These Terms of Use (“Terms”) describe the terms under which Everstage Inc ( “Everstage”, “We”, “Our” “Us”) provides an individual or entity, who purchases our Service(s) and/or creates an Account with Us (hereinafter also referred to as (“You”, “Your”, “Yourself”) and their Users, access to and use of Our Service(s). By accessing and/or using Our Service, a) You agree to be bound by these Terms. b) You warrant to us that You have the legal capacity to enter into this agreement c) That, in the event You are entering into these Terms on behalf of any entity/company or its group, You possess the requisite authority to bind such entities, company or its groups to these Terms. If You do not agree to these Terms, You should immediately cease using our Service(s).The Service(s) may not be accessed for the purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Everstage’s competitors are prohibited from accessing the Service(s), except with Everstage’s prior written consent.
You and Us will be individually referred to as “Party” and collectively as “Parties”.
1. YOUR RIGHTS
1.1. Subject to Your compliance with these Terms and solely during the Subscription Term, You shall have the limited, non-exclusive, revocable right to access and use the Service(s) for your internal business purposes in accordance with these Terms and the subscription plan as specifically stated in Our Website or in relevant Order Form.
2. YOUR RESPONSIBILITIES
2.1. Your Account: Your access and use of the Service(s) is restricted to the specified number of individual Users as specified in the relevant Order Form, if any, executed between Us and Yourself. Each User shall be identified using unique login information such as usernames and passwords (“User Login”) and such User Login shall be used only by one individual.
2.2. Acceptable Use: You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, disassemble, reverse engineer, decompile or otherwise commercially exploit or make the Service(s) available to any third party, other than Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) modify, adapt, or hack the Service(s) or otherwise attempt to gain or gain unauthorized access to the Service(s) or related systems or networks; (c) use the Service(s) to store or transmit Sensitive Personal Information; (d) use the Service(s) to store or transmit Customer Data in violation of applicable laws and regulations, including but not limited to violation of any person’s privacy rights, export control laws/regulations; (e) use the Service(s) to store or transmit any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (f) use the Service(s) to knowingly post, transmit, upload, link to, send or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software; (g) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (through use of manual or automated means);
2.3. You represent and warrant to Us that You own or have the necessary rights to transmit the Customer Data to Us and that doing so does not violate any applicable law, proprietary or privacy rights.
2.4. Prohibited Activity. We may inform You along with a reasonable justification, that a specified activity or purpose is prohibited due to a threat to the security, integrity, or availability of the Service(s), in that case, You will ensure that You immediately cease the use of the Service(s) for such prohibited activity or purpose. If You continue to undertake such prohibited activity, You shall be liable for the same and We reserve the right to immediately terminate Your Account without any compensation or liability.
3. SERVICE(S)
3.1. You may request and We at Our discretion may provide a demo of Our Service(s) by creating accounts for a limited period of time (“Demo Period”). The Demo Period shall be subject to these Terms and any additional terms that We may specify. We, in our sole discretion, shall have the right to terminate the Service(s) and Your right to use the Service(s) at any time during the Demo Period and for any reason, without being liable to You.
3.2. Any enhancements, new features or updates (“Updates”) to the Service(s) are also subject to these Terms and We reserve the right to deploy Updates at any time.
3.3. The Service(s) may temporarily be unavailable due to scheduled downtime for upgrades and maintenance in which case We shall use commercially reasonable endeavours to notify You in advance.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Except for the rights granted to You under clause 1, all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Service(s), including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how (collectively, “Intellectual Property Rights”) shall belong to and remain exclusively with Us, Our Affiliates and licensors.
4.2. You own the rights to the Customer Data that You provide to Us. We do not claim ownership over such Customer Data. We shall have a right and license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback You choose to provide, including for the purpose of improving and enhancing the Service(s), provided that You are not referenced in such use. .
4.3. All rights not expressly provided to You herein are reserved.
5. THIRD PARTY SERVICES
5.1. You acknowledge and agree that Your use of Third-party Services will be subject to the terms and conditions and privacy policies of such third-party and that We shall not be liable for Your enablement, access or use of such Third-party Services, including Your data processed by such third party. You should contact that Third- party service provider for any issues arising in connection with use of such Third-party Service.
