Terms of Service

Thank you for using the website and services offered by Everyset (together with its affiliates, “Everyset”, “we”, “us”, “our”), which provide extras casting, digital onboarding, and timecard management solutions, and complimentary information technology services and related services (such website, services, and any related software, mobile applications and other applications, collectively, the “Everyset Services”). The specific Everyset Services you order will be set forth in the Agreement per project issued by Everyset specifying the Everyset Services to be provided hereunder (“Production Agreement”). To be eligible to use any Everyset Services, you must review and accept the terms of this Agreement by executing the applicable agreement provided by us.

Your signed agreement constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, and that you consent to do business electronically.

This Agreement applies to all users of the Everyset Services, including, as applicable, individual employees or contractors at a company (collectively, “Users”). If you are using the Everyset Services as a User, references to “you” are to you. If you are registering for a Everyset account or using the Everyset Services on behalf of an entity or other organization, references to “you” are to such entity or organization and you are agreeing to this Agreement for that entity or organization and representing to Everyset that you have the authority to bind that entity or organization to this Agreement (and the term “Customer” will refer to that entity or organization).

1.1 Provision of Everyset Services; Core Services

(a) Provision of Everyset Services. Everyset makes the Everyset Services available pursuant to this Terms of Service Agreement, and any applicable Production Agreement, the Everyset Privacy Policy and/or any supplemental policies or terms referenced herein or which Everyset may present you for review and acceptance at the time you subscribe to the applicable Everyset Service (collectively, “Supplemental Terms”), all of which are hereby incorporated into and form a part of this Agreement. In the event of conflict between the provisions of this Agreement and any Supplemental Terms, the Supplemental Terms will control.

(b) Core Services. Everyset may make certain Core Services available through its platform, including (i) extras casting (ii) employee onboarding, (iii) digital start paperwork (iv) and digital timecards.

1.2 Additional Services

Everyset may make certain additional services available through its platform as may be developed from time to time. Without limiting the terms of this Agreement, if you subscribe to one or more of the Additional Services governed by additional terms listed next to certain Everyset Services below (each, “Additional Terms”), then you also agree to be bound by such Additional Terms.

1.3 No Professional Advice

You acknowledge that Everyset is not a lawyer, accountant, or other professional services provider, and accordingly, does not provide legal, financial, benefits, tax, IT, or other professional advice. Any information provided by the Everyset Services is intended for your general use only, including with respect to any Templates available within the platform, and does not constitute legal advice. You understand that you are responsible for any actions taken based upon information received from Everyset, and where professional advice is needed, that you should seek independent professional advice from a person who is licensed or qualified in the applicable area.

1.4 Eligibility

The Everyset Services are only available for persons in those jurisdictions in which they may legally be sold. Nothing on the Everyset Services shall be considered a solicitation to buy or an offer to sell anything to any person in any jurisdiction in which such offer, solicitation, purchase or sale would be unlawful. The technology and software underlying the Service or distributed in connection therewith and the transmission of applicable data, if any, is subject to United States export controls (the “Software”). No such Software or data may be downloaded from the Everyset Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using such Software or data is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Everyset Services, including as it concerns online conduct and acceptable content. Everyset hereby disclaims any and all liability with respect to any use of the Everyset Services outside of the terms of this Agreement.

1.5 Mobile Services

The Everyset Services include certain services that are available via a mobile device, including (i) the ability to upload content to the Everyset Services, (ii) the ability to browse the Everyset Services and other websites, and (iii) the ability to access certain features (collectively, the “Mobile Services”). To the extent you access the Everyset Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Customer and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Customer account information to ensure that your messages are not sent to the person that acquires your old number.

2.1 Consent to Electronic Delivery; Electronic Signature

(a) Electronic Signature. When Background Performers execute documents using the e-signature tools set forth in the Everyset platform (“E-Sign Service”), they consent to electronically sign such documents, including employment-related documents, and agree that their electronic signature (“Electronic Signature“) is the legal equivalent of a manual or handwritten signature.

(b) Electronic Delivery. You agree that Everyset may electronically deliver Service-related documents and/or disclosures to your production company. You also authorize Everyset to receive such Service-related documents and/or disclosure electronically on your behalf, and agree to be notified of such notices electronically. Everyset may provide electronic delivery via email to the email address provided by you in the Everyset platform or by reference to a location on the Everyset platform to which you have access. If you are using the Everyset Services on behalf of a Customer and/or its employees and contractors, you represent that you have affirmative consent from your employees and/or contractors of such company to receive electronic disclosures from Everyset through the Everyset Services.

(c) Withdrawing Consent. As a User, you are entitled to withdraw your consent to electronic signatures or electronic disclosures at any time by contacting your employer. However, you acknowledge that if you withdraw consent: (i) Everyset cannot guarantee that you will be able to obtain relevant disclosures, whether in paper or electronic form, nor maintain full access to the Everyset Services, (ii) you may be required to obtain paper copies of your documents and notices directly from its employer, and (iii) you may incur additional fees for requesting paper copies, to the extent permitted by applicable law. As a Customer, you acknowledge that Everyset relies on electronic communications as a core component of its services; accordingly, if you are using the Everyset Services on behalf of a Customer and/or its employees and contractors and withdraw electronic consent for such Customer and/or its employees and contractors, Everyset may no longer be able to provide the Everyset Services to you, and may terminate Customer’s use of the Everyset Services in whole or in part.

(d) Enforceability. You acknowledge that, under applicable laws, some documents require a manual or handwritten signature, and that it is your responsibility to determine whether a document requires a manual or handwritten signature. You understand that you are solely responsible with respect to the content, validity, or enforceability of any document, and that Everyset makes no representations or warranties regarding the validity or enforceability of your documents signed using the E-Sign Service.

2.2 Accuracy of Customer Information

All Everyset Services will be based upon information provided to Everyset by you or third party services from which you may elect to import your information (including proof of federal, state and local tax identification numbers, payroll information, benefit information and insurance information, leave policies and other employment practices) (“User Representations”). You must review all User Representations and ensure such information is accurate, complete, and timely. You acknowledge that Everyset is entitled to rely conclusively on all User Representation, does not have any obligation to verify, correct, or otherwise ensure the accuracy or quality of the User Representations. You further acknowledge that Everyset bears no responsibility for and shall not have any liability for errors, omissions, penalties, fines, missed payments, judgments, incorrect coverage, or any other losses incurred that result from inaccurate, incomplete, or untimely User Representations.

2.3 User Data

With respect to any information which you provide through the Everyset Services and that Everyset hosts (collectively, the “User Data”), including Account Information and Materials (each as defined herein), you represent and warrant that you have the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the User Data in connection with your use of the Everyset Services. Without limiting the foregoing, in the event that you request that Everyset provide any User Data (including employee and contractor information) to any third party or to any non-U.S. Customer location, you represent that you have acquired any consents or provided any notices required to transfer such content or information and that such transfer does not violate any applicable laws. By providing any User Data to Everyset, you hereby grant and will grant Everyset a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Data to perform the Everyset Services, including as set forth in this Agreement, Everyset’s Terms of Service. You acknowledge and agree that Everyset may preserve User Data and may also disclose User Data if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this Agreement; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Everyset, its users and the public. You understand that the technical processing and transmission of the Everyset Services, including User Data, may involve (v) transmissions over various networks; and (vi) changes to conform and adapt to technical requirements of connecting networks or devices.

2.4 Account Administration; Authorizations

(a) Accounts. To use the Everyset Services, your production team will create an account (an “Account”) by providing their email address (“Account Email”) and a master password (the “Master Password” and, together with the Account Email, the “Credentials”). Your productions are responsible for the security of your Account, and agree to keep Credentials secure. You understand that your Account is solely for your production’s use, and you will not share Account or Credentials with anyone. You are fully responsible for all activities on the Everyset Services associated with your Account. As a Customer, you are fully responsible for all activities of your employees and contractors on the Everyset Services associates with their User Accounts.

(b) Account Administration. Customer will designate and authorize either itself and/or one or more individuals with authority to (i) act on Customer’s behalf, (ii) provide information on Customer’s behalf, and (iii) bind Customer and/or Customer’s business with respect to the Everyset Services (each such individual, an “Account Administrator”). Customer is solely responsible for all actions taken under any account to which Customer has access. Any actions taken under such accounts will be deemed authorized by Customer, regardless of Customer’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (iv) actions taken by Customer, an Account Administrator, or an authorized representative of Customer (an “Authorized Representative”), and (v) actions that Customer, an Account Administrator, or an Authorized Representative (or anyone that Everyset reasonably believes to be Customer, an Account Administrator, or an Authorized Representative) directs or instructs Everyset to take on its behalf.

(c) Account Information. In order to access or use certain aspects of the Everyset Services, you will need to provide access to information maintained by certain third party institutions, such as payroll companies with which you have customer relationships, manage accounts or engage in transactions and the various applications and services for which you use Everyset’s access and password management services. You retain all right, title and interest in and to your Account Information, and represent and warrant that the Account Information provided is accurate and complete and may be provided to Everyset without any obligations on Everyset to verify the accuracy or completeness of such Account Information. You are responsible for the consequences of any instructions provided that Everyset follows, and Everyset has no liability or responsibility for any inability to use the Everyset Services due to such inaccuracy or incompleteness of Account Information.

(d) Account Security. Customer is solely responsible for (i) following instructions that Everyset provides to Customer with respect to the Everyset Services, and (ii) maintaining applicable accounts with providers of Third Party Products (as defined below) utilized by Customer. Customer will adequately secure and keep confidential any Customer passwords or credentials, and any information accessible via its account. If Customer believes or suspects that its account, passwords or credentials have been accessed by or compromised, Customer must immediately notify Everyset. Everyset reserves the right to prevent access to the Everyset Services if Everyset has reason to believe that any such accounts, passwords or credentials have been compromised.

(e) Communications and Notifications. Customer is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) made available to Customer by Everyset for Customer’s review, and Customer must notify Everyset of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Everyset. Customer must promptly notify Everyset of any third party notices that Customer may receive which could affect Everyset’s ability to effectively provide the Everyset Services (e.g., to the extent applicable, notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Everyset Services; or notices from insurance carriers regarding eligibility, enrollment, payment or any other communications affecting the contract of services with that insurance carrier).

(f) Authorizations. Customer agrees that, to the fullest extent permitted by law, the provision of account login or identity verification credentials to Everyset by or on behalf of Customer, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Everyset Services, whether by clicking the applicable action button, providing a verbal instruction or otherwise, will have the same effect as providing a written signature authorizing the applicable action.

2.5 Prohibited Activities. You will not (nor will you permit any third party to):

• Reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive the source code underlying the Everyset Services;
• Transfer, resell, lease, license, or assign Everyset Services or otherwise offer the Everyset Services on a standalone basis, or permit any third party to access the Everyset Services, without express permission from Everyset;
• Use the Everyset Services to build a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Everyset Services;
• Tamper with the security of Everyset’s systems or tamper with other customer accounts of Everyset;
• Attempt to probe, scan or test the vulnerability of any Everyset systems or to breach the security or authentication measures of Everyset’s systems;
• Use the Everyset Services to send payments directly or indirectly to, or for the benefit of, any person or entity that is (a) located in any country or jurisdiction that is subject to U.S. economic sanctions; (b) identified on any U.S. government list of prohibition, including the Specially Designated Nationals and Consolidated Sanctions List of the Office of Foreign Assets Control, U.S. Department of the Treasury; or (c) owned or controlled by any person or entity in (a) or (b);
• Use or launch any automated system, including “robots,” “spiders,” or “offline readers,” that sends more requests to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser;
• Use the Everyset Services in any manner that damages, disables, overburdens, or impairs any of our websites, servers, or otherwise interferes with any other party’s use of the Everyset Services;
• Use Everyset Services to communicate, post or share information that is abusive, defamatory, fraudulent, contains adult content and/or child pornography, advocates hatred against any person or a person of a protected class based on race, creed, color or sexual orientation such as bullying, racism, bigotry or any other offensive subject matter, or contains a reference or link to a third party site that may contain such material;
• Access the Everyset Services other than through our interface;
• Use the Everyset Services in violation of any applicable law, for fraudulent or illegal activities or outside the scope expressly permitted hereunder.

