This License and Service Agreement (the "Agreement") is entered as of the date you click "I accept" below ("Effective Date"), by and between Evergreen Technology ("Evergreen") and the entity or individual clicking “I accept” below ("User", "You" or "Your"), which is registering to use the online marketing platform referenced and offered by Evergreen through its websites located at evergreenhq.com (the "Website"), mobile applications, and desktop applications (collectively and individually, the "Service") to advertise your bars, restaurants, and other physical locations ("Sites"). If you are accessing the Service on behalf of a company or other entity, you warrant that you have authority to enter into this Agreement on behalf of the company and acknowledge that it is a legally binding agreement.
1. SYSTEM ACCESS AND LICENSE GRANT.
1.1. License Grants.
1.1.1. By Evergreen. Subject to your compliance with the terms and conditions set forth in this Agreement, Evergreen hereby grants you a limited, nonexclusive, nontransferable, non-assignable, worldwide right and license to access and use the graphic user interface functions and hosting facilities provided by the Service in order to enable you to upload, store, manage, display, and distribute certain information and other data uploaded by User to the Service (the "User Content").
1.1.2. By User. A central purpose of this Agreement is to allow Evergreen to make the User Content available to potential customers and any third parties Evergreen may deem desirable, on and through the Sites. Subject to the terms and conditions of this Agreement, you hereby grant to Evergreen a royalty-free, perpetual, worldwide, nonexclusive license, to reproduce, translate, encode, publish, compile, use and distribute the User Content for the following purposes: (1) to provide the Service to User, (2) to sort, compile, and otherwise make the User Content available to other third parties on and through the Sites, and (3) to fulfill Evergreen's obligations under this Agreement. You also grant a royalty-free, perpetual, worldwide, and non- exclusive license to use your logo and related intellectual property for the purposes of advertising the Service and referring to you and your business on the Sites.
1.2. Restrictions. User agrees that User will not: (a) access, use, copy, or distribute the Service except as expressly allowed herein, or in a manner that exceeds or violates any limitation set forth in this Agreement; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive all or any portion of the Service or any of the Sites; (c) use or allow the use of the Service for rental or in the operation of a service bureau or time-sharing arrangement, hosting or ASP model; (d) interfere with, disrupt, alter, translate, or modify the Service, or create an undue burden on the Service or networks or services connected to the Service; (3) use any electronic or other automated method to scrape, retain, archive, or in any other manner, access, save, and/or archive the User Content, except as expressly allowed hereunder, or (e) use the Service in violation of any law, rule, regulation, statute, or industry self- regulatory code.
2.1. Ownership of Service. As between the parties, Evergreen shall retain all title, copyright and IP Rights in the Service. User does not acquire any right, express or implied, in the Service, other than those specified in this Agreement, and Evergreen shall retain all right, title and interest to, and User does not acquire any right, express or implied, in, any improvement to the Service or any modification thereto. For purposes of this Agreement, "IP Rights" means all forms of intellectual property rights and protections throughout the world, including, but not limited to, any (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof), (b) copyrights, (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith, (d) trade secrets, (e) rights in databases and designs (ornamental or otherwise), (f) moral rights, rights of privacy, rights of publicity and similar rights, and (g) and any other proprietary rights and protections, whether currently existing or hereafter developed or acquired, whether published or unpublished, arising under statutory law, common law, or by contract, and whether or not perfected, including all applications, disclosures and registrations with respect thereto.
2.2. Ownership of User Content. Evergreen acknowledges and agrees that, as between the parties, User owns all right, title, and interest in and to the User Content, including all IP Rights therein. User licenses the User Content as provided above and for no other purpose.
2.3. Delivery of User Content. Upon termination of this Agreement, Evergreen shall retain User Content for at least sixty (60) days to permit User to retrieve said data. Nevertheless, Evergreen may retain the User Content as long as it wishes upon the terms of the license set forth above.
3. PAYMENT. Evergreen charges and collects fees in advance. You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Evergreen may withhold performance and discontinue the subscription until all amounts due are paid in full. All amounts are in US dollars. All fees are exclusive of all taxes, and you shall be responsible for payment of all such taxes, excluding only United States taxes based solely on Evergreen's income. You agree to provide Evergreen with complete and accurate billing and contact information. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, Evergreen may terminate your access to the Service in addition to any other legal remedies. By providing Evergreen with your billing information, you agree that Evergreen is authorized to immediately invoice your account for all fees due and payable to Evergreen hereunder and that no additional notice or consent is required.
4.1 Users who purchase annual or semi-annual subscriptions have thirty (30) days after their purchase to cancel and receive a full refund. Users who purchase monthly subscriptions have five (5) days after purchase to cancel and receive a full refund. After the cancelation period ends, all purchases are final and all fees paid are non- refundable, even if your account is later terminated by Evergreen. If you cancel a month-to-month subscription partially through the month, your subscription will be cancelled at the end of the billing period. If you have questions, please contact support@Evergreen.com.
4.2 Upon expiration of your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a "Renewal Commencement Date") and continue month-to-month, at Evergreen's then-current price for such subscription. You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date by contacting us at (619) 512-2447 or firstname.lastname@example.org and requesting a cancellation. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Evergreen to charge your payment provider provided in your billing information now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Evergreen does not receive payment from your payment provider, (a) you agree to pay all amounts due on your account upon demand, and/or (b) you agree that Evergreen may either terminate or suspend your subscription and continue to attempt to charge your payment provider until payment is received.