5.2 Restriction on Our Access to Third-party Services Enabled by You: We shall have access only to such Third-party Services that You choose to integrate with the Service(s) and only to the extent authorized/permitted by You. Except to the extent expressly authorized by You and for the purpose of providing You the Service(s), We agree not to (a) attempt to gain or gain unauthorized access to Your account with such Third-party Service(s).
6. CHARGES AND PAYMENT
6.1. Subscription Charges: All charges associated with Your Account shall be based on the plan You have subscribed at the prices set forth in an applicable Order Form (together the “Subscription Charges”). The Subscription Charges are due in full and payable in advance in accordance with clause 6.2, when You subscribe to the Service(s). Unless otherwise specified in these Terms, all Subscription Charges are non-refundable.
6.2. Payment: You hereby authorize Us or Our authorized agents, as applicable, to bill You upon Your subscription to the Services (and any renewal thereof). Unless otherwise stated in an Order Form, Your payment is due within thirty (30) days of our invoice date.
6.3. Late Payments/Non-payment of Subscription Charges: We will notify You in the event We do not receive payment towards Subscription Charges within the due date (“Reminder Notice”). We must receive payments within a maximum of ten (10) days from the date of Reminder Notice. If We do not receive payment within the foregoing time period, in addition to our right to other remedies available under law, We may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) at Our sole discretion suspend Your access to and use of the Services until We receive Your payment towards the Subscription Charges as specified herein and/or; (iii) terminate Your Account.
6.4. Applicable Taxes: Unless otherwise stated in the Order Form, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).
6.5. Upgrades and Downgrades: You may upgrade Your Account at any time during the Subscription Term (or any renewals thereof) via an executed Order Form. However, You shall not have the right to downgrade Your Account during any ongoing Subscription Term. You may downgrade Your Account only at the end of any Subscription Term in the manner prescribed under clause 7.1. All downgrades in accordance with this clause will be applicable only from the renewed term, and not for the ongoing Subscription Term.
7. TERM, TERMINATION AND SUSPENSION
7.1. Term and Renewal: The Subscription Term shall be set forth in a relevant Order Form. Your subscription to the Service(s) will renew for a Subscription Term equivalent in length to the expiring Subscription Term at the then prevailing Subscription Charges, unless You give a written notice of non-renewal or downgrade at least thirty (30) days’ before the expiration of the relevant Subscription Term. We reserve the right to increase the Subscription Charges at the beginning of each Subscription Term including any auto-renewed term.
7.2. Termination by You: You may terminate one or more of your Account(s) in the event We materially breach these Terms, provided that You shall provide an advance notice of such breach and afford Us not less than thirty (30) days to cure such breach. In case of such termination, We shall, pro-rata, refund the Subscription Charges for the remainder of the Subscription Term.
7.3. Suspension and Termination by Us: We may suspend Your access to and use of Your Account or the Service(s) if You are in violation of these Terms. We will notify You if your activities violate these Terms and, at Our sole discretion, provide You with a period of fifteen (15) days (“Cure Period”) to cure or cease such activities. If You fail to cure or cease such activities within said Cure Period or if We believe that such breaches cannot be cured, Your Account shall be terminated. We may also terminate a Demo Period in accordance with clause 3.1. Further, We also reserve the right to terminate Your Account at any time by written notice due to business reasons which shall include discontinuation of the Services.
7.4. Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate these Terms with notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies) which are not dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property.
7.5. Effect of Terminating Your Account: Following the termination of Your Account either by Yourself or by Us, Your access and use of the Services shall cease. We retain all Customer Data in our possession for sixty [60] days from the date of effective termination (“Data Retention Period”). Beyond the Data Retention Period, We reserve the right to delete all the Customer Data in our possession.
8. CONFIDENTIALITY; DATA PRIVACY AND SECURITY
8.1. If You choose, or are provided with, a user identification code, login, password or any other piece of information as part of Our security procedures, You must treat such information as confidential. You must not disclose it to any third party. We shall have the right to disable any user identification code or password, whether chosen by You or allocated by Us, at any time, if in Our reasonable opinion, You have failed to comply with any of the provisions of these Terms. We will not be responsible for any activities, including any attempted or actual access or loss of data occurring in Your Account as a result of your non-compliance of obligations under this clause.