For the avoidance of doubt, Everyset welcomes and encourages the responsible disclosure of security vulnerabilities through its Vulnerability Reporting program, by emailing tech@everyset.com. Legitimate participation in Everyset’s Vulnerability Reporting program is not a violation of the security-related prohibitions of this Section.

2.7 Compliance with Laws; Digital Millennium 
Copyright Act

(a) Compliance with Laws. You will be solely responsible for compliance with any and all applicable laws, rules and regulations affecting your business, and any use you may make of the Everyset Services to assist you in complying with any such laws, rules or regulations. In addition, Customer is responsible for ensuring that its employees and contractors comply with applicable laws while using the Everyset Services, including the intellectual property and third-party rights of others.

(b) Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated under the Digital Millennium Copyright Act (“DMCA”), you should notify legal@Everyset.com of your infringement claim with shall include: (a) the subject line of “DMCA Takedown Request”; (b) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (c) a description of the copyrighted work or other intellectual property that you claim has been infringed; (d) a description of where the material that you claim is infringing is located on the Everyset Service, with enough detail that we may find it on the Everyset Service; (e) your address, telephone number, and email address; (f) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and (g) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. In accordance with the DMCA and other applicable law, Everyset has adopted a policy of terminating, in appropriate circumstances and at Everyset’s sole discretion, Users who are deemed to be repeat infringers. Everyset may also at its sole discretion limit access to the Everyset Service and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

3.1 Term

The term of this Agreement will commence on the date you first execute a Production Agreement or, if earlier, upon initial use of Everyset Service, and will continue until terminated as provided in this Agreement or Master Service Agreement , if applicable (the “Term”). With respect to any Everyset Services provided under a Production Agreement, the subscription term for such Everyset Services will be as specified in the applicable Production Agreement (with respect to the applicable Everyset Services, the “Initial Subscription Term”), and will automatically renew for additional periods of the same duration as the Initial Subscription Term (collectively, the “Subscription Term”). Everyset may change the Everyset Services, stop providing the Everyset Services or features of it or create usage limits for the Everyset Services for all of our Users generally; provided that we will notify you of any material change at least thirty (30) days prior to the implementation of the change unless the changes are being made for legal reasons in which case we will notify you within a reasonable time period.

3.2 Termination

Everyset may permanently terminate your access to the Everyset Services and this Agreement without liability to you on thirty (30) days’ prior notice provided at the sole discretion of Everyset, for any actual or suspected depending on the violation of any provision of this Agreement. You may deactivate your Everyset Services account by emailing support@everyset.com Upon any termination, the parties will continue to be bound by any terms of this Agreement that by their nature extend beyond termination.

3.3 Suspension

Without limiting our other rights or remedies, Everyset may temporarily suspend your access to any portion of the Everyset Services, including access to any leased equipment, without prior notice if (a) Everyset reasonably determines that (i) there is a threat or attack on the Everyset Services or other event that may create a risk to the Everyset Services, you or any other customer of Everyset; (ii) your use of the Everyset Services disrupts or poses a security risk to the Everyset Services or any other Everyset customer; or (iii) you are in breach of Section 2.6 (Prohibited Activities) or Section 2.7 (Compliance with Laws; DMCA) or (b) Everyset has notified you that any amount owed by you under this Agreement is thirty (30) or more days overdue, and you have failed to submit payment in full within five (5) days of receipt of such notice (collectively, “Service Suspensions”). We will provide notice of any Service Suspension following the commencement of the Service Suspension and provide updates regarding resumption of Everyset Services following any Service Suspension. Everyset will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.