5. DISCLAIMER. DISCLAIMER. EXCEPT AS EXPRESSLY INDICATED IN THIS AGREEMENT AND SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, EVERGREEN MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE OR THE SITES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND OR FITNESS FOR A PARTICULAR PURPOSE. EVERGREEN DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL MEET USER'S SPECIFIC REQUIREMENTS OR BE AVAILABLE AT ALL TIMES. THE SERVICES ARE PROVIDED AS-IS AND AS-AVAILABLE.
6.1. User agrees to indemnify, defend, release and hold Evergreen harmless from and against any and all claims, demands, actions, liabilities, damages, costs, losses and expenses including reasonable attorneys' fees (collectively, "Damages") that Evergreen may incur, suffer or be required to pay by reasons of (a) the non- performance of your obligations hereunder; (b) any breach by, omission of, or negligent act by you in the performance of its obligations in connection with this Agreement; and/or (c) any allegation or claim related to your User Content or use of the Service in any way, including any claim that any statement or offer contained in User Content is false, deceptive, or misleading.
6.2. In addition, you acknowledge and agree that the advertising of alcohol related products, events, and offers, including happy hours and similar specials, may be subject to specific State laws or industry self-regulatory codes, such as the Beer Institute Advertising and Marketing Code, the Distilled Spirits Council of the United State's Code of Responsible Practices, and the Wine Institute's Code of Advertising Standards. You agree that your use of the Service will, at all times comply with all such laws and self-regulatory codes and you agree to unconditionally indemnify, defend, release, and hold harmless Evergreen against any and all damages, costs, losses, and expenses including reasonable attorneys' fees arising out of or in connection with any actual or alleged breach or such laws or self-regulatory codes in your use of the Service or in relation to your User Content or activities.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL EVERGREEN LIABLE FOR ANY AMOUNT GREATER THAN THE TOTAL PAID BY YOU TO EVERGREEN IN THE SIX MONTHS PRIOR TO THE DATE ANY CLAIM ARISES, OR FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST SAVINGS, OR ANY INCIDENTAL, SPECIAL, OR OTHER ECONOMIC CONSEQUENTIAL DAMAGES, EVEN IF EVERGREEN IS INFORMED OF THE POSSIBILITY (SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY).
8. TERM AND TERMINATION.
8.1. Term. This Agreement shall be effective upon the Effective Date and, unless terminated earlier as set forth herein, shall remain in full force and effect for a period of one (1) year thereafter and may be extended for additional terms (the then effective term referred to herein as the "Term") by mutual agreement of the parties.
8.2.1. For Breach. Either party will have the right to terminate this Agreement for breach of any material term or condition of this Agreement and failure to cure such breach within thirty (30) days after written notice, or in the event the other party becomes insolvent.
8.2.2. For Insolvency. Either party may terminate this agreement upon written notice if: (a) the other party: becomes insolvent; or voluntary or involuntary proceedings are instituted by or against such other party under any federal, state, or foreign bankruptcy or insolvency laws, and, in the case of involuntary proceedings commenced against such party, such proceedings are not terminated within sixty (60) days; (b) if the other party makes an assignment for the benefit of creditors; if the other party ceases to operate as a going concern; or (c) if a receiver is appointed for such other party.
8.2.3. For Convenience. Notwithstanding anything set forth herein, either party may terminate this Agreement upon thirty (30) days notice at any time for any reason.
8.3. Effect of Termination. Upon termination or expiration of this Agreement, Evergreen may retain and continue to use the User Content it has already obtained as of the termination date. The provisions of this Agreement that by their nature appear to be intended to survive shall survive.
8.4. Suspension. In the event that any Fees remain unpaid thirty (30) days after the applicable due date, Evergreen reserves the right to suspend or terminate User's access to or use of the Service until the Fees have been paid.
8.1. Governing Law. The interpretation, validity and enforcement of this Agreement, and all legal actions brought under or in connection with the subject matter of this Agreement, shall be governed by the laws of the State of California (except that any conflicts-of-law principles of such state that would result in the application of the law of another jurisdiction shall be disregarded). Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for the Southern District of California or, if such court would not have jurisdiction over the matter, then only in a Los Angeles State court sitting in the City of San Diego, and the parties hereto submit to exclusive personal jurisdiction in such courts.
8.2 Relationship. Nothing contained in this Agreement is intended to constitute User and Evergreen as partners or joint ventures, or the employees, agents, or representatives of one another. Evergreen is acting solely as an independent contractor and not as an agent of User. Neither party has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other unless otherwise expressly agreed to in writing signed by both parties.
8.3 Force Majeure. Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authorities, Act of God or by the public enemy, acts or omissions of carriers, or other causes beyond the reasonable control of Evergreen or User.
8.4 Compliance with Laws and Regulations. You represent and warrant that you shall comply with all applicable federal, state and local and other laws, government regulations and orders and all industry self-regulatory codes.
8.5 Entire Agreement. This Agreement constitutes the entire Agreement between User and Evergreen relating to the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written communications. This Agreement may only be modified in writing, signed by a duly authorized representative of the parties.
8.6 Confidentiality. You agree to keep confidential and to not exploit or use any of the information you receive from Evergreen regarding its business, methods, employees, finances, business plans, or other information that would reasonably be considered confidential.
8.7 Assignment. You may not assign the benefits or obligations of this Agreement without Evergreen's written consent, which shall not be unreasonably withheld. Evergreen may assign this Agreement without your permission.
8.8 Security of Your Account. You are solely responsible to protect and guard the confidentiality and security of the information necessary to log in to the Services, including your user name and password.
8.9 Attorney Fees. In the event of a legal dispute related to this Agreement that results in litigation, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.