information is properly updated and current.
As a courtesy to Customer and without prior notice, Everleap will attempt to renew Customer's domain name 5 days before it is set to expire.
If a renewal is successful, Customer's account will be charged for this renewal. Everleap's auto-renewal system will only renew domains for one additional year.
Everleap provides control panel tools to disable domain auto-renewal.
You can also proactively renew your domain name(s) through the Everleap control panel at any time and you have the ability to renew domains for multiple years.
Everleap assumes no responsibility for domain name renewals. Customer agrees to independently monitor the expiration date of their domain names.
The most current domain name registration fee is posted on the Everleap web site at https://www.everleap.com/cloud-hosting/services/domain-names/. Domain name registration fees are not refundable. If you terminate this Agreement prior to the expiration of your domain name registration, we will provide you with tools to manage your domain. We have no liability should you fail to use these tools to prevent the expiration of your domain name.
Customer may only register domain names for its own account. Customer may not register domain names for End Users or third parties.
Should the customer lose domain name rights due to non-payment, Everleap will charge a $40 fee to recover the domain name rights. Customer understands that when a domain name expires, the domain name enters a grace period, then redemption period, then the deletion period. If the domain is in the grace period and the customer desires to renew the domain, Everleap will charge a $40 fee for the domain renewal. If the domain is in the redemption period and the customer desires to renew the domain, Everleap will charge a $125 fee for the domain renewal. If the domain is in the deletion period, Everleap can no longer renew the domain. To enquire about or to renew an expired domain, the customer can contact our Billing department.
1.2 - API's
APIs may be introduced and should be considered experimental, may change, and/or may be discontinued without any notice. Everleap may limit availability of certain aspects of an API, and this may cause the API not to work, or to work in ways neither anticipated nor used by Customer. Everleap may block certain IP addresses from using or accessing the APIs.
Everleap may charge, or change, fees for the APIs. Customer may cease using the APIs if Everleap charges or changes fees for the APIs, but Customer may not terminate this Agreement based on that fact.
1.3 - Configuration
The Services, and any hardware, are configured by Everleap. Customer is solely responsible for determining whether this configuration is suitable for Customer's intended use.
1.4 - Back Up
Everleap provides data backup to supplement Customer's own disaster recovery and back up programs (Back Up). Back Up Services are not a substitute for Customer's own efforts. Customer understands that Back Up Services may be incomplete or ineffective, and that restoring data using the Back Up Services may not recreate the configuration of Customer's data as it existed prior to restoration
1.5 - IP Addresses
Everleap provides Customers with one dynamic IP address (Dynamic IP). Dynamic IPs may be changed by Everleap at any time.
Customer may purchase IP-based SSL service and get a static IP address from Everleap assigned to their site (Static IP) for use with the IP-based SSL service.
Everleap will use reasonable efforts to provide advance notice to Customer prior to any change of a Static IP. Neither a Dynamic IP nor a Static IP provided by Everleap may be transferred or assigned by Customer. Both Dynamic IPs and Static IPs are governed by the terms and conditions imposed on Everleap by ARIN or RIPE. Customer may not terminate this Agreement should a change of either ARIN's or RIPE's rules and regulations alter this provision of the Agreement.
2 - 60-Day Money Back Guarantee
The Service carries a 60-day satisfaction guarantee (Guarantee). The Guarantee applies to your initial order, and the addition of any subsequent Services. It excludes Third Party Services such as domain names and one time fees. The Guarantee does not apply to renewal terms. To cancel the qualifying Service and receive a refund, Customer must contact Everleap within 60 days from the Effective Date for the particular Service. The Guarantee only applies to the first 60 days of an individual Service. For example, if Customer agrees to purchase a Service on day 1 and orders an additional Service on day 45, on day 75 Customer may only take advantage of the Guarantee for the second Service, and remains responsible for the first ordered Service, since the Guarantee period for the first Service has expired. The Guarantee excludes domain names and any other third party Services resold by Everleap.
3 - Fraud Prevention and Security Screening
Everleap uses multiple technologies to screen orders for fraud. Each request for new or additional Services is subject to fraud screening. Everleap is not obligated to provide the Services to Customer unless and until the information Customer provides to Everleap satisfies Everleap's fraud prevention controls. Should Customer fail to satisfy Everleap's fraud controls, Customer may remain responsible for Third Party Services ordered. Everleap is not responsible, and Customer agrees to hold Everleap harmless from, any liability or damage that Customer or any third party may sustain, should Customer fail to meet the criteria of the fraud prevention controls.