4.1 Fees

The term of this Agreement will commence on the date you first execute a Production Agreement or, if earlier, upon initial use of Everyset Service, and will continue until terminated as provided in this Agreement or Master Service Agreement , if applicable (the “Term”). With respect to any Everyset Services provided under a Production Agreement, the subscription term for such Everyset Services will be as specified in the applicable Production Agreement (with respect to the applicable Everyset Services, the “Initial Subscription Term”), and will automatically renew for additional periods of the same duration as the Initial Subscription Term (collectively, the “Subscription Term”). Everyset may change the Everyset Services, stop providing the Everyset Services or features of it or create usage limits for the Everyset Services for all of our Users generally; provided that we will notify you of any material change at least thirty (30) days prior to the implementation of the change unless the changes are being made for legal reasons in which case we will notify you within a reasonable time period.

4.2 ACH Debits

When Customer subscribes to a paid product that is part of the Everyset Services, Customer authorizes Everyset and its designated payment processors to store Customer’s designated bank account information and other related information. Customer must approve and authorizes Everyset to debit all applicable charges for such paid product from Customer’s designated payment account, including via ACH debit for bank accounts on the date such charges become due. This authorization to initiate ACH debit transactions will remain in full force and effect until Everyset has received written notice from Customer by email at notices@Everyset.com at least thirty days (30) in advance of the date the applicable charges for the paid product become due. Because these are electronic transactions, these funds may be withdrawn from Customer’s designated bank account immediately. In the case of an ACH debit transaction that is rejected for insufficient funds, Customer understands that Everyset may at its discretion attempt to process the debit in the amount of the applicable paid product again within thirty (30) days and Everyset may separately impose a fee of $25 for each transaction returned for insufficient funds, as permitted by applicable law. You certify that you are an authorized user of Customer’s bank account and Customer will not dispute these scheduled transactions with such bank so long as the transactions correspond to this Agreement, an applicable Production Agreement, and/or any other applicable agreement for such paid product. Customer agrees to follow rules promulgated by the National Automated Clearing House Association (NACHA), which govern ACH transactions.

4.3 Fee Disputes

Customer must notify Everyset in writing if Customer disputes any portion of any fees paid or payable by Customer under this Agreement or any Production Agreement. Customer must provide written notice to Everyset within thirty (30) days of the applicable charge and Everyset will work together with Customer to resolve the applicable dispute promptly. If Customer does not provide Everyset with written notice of Customer’s fee dispute within this 30 day period, Customer will not be entitled to dispute any fees paid or payable by Customer.

4.4 Taxes

All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Everyset’s net income.

5.1 Everyset’s Ownership Rights

As between the parties, all right, title, and interest in and to the Everyset Services, including Everyset Content, shall remain vested in Everyset. Except for the express rights granted hereunder, Everyset also reserves all rights, title and interests in and to the Everyset Services and Everyset’s Confidential Information.

5.2 Feedback

Customer or Users may from time to time provide Everyset suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Everyset Services. Everyset will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Everyset will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

5.3 User Data

All right, title, and interest in and to the User Data, including the Account Information and Materials, you provide will remain vested in you. Upon termination, Everyset will reasonably cooperate with Customer to facilitate a final export of such User Data from Everyset’s systems and thereafter delete any and all remaining User Data from the same, unless otherwise prohibited by law.

