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Everbrite App and Portal Terms of Use

These Terms of Use (“Terms”) applies to each user of Everbrite, LLC’s (“Everbrite,” “Company,” “we,” “us,” or “our”) apps, platforms, or portals where we place these Terms (“Services”). These Terms do not replace other applicable agreements that may relate to specific business relationships you have with Everbrite, such as any Terms of Sale presented to you upon purchase. In the event of a conflict between these Terms and your separate agreement with Everbrite, if applicable, the separate agreement shall govern. For example, these Terms do not apply to your purchase of a control console through Everbrite (“Control Console”). Such purchase and use of the Control Console are governed by separate Terms and Conditions of Sale, available at everbrite.com.

Your use of the Services is subject to these Terms and all applicable laws, rules, and regulations. Please read these Terms carefully and contact us with any questions.

By accessing the Services, you agree that you have read, understand, and agree to be legally bound by the Terms set forth below. If you do not agree to be bound by these Terms, do not access the Services. These Terms may be modified by us at any time. You can review the most current version of these Terms at any time on our website at everbrite.com. In agreeing to these Terms, you are responsible for periodically checking for changes and/or updates to these Terms.

You acknowledge and agree that you have the legal power and authority to enter into these Terms. If you are entering into these Terms on behalf of a company or other entity, you represent that you have the authority to bind such entity to the Terms, in which case the terms “you” or “your” refers to such entity. To the extent these Terms conflict with any other documentation related to the Services, these terms shall govern.

License.

Everbrite grants you a revocable, limited, non-sublicensable, non-transferable, nonexclusive license to use the Services solely for your internal business purposes only. As between Everbrite and you, title, ownership rights, and intellectual property rights in and to the Services and any derivatives or modifications thereof, in whole or in part, remain with Everbrite. You do not acquire any right, title, or interest in any content on the Services by virtue of accessing the Services or making use of the permitted uses allowed under these Terms.

You understand that Everbrite may modify or discontinue the Services or any of its features at any time in its sole discretion. The Terms does not entitle you to any support, upgrades, updates, add-ons, patches, enhancements, or fixes for the Services except in Everbrite’s sole discretion. No license to use or reproduce any logo or trademark included on the Services is granted to you by these Terms or otherwise. The trademarks, logos, service marks, and business names displayed on the Services are protected, whether or not they are registered.

Any unauthorized use of content or information posted in the Services and any unauthorized reproduction, retransmission, or other use of any part of the Services may infringe our, or third parties’ copyrights, trademarks, privacy, publicity, or other rights.

Title to the Services, and all rights with respect to the Services not expressly addressed in these Terms, including without limitation, all rights of reproduction, modification, distribution, display, disassembly, and decompilation and all copyright, patent, trademark, trade secret, and other proprietary rights and interests are reserved to Everbrite.

Limitations and Restrictions of Use.

In connection with your use of the Services, you will not, and will not allow any third party to:

  1. Modify, adapt, reverse engineer, decompile, or otherwise attempt to discover the source code or structure, sequence, and organization of the Services or any content contained therein;
  2. Create any copies or derivative works regarding the Services;
  3. Use an auto-responder, or spam on the Services or any processes that run or are activated while you are not logged in to your Account, or that otherwise interfere with the proper working of the Services;
  4. Post or link to any material that contains adult content, including nudity, sexual terms, and/or images of people in positions or activities that are excessively suggestive or sexual; obscene, defamatory, libelous, slanderous, and/or unlawful content; content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent; inflammatory religious content; politically religious agendas and/or any known associations with hate, criminal, and/or terrorist activities; or hate speech, whether directed at an individual or a group, and whether based upon the race, disability, sex, creed, national origin, religious affiliation, marital status, sexual orientation, gender identity, or language of such individual or group.
  5. Remove, obscure, or change any copyright, trademark, hyperlink, or other proprietary rights notices contained within the Services;
  6. Use the Services in any manner that could damage, disable, overburden, or impair the Services, Everbrite, or any other person or entity;
  7. Collect any information (including usernames and/or email addresses) about other users of the Services; create or transmit unwanted electronic communications to other users of the Services; or otherwise interfere with such users’ enjoyment of the Services.
  8. Unless otherwise expressly authorized in the Terms or the Services, take any action to interfere with the Services or any other user’s use of the Services; or
  9. Otherwise use the Services except as expressly provided in these Terms.

You expressly agree that you will not copy, reproduce, modify, create derivative works from, distribute, or publicly display any content from the Services without our prior written consent. You agree not to bypass measures we may use to prevent or restrict access to the Services.

You agree not to use the Services for illegal purposes (including, without limitation, unlawful, harassing, libelous, abusive, threatening, or obscene purposes, including the invasion of another’s privacy). You agree that you will comply with all laws related to your use of the Services.