Everleap uses industry standard methods to secure the Services and its network. Customer is required to cooperate with Everleap's efforts to maintain this security. Customer is also required to report security deficiencies, viruses, and other network issues to Everleap. These incidents may be reported to Everleap at: email@example.com
If, in our sole discretion, we determine that our Services have been compromised by a security breach (Breach), we shall provide you with notice of the Breach within 24 hours after such determination (Breach Notification). It may be necessary to suspend the Services to cure, mitigate and investigate the Breach. We shall not be liable for any loss Customer may incur as a result of such suspension. The information contained in the Breach Notification may be of a preliminary and unconfirmed nature, and you rely on it at your own risk. All information you receive in connection with the Breach, including the Breach Notification, is confidential. We both agree to cooperate in investigating the Breach, but if our cooperation requires an inordinate expenditure of time and resources or we are asked to participate in a government investigation, we may be required to bill you at our standard consulting fees.
4 - Ownership
Customer is required to provide the contact information set out in the Order Form and in Everleap's control panel (Customer Information). Customer warrants that the Customer Information is accurate and up to date. Everleap will use the Customer Information to determine ownership of the Services. If there is a dispute concerning ownership of the Services, Everleap may freeze Customer's account until such time as the dispute is resolved by the parties.
If aspects of the Services are administered by Customer on behalf of another person or entity, Customer warrants that it will administer these Services in good faith. Customer further agrees to indemnify Everleap against all losses and liabilities sustained by Everleap should Customer administer the account in ways that are adverse to End Users and result in any claim against Everleap.
5 - Fees
The Fees for a particular Service are set out on the Order Form of each individual Service (Fees). Fees are guaranteed for the current Term. Should Everleap change the Fees during the Term, such changes will not take effect until the beginning of the next Renewal Term. From time to time, Everleap may offer special promotions with regard to the Fees. These promotions are specifically targeted, do not apply to previously ordered Services, and, depending upon their terms, may not apply to all Customers or Services introduced or added by customer in the future.
Fees will be charged to the credit card Customer sets out in the Customer Information. Fees are due as set out in the Order Form. It is Customer's responsibility to ensure that its credit card is up to date and will not be declined. If Everleap does not receive undisputed Fees when charged (Payment Default), Customer's entire account will be suspended. During the time Customer's account is suspended because of a Payment Default, various features of the Services may not be available. In particular, Customer's domain name, if registered through Everleap, will be locked, and may not be transferred away from the Registrar. Everleap is not responsible for any damages caused by an account suspended due to a Payment Default. Should Customer fail to cure a Payment Default within 10 days, public access to Services will be suspended. Should Customer fail to cure the Payment Default after 25 consecutive days this Agreement will be terminated, and all Services, including those for which Customer is not in Payment Default, will be terminated. Customer is responsible for all costs incurred by Everleap in its efforts to collect amounts due. These costs include, but are not limited to, collection fees, reasonable attorney's fees, and interest in the amount of 1.5% per month, or the highest amount Everleap may legally charge.
Everleap may participate in Account Updater Services supported by your payment card provider. As part of this service, your payment card provider may notify Everleap of any changes to your payment card number or expiration date. In accordance with the payment card provider requirements, if we are notified of an update, Everleap will automatically update your payment information on your behalf.
Everleap makes no guarantees that we will request or receive any updated payment card information. You acknowledge and agree that it is your sole responsibility to maintain current and valid account and payment information with Everleap.
Any disputes about Fees due must be presented in writing to Everleap at firstname.lastname@example.org prior to the date the Fee is due (Bill Dispute Notice). The Bill Dispute Notice must contain sufficient detail to allow Everleap to identify the basis and reasons for the dispute. If the Bill Dispute Notice is received by Everleap after the date a Fee is due, Customer has waived the right to dispute the Fee. Everleap will use reasonable efforts to investigate the dispute within 30 days of its actual receipt of the Bill Dispute Notice. Everleap will respond to the Bill Dispute Notice in writing. If Everleap finds that a particular Fee was charged in error, Everleap will credit Customer's account within 30 days. If Everleap disagrees with the Bill Dispute Notice, the parties agree that for a period of 60 days, they will work in good faith to resolve the dispute. If the parties fail to agree to resolve the dispute, the parties are entitled to exercise their rights under this Agreement or at law. During the time following Everleap's actual receipt of a Bill Dispute Notice, all undisputed Fees for Services must be paid when due. Customer agrees to waive its right to withhold Fees during a bill dispute, and/or to set off other Fees due against those in dispute.
6 - Term
The Term for a particular Service is set out on the Order Form. Upon expiration of the Term, the Order will renew for the period of the prior Term (Renewal Term), and subsequently renew at the end of each Renewal Term unless terminated as provided in this Agreement.
7 - Termination
Everleap may terminate this Agreement, or an aspect of the Services covered by this Agreement, by providing the Customer with written notice of termination. Customer may terminate this Agreement, or an aspect of the Services by this Agreement, by logging into their Control Panel and/or using the Help Center to submit cancellation request details to the Everleap Billing Department. This notice must be delivered at least 7 days prior to the expiration of the Term.
Either Customer or Everleap may terminate this Agreement, or an aspect of the Services covered by this Agreement, by providing the other with written notice of material breach. The party against whom material breach is alleged shall have 10 calendar days to correct the material breach. However, if the material breach is incapable of cure that aspect of the Services affected by the material breach, may be terminated immediately. Our decision to stop offering any Third Party Services shall not be considered a material breach.
Everleap may suspend or terminate this Agreement, or particular aspects of the Services covered by this Agreement, at Everleap's sole and exclusive discretion, if:
7.1 Everleap receives a complaint that Customer has violated this Agreement, or any Incorporated Agreements, and Customer has not complied with Everleap's recommended course of action;
7.2 a Third Party ceases making aspects of the Services available to Everleap, or continuing to provide the Services becomes commercially unreasonable; and/or
7.3 a beta Program ends.
8 - Warranties
8.1 - Mutual Warranties
Customer and Everleap each agree that they have the requisite authority to enter into this Agreement, and that neither is prohibited from entering into it.
8.2 - Everleap Warranties
Everleap warrants that it will use reasonable efforts to deliver the Services to Customer as set out on the web page describing the Services upon the Effective Date.
8.3 - Customer Warranties
Customer represents and warrant to Everleap that: (i) Customer has the experience and knowledge necessary to use the Services; (ii) Customer understands and appreciates the risks inherent to Customer and Customer's business that come from accessing the Internet; (iii) Customer will provide Everleap with material that may be implemented by Everleap to provide the Services without extra effort on Everleap's part; (iv) Customer has sufficient knowledge about administering, designing and operating the functions facilitated by the Services to take advantage of the Services; (v) in entering into this Agreement, and performing the obligations set out in it, Customer will not violate any applicable laws and regulations; (vi) Customer owns, or has a license to use, all materials transmitted using the Services, or placed on Everleap's servers; and (vii) Customer will pass through the terms of Everleap's Acceptable Use Policy to End Users, and will be bound to End Users by a contract that is no less restrictive than this Agreement.
9 - Disclaimers
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS, AND WITH ALL FAULTS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 8.2, EVERLEAP HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES, EITHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND TITLE. EVERLEAP DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ADVICE GIVEN IN A COMMUNITY FORUM IS RELIABLE, ACCURATE OR WILL NOT DAMAGE CUSTOMER. EVERLEAP IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER, OR STORED BY CUSTOMER OR AN END USER VIA THE SERVICES PROVIDED BY EVERLEAP. EVERLEAP SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY EVERLEAP. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO EVERLEAP SHALL BE PASSED THROUGH TO CUSTOMER, NOR SHALL CUSTOMER CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES. SOME STATES DO NOT ALLOW EVERLEAP TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO CUSTOMER, CUSTOMER'S WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE FOR THAT INDIVIDUAL ASPECT OF THE PARTICULAR SERVICE.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION CUSTOMER MAY HAVE RECEIVED FROM EVERLEAP OR ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS, OR AFFILIATES. CUSTOMER MAY NOT RELY ON SUCH INFORMATION.
10 - Limitation of Liability
IN NO EVENT WILL EVERLEAP'S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY EVERLEAP FROM CUSTOMER FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM "EVERLEAP" SHALL BE INTERPRETED TO INCLUDE EVERLEAP'S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH EVERLEAP.
CUSTOMER AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WILL NOT, UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD EVERLEAP OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY CUSTOMER, ANY OF CUSTOMER'S END USERS, OR ANY OTHER THIRD PARTY. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, AND APPLY EVEN IF EVERLEAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; CUSTOMER AGREES THAT IN THOSE JURISDICTIONS, EVERLEAP'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
11 - Indemnification
Everleap shall indemnify and hold Customer harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against Customer so far as it is based on a claim that a Service infringes any issued U.S. patent. This indemnification provision is expressly limited to parts of the Service that are fully owned by Everleap. It does not extend to third party products or services, including Third Party Services, even if incorporated into the Service. This paragraph will be conditioned on Customer notifying Everleap promptly in writing of the claim and giving Everleap full authority, information, and assistance for the defense and settlement of that claim.
Customer shall have the right to participate in the defense of the claim at Customer's expense. If such claim has occurred, or in Everleap's opinion is likely to occur, Customer agrees to permit Everleap, at its option and expense, either to: (i) procure for Customer the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate Everleap's obligations (and Customer's rights) under this Agreement with regard to such Service and refund to Customer the price originally paid by Customer to Everleap for the Service, or the Fee actually received by Everleap from Customer for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based.
Customer agrees to indemnify, defend and hold harmless Everleap and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) Customer's use of the Services or an End User or visitor's use of the Services through Customer; (ii) any violation by Customer, an End User, or visitor to Customer's site, of any of Everleap's policies; (iii) any breach of any of Customer's representations, warranties or covenants contained in this TOS; (iv) any acts or omissions by Customer; and/or (v) any posts by Customer in the Community Forum. The terms of this section shall survive any termination of this Agreement.
12 - Intellectual Property
12.1 - Everleap's Intellectual Property
Everleap, or its third party vendors, retains ownership of all intellectual property rights in the Services. Everleap grants to Customer a non-exclusive, non-transferable, worldwide, royalty-free license to use the intellectual property provided by Everleap solely to access and use the Services. This license terminates on the expiration or termination of this Agreement. Except for the license rights set out herein, this license does not grant any additional rights to Customer. All right, title and interest in Everleap's intellectual property, or that of its third party vendors, shall remain with Everleap or its licensors. Customer is not permitted to circumvent any devices designed to protect Everleap's, or its licensor's, ownership interests in the intellectual property provided to Customer. In addition, Customer may not reverse engineer this intellectual property.
All information you provide to Everleap in the course of our support and administration of the Services shall be owned by Everleap. You waive and assign any right, title and interest you may have in the intellectual property contained in this information and shall cooperate with us in securing our rights.
Any license provided to Customer is provided with "RESTRICTED RIGHTS" applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, duplication, or disclosure by the United States Government as set forth in this Agreement and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
12.2 - Customer's Intellectual Property
Customer grants to Everleap, and, if required, Everleap's third party vendors, a non-exclusive, non-transferable, worldwide, royalty-free license to use Customer's intellectual property (or that of its third party vendors and/or End Users) for the limited purpose of providing the Services to Customer. This license terminates upon termination or expiration of this Agreement. Except for the license rights granted herein, this license does not grant any additional rights to Everleap. All right, title and interest in Customer's intellectual property, or that of its third party vendors, shall remain with Customer or its licensors. Everleap is not permitted to circumvent any code designed to protect Customer's, or its licensor's, ownership interests in the intellectual property provided to Everleap. In addition, Everleap may not reverse engineer this intellectual property.
12.3 - Licenses Customer is Required to Have
Other than as set out in paragraph 12.1 above, Customer is solely responsible for obtaining all licenses and other intellectual property rights necessary to use the Services (Third Party Licenses). Upon written request, Customer agrees to provide Everleap with reasonable assurances that it has received the Third Party Licenses, including, but not limited to, written copies of the Third Party License.
13 - Miscellaneous
13.1 - Notices will be sent to Customer at the address in the Customer Information.
Notices regarding this Agreement and other Everleap policies should be directed to:
Attention: Everleap Legal Notices
417 East Huntington Drive
Monrovia, CA 91016
13.2 - Force Majeure
Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, failures of beta products, or other circumstances beyond its reasonable control. Other than failures of beta products, the obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. Other than failures of beta products, the party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than 10 days from the beginning of the event. For beta products, Everleap shall have no liability or notice requirement whatsoever.
13.3 - Choice of Law, Jurisdiction, Venue and Statute of Limitations
The parties agree that all disputes shall be brought before the U.S. District Court for the District of Los Angeles located in Los Angeles, California (District Court). The parties agree that this court shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this Agreement or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of California, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
13.4 - Notice to California Customers
Please be advised that, as may be applicable to you under California law, if Customer is unsatisfied with the manner in which Everleap responds to a complaint regarding the Services, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
13.5 - No Waiver.
No waiver of rights under this Agreement, or any Everleap policy, or other agreement between Customer and Everleap, shall constitute a subsequent waiver of this or any other right under this Agreement.
13.6 - Assignment
This Agreement may be assigned by Everleap. It may not be assigned by Customer. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties
13.7 - Severability
In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.
13.8 - No Agency
This Agreement does not create any agency, partnership, joint venture, or franchise relationship between the parties. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. The parties are independent contractors.
13.9 - Export Restrictions
You agree to comply with all applicable international and national laws that apply to the Services, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
13.10 - Survival
The provisions of paragraphs 1, 9, 10, 11, 13.1, 13.3, 13.5 – 13.7, and 13.10 will survive the expiration of this Agreement or its termination for any reason.
Updated: April 21, 2022