5.4 Confidentiality

“Confidential Information” means any information or data disclosed by either party that should be reasonably understood to be confidential in light of the nature of the information. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Each party will protect any Confidential Information of the other party which it may receive or otherwise be exposed to in the course of exercising its rights or performing its obligations hereunder. Each party will use the same care to protect the other party’s Confidential Information as it would use to protect its own similar information, but in no event less than reasonable care. Each party will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights under this Agreement, and as otherwise set forth in Everyset’s Privacy Policy. Neither party will disclose any Confidential Information of the other party to any third party without the prior written consent of the disclosing party, other than furnishing such Confidential Information (e) to its employees and consultants who are required to have access to the Confidential Information in connection with the exercise of receiving party’s rights or performance of its obligations under this Agreement, (f) to its professional advisers (e.g., lawyers and accountants), and (g) as otherwise set forth in Everyset’s Privacy Policy, provided, however, that any and all such employees, consultants and advisers are bound by agreements or, in the case of professional advisers, ethical duties, to treat, hold and maintain such Confidential Information in a manner that is consistent with the terms and conditions of this Section.

5.5 Data Security

(a) Data Security. Everyset will implement and maintain commercially reasonable and industry standard administrative, physical, organizational and technical safeguards designed to prevent unauthorized use, access, processing, destruction, loss, alteration or disclosure of any User Data, which you provide through the Everyset Services and that Everyset hosts. Such safeguards will include, at minimum, an industry standard information security program to safeguard such User Data as well as procedures to help ensure that only those with a “need to know” have access to such User Data. Everyset will promptly notify Customer upon becoming aware of an incident that has or potentially has compromised the security, confidentiality or integrity of such User Data. Everyset will comply with all notification obligations that may be required by applicable state and federal laws and regulations. Everyset further reserves the right to protect its network and services from external threats, including by restricting network access from various hosting providers, traffic proxies, and locations where Everyset does not conduct business.

7.1 Indemnification by You

You agree to indemnify, defend and hold harmless Everyset against any claim, demand, suit, or proceeding (“Claim”) arising out of (a) your unauthorized use of or access to the Everyset Services, (b) your violation of any term of this Agreement, (c) your violation of any third-party rights, including any right of privacy, any right provided by any labor or employment law, rule, or regulation or any intellectual property right, (d) your violation of any applicable law, rule or regulation, (e) the User Data and any Use Representations and (f) any agreement entered into, or any dispute, between you and, if you are a User, your employer, or, if you are a Customer, your employee or contractor, or (vii) any other party’s access to and use of the Everyset Services (or access and use of any Third Party Product via the Everyset Services) with your unique username, password or other appropriate security code (or, with respect to Third Party Products, your Account Information). In order to receive the benefit of the foregoing indemnity, Everyset must give you prompt written notice of the Claim and all reasonable cooperation, at your expense, in your defense and settlement of the Claim.

7.2 Indemnification by Everyset

Everyset agrees to indemnify, defend and hold you harmless against any Claim arising out of allegations that the Everyset Services or any portion thereof infringe(s) or otherwise violate(s) such third party’s U.S. intellectual property rights. In order to receive the benefit of the foregoing indemnity, you must give Everyset prompt written notice of the Claim, sole control to defend and settle such Claim and all reasonable cooperation, at Everyset’ expense, in Everyset’ defense and settlement of the Claim. If a claim under the foregoing clause (a) is made or likely to be made, Everyset may: (i) procure a license to allow you to continue using the allegedly infringing component(s) of the Everyset Services, (ii) modify the infringing component(s) to make them non-infringing, or (b) if (i) and (ii) are not reasonably available, terminate your right to use the infringing component(s) effective immediately.

9.1 Assignment; Delegation

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Everyset. Any attempted transfer or assignment in violation hereof shall be null and void.

9.2 Governing Law

This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Subject to the agreement to arbitrate below, all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of Los Angeles County, California, USA, and the parties hereby consent to the personal jurisdiction of these courts.