YOU AGREE AND UNDERSTAND THAT IN THE EVENT THAT THE SERVICES ARE INACCESSIBLE OR UNAVAILABLE DUE TO CONNECTIVITY ISSUES OR OTHERWISE, THAT YOU MAY STILL USE THE CONTROL CONSOLE AS NEEDED AND SHALL REMAIN RESPONSIBLE AND LIABLE FOR COMPLYING WITH APPLICABLE LAW. EVERBRITE DISCLAIMS ALL LIABILITY FOR YOUR FAILURE TO COMPLY WITH LAW IN THE EVENT THAT THE SERVICES ARE INACCESSIBLE OR UNAVAILABLE.

User Accounts, Password and Security.

By creating an account on the Services, you agree to provide true, accurate, current, and complete information. You agree not to create an account using a false identity or if you have previously been removed or banned from the Services. You are responsible for maintaining the confidentiality of your account information, including your username and password. You are responsible for all activities that occur on or in connection with your account and you agree to notify us immediately of any unauthorized access or use of your login information and password and, in such an event, to immediately change your password. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your account.

User Content.

You are able to submit user-generated content, such as pricing and messaging for display (“User Content”) in the Services or export such User Content through the Services. To the extent applicable, you will remain the owner of the User Content. By submitting  User Content, you grant Everbrite an irrevocable, perpetual, non-exclusive, transferable, sub-licensable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, edit, translate, as needed for Everbrite to perform its obligations to you under these Terms or under terms applicable to your purchase of a Control Console.

By posting User Content, you represent and warrant that (i) you have the right to post the User Content, (ii) that no third-party rights, laws, or regulations will be violated by such posting, (iii) that you have the right to grant Everbrite the rights granted herein, (iv) the User Content is not harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, or otherwise objectionable or offensive, and (vi) the User Content does not make the security of the Services vulnerable in any way. You are solely responsible for your User Content. You acknowledge that Everbrite and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove or otherwise edit any User Content that is submitted for export through the Services.

Intellectual Property.

The content in the Services, except User Content (as defined above) to the extent any exists, including without limitation, the trademarks, copyrights, text, software, graphics, photos, music, videos, and the like (“Content”), is owned by or licensed to Everbrite and is subject to trademark, copyright, and other intellectual property laws of the United States and foreign countries. Content in the Services is provided for your internal business use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of Everbrite. Everbrite reserves all rights not expressly granted in and to the Services and the Content.

Privacy.

Our Privacy Policy, available at https://everbrite.com/privacy-policy/, governs the collection, use, and disclosure of all personally identifiable information about you, such as your full name, birth date, e-mail address or mailing address, phone number, and any other information that can be used to identify or contact you. Our Privacy Policy is hereby incorporated herein and by agreeing to these Terms and using or accessing the Services you hereby agree to the collection and use of such information in accordance with our Privacy Policy.

You agree that Everbrite may send you messages, alerts, and other communications through the Services and through email, text message, and other similar means in accordance with the preferences you set. You agree to accept such messages and pay any applicable network access, data usage, or similar fees.

Third Party Intellectual Property.

Everbrite respects the valid intellectual property rights of others. We will respond to allegations of copyright infringement with respect to content or materials on the Services in accordance with the Digital Millennium Copyright Act, 17 U.S.C. §512(c)(2) (the “DMCA”).

If you have reason to believe that material on the Services infringes your copyright or the copyright of someone on whose behalf you are authorized to act, please send a notice by mail or email to the DMCA Designated Agent, whose contact information is listed below, requesting that the infringing material be removed.  The notice must contain the following information:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright;
  1. A description of the work claimed to have been infringed, or a representative list of such works if the notice is intended to cover multiple works on the Services;
  1. Identification of the allegedly infringing material and where the material is located on the Services;
  1. Your contact information, including your name, address, telephone number, and email address;
  1. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  1. A statement that the information in the notice is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the exclusive right that has allegedly been infringed.

Pursuant to the DMCA, our DMCA Designated Agent to receive notices and counter notices of claimed infringement is:

Everbrite, LLC
Attn: Terry Matchulat, DMCA Designated Agent
4949 South 110th Street
PO Box 20020
Greenfield, WI 53220-0020
tmatchulat@everbrite.com

We reserve the right to remove any infringing material that we believe in good faith to be copyrighted material that is used without authorization by a user of the Services. We also reserve the right to suspend or delete the account of any repeat offender.

Amendments to Terms.

Everbrite may update these Terms at its sole discretion. If at any time you become no longer able to comply with the terms of the current version of these Terms, you must stop using or accessing the Services. You acknowledge and agree that in such instance you are not entitled to any refund for any amounts paid or pre-paid in connection with the Services prior to termination of these Terms.

Patches and Updates.

Everbrite may apply patches, updates, and modifications to the Services at any time (each an “Update”), and the Services may change after the application of an Update. Everbrite may change, modify, suspend, or discontinue any aspect of the Services at any time. Everbrite may also impose limits on certain features or restrict your access to parts or all of the Services without notice or liability. Everbrite makes no representation that the Services will work on a particular operating system, web browser, version of a web browser, or device. You are responsible for having necessary internet connections, operating systems, equipment, software (including a web browser, if applicable) and services for you to effectively access and use the Services. Everbrite will endeavor to make the Services accessible on the most common web browsers or operating system versions, and the current and penultimate version of such web browsers and operating system versions, and some common devices but make no representations or warranties of the same.