8.2. Each of the Parties will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information solely to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this clause shall supersede any non-disclosure agreement by and between the Parties entered prior to these Terms that would purport to address the confidentiality of Customer Data and such agreement shall have no further force or effect with respect to Customer Data.
8.3. We shall use appropriate technical and organizational measures to protect the Customer Data. The measures used are designed to provide a level of security appropriate to the risk of Processing the Customer Data. We shall, without undue delay, notify You of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Customer Data processed by Us.
8.4. You understand and acknowledge that, in connection with the use of Services by You, Your Users, and/or End-Users, We shall Process any Personal Data forming part of the Customer Data only on Your behalf and as a data processor in accordance with and subject to these Terms and Our Data Processing Agreement if any signed between the Parties.
8.5. Where We process personal data as a controller, the collection, use, and processing of such personal data shall be subject to and in accordance with Our privacy policy available at https://www.everstage.com/privacy.
8.6. You acknowledge that We shall Process Customer Data only to provide, maintain and improve the Services, prevent or address any technical problems, or at Your request in connection with support requests and in accordance with these Terms. We shall not Process Customer Data for any purposes other than what is mentioned in these Terms.
8.7. You warrant that (a) You have established notices or policies for and ensure compliance with all applicable data protection laws relating to the collection and transmission of Personal Data forming part of Customer Data; and (b) You have obtained and maintain necessary authorizations, approvals, and permissions for Us to Process such Personal Data to provide the Services. You are responsible for the loss, damage, destruction, and unlawful transmission of Personal Data in violation of this clause and You acknowledge and agree that We shall have no liability for claims arising from Your failure to comply with this clause.
8.8. You acknowledge and agree that We may access or disclose information about You, Your Account, and Users, including Customer Data in order to (a) comply with the law or respond to lawful requests or legal processes; or (b)enforce Our rights under these Terms or applicable law and/or in defence of any legal claims.
8.9. We shall reasonably assist You, at Your expense, in meeting Your obligations under applicable data protection laws.
9. DISCLAIMER OF WARRANTIES
9.1. THE SERVICE(S) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.
9.2. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ACCESS TO THE SERVICE(S), WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
10. LIMITATION OF LIABILITY
10.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL BE LIMITED TO AN AMOUNT EQUAL TO TWELVE MONTHS OF THE SUBSCRIPTION CHARGES PAID BY YOU FOR THE SERVICE(S) PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
11. INDEMNIFICATION
11.1. Indemnification by You: You will indemnify and hold Us harmless against any claim brought by a third party against Us, Our respective employees, officers, directors and agents arising from Your acts or omissions in connection with clause 2 of these Terms provided that (a) We promptly notify You of the threat or notice of such a claim, (b) You will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) We shall fully cooperate with You in connection therewith.
11.2. Indemnification by Us: Subject to Your compliance with these Terms, We will indemnify and hold You harmless, from and against any claim brought against You by a third party alleging that the Services infringes or misappropriates such third party’s valid patent, copyright, or trademark (an “IP Claim”). We shall at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) You promptly notify Us of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You shall fully cooperate with Us in connection therewith. We will have no liability or obligation with respect to any IP Claim if such claim is caused by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Services by anyone apart from Us; or (iii) the combination, operation or use of Services with other hardware or software where the Services would not by itself be infringing. If Your use of Services has become, or in Our opinion is likely to become, the subject of any IP Claim, We may at Our own option and expense (a) procure the right for You to continue using the Services as set forth hereunder; (b) replace or modify Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Us, terminate Your subscription to Services and repay You, on a pro-rated basis, any Subscription Charges that You had previously paid Us for the corresponding unused portion. This clause 11.2 states Our sole, exclusive and entire liability to You and constitutes Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Services.
12. MISCELLANEOUS
12.1. Assignment: These Terms and any rights or obligations hereunder may not be assigned by You without Our prior written consent, whereas We can assign any of our rights and obligations hereunder without Your prior written consent. These Terms binds and inures to the benefit of, the Parties and their respective successors and permitted assigns.
12.2. Amendment: We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any amendments to these Terms and Your continued use of the Service(s) following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment.
12.3. Severability; No Waiver: If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Our non-exercise of any right under or provision of these Terms does not constitute a waiver of that right or provision of These Terms.
12.4. Relationship of the Parties: The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
12.5. Survival: All clauses which, by their nature are intended to survive, including without limitation clauses 4 (Intellectual Property Rights), 6 (Charges and Payment), 7.5 (Effect of Termination) 8 (Confidentiality, Data Privacy and Security), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Indemnification), 12 (Miscellaneous) and 13 (Definitions) shall survive any termination of Our agreement with Yourself regarding the use of the Service(s). Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
12.6. Notices and Consent to Electronic Communications: All notices from Us under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or to the contact mailing address provided by You while subscribing to the Service(s); or (ii) electronic mail to the e-mail address provided to Your Account. Our address for a notice is Everstage Inc. at 3524 Silverside Road, Suite 35B, Wilmington, DE 19810 with a CC to legal@everstage.com by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
12.7. Publicity Rights: Your name, trademark, and logo (“Your Marks”) are Your exclusive property. Unless otherwise agreed between the Parties in writing, We may use Your Marks to identify You as Our customer, including on the Website, social media, and in sales and marketing materials.
12.8. Governing Law and Dispute Resolution: These Terms shall be governed by the laws of the State of Delaware without regard to any conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts at Wilmington, Delaware. Any dispute, claim or controversy arising out of or relating to these Terms including the determination of the scope or applicability of these Terms to arbitrate, shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules (“AAA Rules”), The language of the arbitration shall be English. The dispute shall be resolved by a sole arbitrator who shall be appointed in accordance with the AAA Rules. The decision of the sole arbitrator shall be final and binding on the Parties.
12.9. Entire Agreement: These Terms, together with any Order Forms, constitute the entire agreement, and supersede any and all prior agreements between Us and Yourself with regard to the subject matter hereof. In the event of a conflict between the terms of any Order Form and these Terms, the Terms shall prevail. In case of a conflict between two Order Forms, the Order Form later in date shall prevail.
12.10. Force Majeure: Except for the obligation to pay Subscription Charges and notwithstanding anything to the contrary contained elsewhere, any delay in the performance of any duties or obligations of either Party will not be considered a breach of these Terms if such delay is caused by circumstances beyond such Party’s reasonable control, such as acts of God, acts of government, acts of terror or civil unrest, technical failures beyond the Party’s reasonable control, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.
13. DEFINITIONS
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts or instances created by You or on Your behalf for access and use of the Services.
API: means the application programming interfaces developed, enabled by or licensed to Us that permits access to certain functionality provided by the Service(s).
Confidential Information: means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of These Terms, Customer Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
Customer Data: means all electronic data, text, messages, Personal Data or other materials, including without limitation Personal Data of Users and End Users, submitted to the Services by You through Your Account in connection with Your use of the Services.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service(s) provided or made available by Us to You or Your Users through the Service(s) or otherwise.
End User: means any person or entity other than You or Your Users with whom You interact using the Service(s).
Order Form: means any service order form or statement of work executed by the Parties referencing these Terms and specifying the Service(s) subscribed to, particular features and functionalities in the Service(s) that You wish to avail and the Subscription Term.
Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of Everstage.
Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Sensitive Personal Information means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation government IDs, passport numbers, social security numbers, financial information, credit card data. It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws.
Service(s): means the cloud based proprietary service (Everstage.com) which enables enterprises to track sales commission and other incentive compensation schemes and any new services that We may introduce as a Service to which You may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, the Software, API and any Documentation.Software: means software provided by Us (either by download or access through the internet) that allows You to use any functionality in connection with the Service(s).
Subscription Term: means the period during which You have agreed to subscribe to the Service(s) specified in the Website or in a relevant Order Form.
Third-party Service(s) shall mean third party application(s) or service(s) integrating with the Service(s) through APIs or otherwise which require You to have Your own accounts with such third-party application(s) or service(s) in order to utilize them.
User: means those who are designated users within the Service(s), including an Account administrator, agents and other designated users.
Website(s) shall mean the websites owned and operated by Us including Everstage.com