9.3 Notices

Everyset may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, text message, written or hard copy notice, or through posting of such notice on the Everyset Services, as determined by Everyset in its sole discretion. Everyset reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as provided in the Everyset Services. Everyset is not responsible for any automatic filtering you or your network provider may apply to email notifications Everyset sends to the email address you provide. Everyset may, in its sole discretion, modify or update this Agreement from time to time, so you should review this page periodically. When Everyset materially changes this Agreement, Everyset will update the ‘Last Updated’ date at the top of this page and notify you that material changes have been made to this Agreement. Any such changes will become effective no earlier than thirty (30) days after they are posted, except that changes addressing new functions of the Everyset Services or changes made for legal reasons will be effective immediately. Your continued use of the Everyset Services after the date any such change become effective constitutes your acceptance of this Agreement, as updated. If you do not agree to any of these terms or any future terms, you may not use or access the Everyset Services. Notices to Everyset shall be made to the attention of the “Legal Department” and sent via mail to 23705 Vanowen Street #296, West Hills, CA 91307 with a copy sent via email to legal@everyset.com.

9.4 Waiver

No waiver of any rights will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

9.5 Relationship

Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

9.6 Unenforceability

If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

9.7 Force Majeure

In addition, neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

9.8 Entire Agreement

This Agreement (including all Production Agreements, the Everyset Privacy Policy, Additional Terms, and any supplemental policies or terms referenced herein or which Everyset may present you for review and acceptance at the time you subscribe to the applicable Everyset Service) comprises the entire agreement between you and Everyset with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements. No oral or written information or advice given by Everyset, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

9.9 Interpretation

For purposes hereof, “including” means “including without limitation”.

9.10 Publicity

Everyset will not use your name or logo on our website or in other promotional marketing materials without your prior written consent.

10.1 First Try Customer Support

If you have any issues with the Everyset Services or Everyset, you must try to resolve the issue first through Everyset Support.

10.2 Agreement to Arbitrate

If the parties are not able to resolve the dispute through Everyset customer support within sixty (60) days after you first contact Everyset Support, you and Everyset agree to resolve any dispute arising under or relating to this Agreement, including under Everyset’s Privacy Policy or Everyset’s Data Security Policy, or in relation to the Everyset Services, through final and binding arbitration to be conducted in Los Angeles, California, or in another location that both parties agree to in writing. This arbitration agreement applies to all claims, brought under any legal theory, unless the claim fits in one of the exceptions below. It also applies even after you have stopped using your Everyset account or have deleted it. If the parties have a dispute about whether this agreement to arbitrate can be enforced or applies to such dispute, the parties agree that the arbitrator will decide that too.

10.3 Exceptions to Agreement to Arbitrate

You and Everyset agree that the agreement to arbitrate will not apply to any disputes relating to your or Everyset’s intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents) and that such disputes that be brought in any that has jurisdiction over such claims. Also, either party can bring a claim in small claims court either in San Francisco, California (or small claims court in another place if both parties agree in writing), if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.

10.4 Details of Arbitration Procedure

(a) Mediation. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association (“AAA”), with all mediator fees and expenses paid equally by the parties. If mediation does not result in a resolution of the dispute within 60 days after the mediation is held, either party may initiate an arbitration proceeding under the rules of the AAA. AAA’s rules and procedures are available on their website available at http://www.adr.org or Customer can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the “AAA Rules“) and will be held before a single arbitrator appointed in accordance with the AAA Rules. To the extent anything described in this agreement to arbitrate conflicts with the AAA Rules, the language of this agreement to arbitrate applies.

(b) Discovery. Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and each party may take one (1) deposition. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.

(c) Arbitration Award. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement, and may not award any relief that is inconsistent with this Agreement.

(d) Final and Binding. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.

10.5 Class Action Waiver

Both you and Everyset agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither you nor Everyset can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless all parties agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Everyset customers, and cannot be used to decide other disputes with other customers. If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of this Agreement will still apply.