Termination.

These Terms are effective until terminated. This Terms automatically terminates when Everbrite ceases to offer the Services, if we determine or believe your use of the Services involves or may involve fraud or money laundering or any other illicit activity, or upon your failure to comply with these Terms. We reserve the right, at any time and in our sole discretion, to discontinue the use of the Services in whole or in part and prevent any person or entity from accessing the Services. If these Terms terminate due to your violation of the Terms, we may prohibit you from re-registering or re-accessing the Services. Upon any termination of the Terms, you must permanently destroy all copies of the Services, accompanying documentation, associated materials, and all of its component parts in your possession or control, including from any Control Console or mobile device on which it has been installed. Upon termination of these Terms, your rights to use or access the Services will terminate immediately, and you must cease all use of the Services. The termination of these Terms will not affect our rights or your obligations arising under these Terms.

In the event that you terminate or breach these Terms, you acknowledge and agree that you are not entitled to any refund for any amounts paid or pre-paid in connection with the Services prior to termination of these Terms.

Indemnification.

You agree to indemnify and hold harmless Everbrite and its subsidiaries, affiliates, officers, agents, and employees from any claims, demands, causes of action, damages, losses, costs, and expenses in any way arising out of your use of the Services or violation of these Terms, including without limitation (i) your violation of any third-party right, including without limitation any copyright, intellectual property, or privacy right; (ii) any claims that your use of the Services caused damage to a third party, and/or (iii) violations of any and all applicable laws, rules, or regulations from any jurisdiction.

Warranty Disclaimer.

THE SERVICES ARE PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES. EVERBRITE FURTHER DOES NOT WARRANT THE QUALITY, VALIDITY, ACCURACY, OR COMPLETENESS OF THE SERVICES, THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS OR INACCURACIES WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EVERBRITE FURTHER MAKES NO WARRANTIES OR PROMISES THAT THE SERVICES WILL WORK WITH OR IN CONNECTION WITH YOUR POINT OF SALE SYSTEM.

EVERBRITE MAY MAKE CHANGES TO THE SERVICES OR ANY SERVICES PROVIDED RELATING THERETO AT ANY TIME WITHOUT NOTICE.

Limitation of Liability.

EVERBRITE AND ITS MEMBERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES, INCLUDING THE CONTENT OR ANY INFORMATION CONTAINED WITHIN OR THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, DAMAGES RESULTING FROM (I) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (II) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES, (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO, FROM, OR VIA THE SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, (V) ANY ERRORS, MISTAKES, INACCURACIES, OR OMISSIONS IN ANY CONTENT, (VI) OTHERWISE RESULTING FROM THE USE OF THE SERVICES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES AND THE CONTENT AND INFORMATION CONTAINED THEREIN. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE FOREGOING, IF EVERBRITE, ITS MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR AFFILIATES ARE FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICES OR ANY CONTENT CONTAINED THEREIN, ANY RELEASED PARTIES’ LIABILITY SHALL IN NO EVENT EXCEED $100.00.

YOU HEREBY RELEASE EVERBRITE FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO A DISPUTE BETWEEN YOU AND A THIRD PARTY POINT OF SALE SYSTEM RELATING TO YOUR USE OF THE SERVICES IN CONNECTION WITH THE SAME. CALIFORNIA RESIDENTS HEREBY SHALL AND DO WAIVE CALIFORNIA CIVIL CODE 1542, WHICH PROVIDES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Choice of Law and Venue.

This Terms and the relationship between you and Everbrite shall be governed by the laws of the State of Wisconsin. You hereby consent to the exclusive jurisdiction and forum of the federal and state courts located in the State of Wisconsin for all purposes in connection with any action or proceeding which arises out of or relates to your use of the Services. Everbrite’s failure to enforce any right or provision of these Terms does not constitute a waiver of that right or provision.

Severability.

If any provision in these Terms is held to be invalid, unenforceable, or contrary to applicable law, such provision shall be construed, limited, or altered as necessary to eliminate the invalidity, unenforceability, or conflict with applicable law, and all other provisions of these Terms shall remain in effect.

No Assignment, Sublicense or Transfer.

You may not assign, sublicense, or transfer these Terms or any rights or obligations hereunder without our prior written consent. Any such attempted assignment, sublicense, or transfer will be null and void and we, in our sole discretion, shall have the right to immediately terminate these Terms.

Entire Agreement.

This Terms sets forth the entire understanding and agreement between the parties relating to its subject matter. All provisions that should by their nature survive the termination of these Terms shall survive the expiration of these Terms including, without limitation, the rights and licenses you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, and provisions related to choice of law. Any waiver of or promise not to enforce any right under these Terms shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise.