Evernote Business Agreement
Updated on April 29, 2013 - What's new »
This Evernote Business Agreement (this "Evernote Business Agreement" or this "Agreement") governs use of the Evernote Business service (the "Evernote Business Service" or "Evernote Business") by the entity agreeing to these terms ("Customer"). Customer is one party to this Agreement. If Customer's headquarters are located in the United States or Canada, then the other party to this Agreement is Evernote Corporation, a Delaware corporation headquartered in California, USA. If Customer's headquarters are located in Brasil, then the other party to this contract is Evernote do Brasil Serviços de Aplicações Ltda., a company headquartered in São Paulo, Brasil ("Evernote Brasil"). If Customer's headquarters are located outside of the United States, Canada and Brasil, then the other party to this Agreement is Evernote GmbH, a wholly-owned subsidiary of Evernote Corporation headquartered in Zurich, Switzerland. (The term "Evernote," as used in this Agreement, refers to either Evernote Corporation, Evernote Brasil or Evernote GmbH, whichever is the contracting party based on where Customer is headquartered).
You are required to accept this Evernote Business Agreement on behalf of the Customer as a condition to creating an Evernote Business Administrator Account. The Agreement is effective as of the date Evernote makes the Evernote Business Administrator Account available to the Customer (the "Effective Date"). By accepting this Agreement, you confirm that you have reviewed the Agreement on behalf of Customer and you are warranting to Evernote that you are authorized to accept this Agreement on behalf of Customer. If you do not have the legal authority to bind such Customer, please do not check the box signifying that you accept the terms of this Agreement.
In addition to the terms and conditions set forth in this Agreement, Customer's use of the Evernote Business Service is also governed by the then-current terms and conditions governing the use of Evernote's services (the "Terms of Service"), as published at the Evernote web site. If there is any conflict between the Terms of Service and this Agreement, then the terms of this Agreement shall govern with respect to the Evernote Business Service.
If Customer desires to utilize any other service or products provided by Evernote, Customer may be required to enter into a separate written agreement or click "accept" or "agree" to become a party to another contract with Evernote relating to such service and/or product (a "Separate Agreement"), and this Agreement shall not be considered to supersede the specific contractual terms of the Separate Agreement. If there is any contradiction between the terms of the Separate Agreement and this Agreement, then the terms of the Separate Agreement shall take precedence over the contradictory terms in this Agreement with respect to the subject matter of such Separate Agreement. You should save a copy of this Agreement for your records.
Use of Evernote Business Service
After successfully completing the account creation process and confirming acceptance of this Agreement, Evernote will enable Customer to access an Evernote Business Administrator Account ("Administrator Account"), which will include a console ("Admin Console") that will permit Customer to perform a number of administrative functions relating to Customer's Evernote Business Account, end users (each, an "End User") and Customer's business notebooks (each, a "Business Notebook"), including, but not limited to, granting access, exporting account data, and suspending or terminating End User access to Business Notebooks.
When an End User creates a notebook, the End User will be able to choose whether the notebook will be a personal notebook, which is controlled by the End User ("Personal Notebook"), or a Business Notebook, which is controlled by Customer. Customer acknowledges that it will not have any control over an End User's Personal Notebooks.
Customer acknowledges that providing an End User authority to create a Business Notebook, or obtain access to an existing Business Notebook, enables such End User to store data, text, images, software, sounds, graphics, video, messages, tags and other materials, in a variety of forms and technical structure ("Content") in such Business Notebook. Customer also acknowledges that an End User may copy, transfer or otherwise export Content from the Business Notebooks they are permitted to access and that while any suspension or termination of access to Business Notebooks will prevent the End User from accessing the previously accessible Business Notebooks, it will not delete or otherwise affect any Content that such End User had previously copied from or transferred out of the Business Notebooks.
Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written statements made by Evernote regarding future functionality or features.
Customer is responsible for (a) administering all End Users' access to Business Notebooks through the Admin Console; (b) maintaining the confidentiality of the password of each Administrator Account; (c) maintaining accurate and current account and contact information for each Administrator Account; and (d) ensuring that any and all use of the Administrator Account(s) complies with this Agreement and applicable laws. Customer may grant administrative privileges to multiple Customer personnel (each, an "Administrator"), and shall be solely responsible for ensuring that it has designated necessary and appropriate individuals as Administrators and for removing administrative privileges from individuals who no longer require administrative privileges.
Customer acknowledges and agrees that prior to an End User using the Evernote Business Service, Evernote will require each End User to accept Evernote's Terms of Service, and such Terms of Service will govern each End User's use of Evernote Business. Customer acknowledges that a violation of the Terms of Service by an End User may result in the termination of such End User's personal account and Customer's Evernote Business Account. Customer shall not make any representation, warranty or guaranty for or on behalf of Evernote, or otherwise obligate Evernote in any manner, to any End User.
Customer will prevent unauthorized use of its Evernote Business Account or Business Notebooks and immediately terminate any unauthorized use of which it becomes aware. Customer will promptly notify Evernote of any unauthorized use of or access to the Evernote Service of which it becomes aware.
Customer will not, and will ensure that End Users or third parties do not: (a) offer for sale or lease, sell, resell or lease access to the Evernote Service through the Evernote Business Account; (b) attempt to reverse engineer the Evernote Service or any software or other component used therein; (c) use the Evernote Business Service in a manner or under circumstances where use or failure of the Evernote Business Service could lead to death, personal injury or environmental damage; or (d) use the Evernote Business Service in a manner that would violate applicable laws protecting an individual's privacy rights, health or financial data, including the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act and its implementing regulations, the Privacy Rule and the Safeguards Rule or the Dodd-Frank Wall Street Reform and Consumer Protection Act, including the regulations issued thereunder, and as each may be amended from time to time; or (e) attempt to create a substitute or similar service through use of, or access to, the Evernote Service or Evernote Business.
Third Party Requests
Customer acknowledges and agrees that, as between the parties, it is responsible for responding to a request from a third party for records relating to Customer's or an End User's use of, or Content contained within, Evernote Business (a "Third Party Request"). If Evernote receives a Third Party Request (including but not limited to criminal or civil subpoenas or other legal process requesting Customer or End User data), Evernote will, to the extent allowed by the law and by the terms of the Third Party Request, direct the Third Party to Customer to pursue the Third Party Request. Evernote retains the right to respond to Third Party requests for Customer data where Evernote determines, in its sole discretion, that it is required by law to comply with such a Third Party request.
Customer may select its method of payment through the Admin Console. All payments under this Agreement are subject to Evernote's then-current terms and conditions governing payments ("Commercial Terms"), as published at Evernote's web site.
Customer is responsible for any taxes, including, without limitation, sales, use, excise, added value, withholding and similar taxes, as well as all customs, duties or governmental impositions, excluding only taxes on Evernote's net income (collectively, "Taxes"), and Customer will pay Evernote all Fees due hereunder without any reduction for Taxes. If Evernote is obligated to collect or pay Taxes, Evernote will invoice Customer for the Taxes unless Customer provides Evernote with a valid tax exemption certificate, VAT number issued by the appropriate taxing authority and/or other documentation providing evidence that no tax should be charged. If Customer is required by law to withhold any Taxes from its payments to Evernote, Customer must provide Evernote with an official tax receipt or other appropriate documentation to support such payments.
Support and Maintenance
Evernote will provide support directly to the Administrator in accordance with the then-current terms and conditions governing the support Evernote provides for Evernote Business, as published at the Evernote Business web site at the time of any request for support (the "Evernote Business Support Terms").
Customer will, at its own expense, be responsible for providing support to its End Users regarding issues that are particular to their End Users' access of Business Notebooks (e.g., resetting passwords, suspending accounts, sharing Customer's notes, etc.). Customer will use commercially reasonable efforts to resolve any such support issues before escalating them to Evernote. If Customer cannot resolve a support issue as set forth above, Customer's Administrator may escalate the issue to Evernote, and Evernote will provide support in accordance with the Evernote Business Support Terms.
Evernote has implemented certain technical and organizational measures designed to prevent accidental loss of and unauthorized access to and use of Content stored in Evernote Business. However, Evernote does not guarantee that unauthorized third parties will be unable to obtain access to Evernote Business, and Customer acknowledges that all Content stored by Customer and its End Users in Evernote Business is done so at Customer's and its End Users' own risk. In addition, Customer is responsible for ensuring that it has backed up its Content in the event of any loss of Content stored in Evernote Business.
Evernote may, in its sole discretion, allow Customer to upload its logo or other trademarks (together, "Customer Trademarks") for display in the version of Evernote Business accessed by Customer's End Users, either in conjunction with Evernote's trademarks or as a Customer-branded service. Accordingly, Customer hereby grants Evernote a non-exclusive license to display, perform and distribute the Customer Trademarks and to modify (for technical purposes, e.g., making sure trademarks are viewable on smart phones as well as computers) such trademarks solely in connection with making Evernote Business available to Customer's End Users.
Reservation of Rights
Except as expressly set forth herein and in the Terms of Service, this Agreement does not grant either party any rights, implied or otherwise, to the other's intellectual property. No title to or ownership of or other right in or to Evernote Business or software provided by Evernote to access Evernote Business ("Evernote Software") is transferred to Customer under this Agreement.
Evernote will only be allowed to reference Customer on Evernote's website and in marketing materials if Evernote obtains Customer's written permission and provided that such reference shall not imply any affiliation, sponsorship or endorsement.
Warranty to Contract
Each party represents and warrants to the other that it has the requisite power and authority under its organizational charter and governing agreements (if any) to enter into this Agreement and perform in accordance with the terms herein. Customer further represents and warrants that the individual who completes the Evernote Business registration process and accepts this agreement through the Admin Console is authorized to do so on Customer's behalf.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN SECTION 14 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. EVERNOTE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT OF THE LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY HERETO, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES IN THIS AGREEMENT.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, EVERNOTE DOES NOT WARRANT THAT THE EVERNOTE SOFTWARE OR EVERNOTE BUSINESS SERVICE WILL MEET ALL REQUIREMENTS OF CUSTOMER OR ANY END USER, OR THAT THE OPERATION OF THE EVERNOTE SOFTWARE OR EVERNOTE BUSINESS SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE EVERNOTE SOFTWARE AND EVERNOTE BUSINESS SERVICE WILL BE CORRECTED. FURTHER, EVERNOTE IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM THE MODIFICATION, MISUSE OR DAMAGE OF ANY OF THE EVERNOTE SOFTWARE NOT DELIVERED BY EVERNOTE. EVERNOTE DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO THIRD PARTY SOFTWARE OR OTHER NON - EVERNOTE PRODUCTS.
Indemnification by Customer
To the maximum extent permitted by applicable law, Customer agrees to indemnify and hold Evernote, its subsidiaries, affiliates, officers, agents, employees, and partners harmless from and against any and all liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to claims (a) made by End Users; or (b) made by any third party relating to Customer's use and Customer's End Users' use of any of the Evernote Software or Evernote Business in violation of this Agreement, the Terms of Service or applicable laws. In the event of such claim, we will provide notice of the claim, suit or action to Customer using the contact information we have for the account, provided that any failure to deliver such notice to Customer shall not eliminate or reduce Customer's indemnification obligation hereunder, except to the extent Customer can establish that it was prejudiced by such failure.
Limitation of Liability
EXCEPT WITH RESPECT TO (A) CUSTOMER'S BREACH OF SECTION 2 OR 3 AND (B) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 16, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT OR IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS TERMINATION OR NON-RENEWAL AND (II) EACH PARTY'S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO EVERNOTE UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE INITIATON OF ANY CLAIM FOR DAMAGES.
This Agreement shall be effective upon the Effective Date and shall remain in effect until the end of the subscription period specified in the Admin Console (the "Subscription Period"), unless and until terminated in accordance with the provisions of Section 19.
At the end of the initial Subscription Period, the Subscription Period will automatically renew for an additional Subscription Period, except as set forth below. Customer will pay Evernote the then-current Fees due for the Subscription Period. At any time prior to the end of the initial Subscription Period or any subsequent Subscription Period, Customer may cancel its Evernote Business subscription or reduce the number of accounts with access to Evernote Business though the Admin Console, which cancellation or reduction shall be effective as of the end of the then-current Subscription Period for the immediately following Subscription Period.
Customer may terminate this Agreement at any time through the Admin Console, provided that in no circumstances will Customer be entitled to any refund for Fees it has paid or any credit against Fees that are due to Evernote as of the date of such termination. Evernote may terminate this Agreement by providing sixty (60) days written notice to Customer at the contact information we have for the account and will refund the prorated portion of any prepaid Fees applicable to the period after the effective date of termination.
In addition, either party may terminate this Agreement in the event the other party commits any breach or default of the material terms of this Agreement, and fails to remedy such breach or default within thirty (30) days after written notice of such breach or default from the non-breaching or non-defaulting party. Notwithstanding the foregoing, (i) either party may terminate this Agreement immediately in the event of a material breach by the other party of its obligations under Section 10 and (ii) Evernote may terminate this Agreement immediately in the event of a material breach by Customer of its obligations under Sections 2 or 3. If Customer terminates this Agreement for breach by Evernote, Customer's sole and exclusive remedy and the entire liability of Evernote for such breach will be a refund of fees paid by Customer to Evernote under this Agreement.
If Customer: (i) becomes insolvent; (ii) voluntarily files or has filed against it a petition under applicable bankruptcy or insolvency laws which Customer fails to have discharged or terminated within thirty (30) days after filing; (iii) proposes any dissolution, composition or financial reorganization with creditors or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to all or substantially all assets or business of Customer; or (iv) Customer makes a general assignment for the benefit of creditors, Evernote may immediately terminate this Agreement by giving a termination notice.
Termination of this Agreement shall, as of the effective date of such termination, terminate Customer's and its End Users' access to Evernote Business and all other rights granted to Customer hereunder; provided, however, that any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination. Upon termination by Evernote on less than thirty (30) days' notice, and unless prohibited by law, Evernote will provide a mechanism for Customer to download or export the information that Customer has uploaded using Evernote Business within a limited period of time.
The following provisions of this Agreement shall survive the termination of this Agreement: Sections 2, 3, 4, 5, 6, 8, 10, 11, 12, 14, 15, 16, 17, 19 and 20.
Notices. Any notice required or permitted to be given hereunder shall be given in writing by personal delivery, by e-mail or by world-recognized courier delivery as follows:
If to Customer:
At the then-current address provided by Customer through the Admin Console
If to Evernote Corporation:
305 Walnut Street
Redwood City, CA 94063
Attn: General Counsel
With a copy to
If to Evernote Brasil:
Evernote Do Brasil Servicos De Aplicacoes Ltda
Avenida Paulista, no 2.300
Edifício São Luiz Gonzaga
CEP: 01310-300, São Paulo/SP
Attention: Legal Notice
With a copy to
If to Evernote GmbH:
8006 Zurich, Switzerland
Attention: Legal Notice
With a copy to
The date upon which such notice is delivered shall be deemed to be the date of such notice, irrespective of the date appearing thereon. A party, through the Admin Console (if Customer) or upon written notice to Customer (if Evernote), may change the addresses, individuals and/or titles to which notices shall be sent.
Governing Law. If Customer is headquartered in the United States or Canada, this Agreement shall be governed by and construed as an instrument under seal in accordance with the laws of the State of California (U.S.A.) governing contracts executed and to be performed therein, but without regard to any choice of law provisions. If Customer is headquartered in Brasil, this Agreement shall be governed by and construed as an instrument under seal in accordance with the laws of Brasil governing contracts executed and to be performed therein, but without regard to any choice of law provisions. If Customer is headquartered outside the United States, Canada and Brasil, this Agreement shall be governed by and construed as an instrument under seal in accordance with the laws of the Switzerland governing contracts executed and to be performed therein, but without regard to any choice of law provisions. This Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
If Customer is a government or an agency or other unit of government located in the United States (a "US Government Customer") and the law establishing or otherwise governing such Customer expressly requires Customer to enter into contracts under a particular law and/or prohibits any choice of law provision imposing any law other than the law under which Customer is authorized to act (the "Mandatory Law"), then the preceding paragraph shall not apply with respect to the US Government Customer's use of the Evernote Business Service while performing in its official government capacity.
If the Mandatory Law applicable to any US Government Customer prohibits such Customer from agreeing to the Arbitration Agreement in the Terms of Service, then the Arbitration Agreement shall not apply to the extent of such prohibition and with respect to use of the Evernote Business Service in its official government capacity.
Agreement, Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be enforceable by each of the parties and their permitted successors and assigns. Except as set forth in the immediately following sentences, neither party shall assign this Agreement or any right or interest under this Agreement, nor delegate any obligation to be performed under this Agreement, without the other party's prior written consent. This Agreement shall inure to the benefit of, and be binding upon, any legal successor to all or substantially all of the business and assets of either party, where such succession occurs in connection with a merger, sale of assets, corporate restructuring or otherwise by operation of law; and Evernote reserves the right to assign this Agreement to any Evernote affiliate or successor. If Customer desires to request Evernote to consent to an assignment of this Agreement, Customer shall send a formal request for consent by notice to Evernote, and should send a message to Evernote through the Admin Console setting forth details concerning the requested assignment. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective. Customer shall ensure that it provides the then-current passwords for the Administrator Account to any successor or assignee under this Agreement as, notwithstanding any such assignment, Evernote shall not provide any passwords to Customer's Administrator Account to any party.
No Relationship. No agency, partnership, joint venture or employment is created between the parties as a result of this Agreement. Except as specifically provided herein, neither party is authorized to create any obligation, express or implied, on behalf of the other party, nor to exercise any control over the other party's methods of operation.
Force Majeure. If either party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.
Construction. The headings in this Agreement have been inserted for convenience and shall not modify, define or limit the express provisions of this Agreement. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require. The parties hereto confirm that (i) they each had the opportunity to review this Agreement with legal counsel of their own choosing and (ii) they understand the terms of, and voluntarily and knowingly enter into, this Agreement with the intent of being legally bound by the terms hereof.
Waiver and Amendment. Evernote, in its sole discretion, may amend this Agreement at any time, and in such case, Evernote will publish a new version of the Agreement ("Amended Agreement") on the Evernote Business website. In addition, Evernote will provide Customer with at least 30 days advance notice by e-mail (sent to the address Customer has provided to Evernote) of the change to the Agreement, except that if an update to the Agreement is required to satisfy applicable legal requirements, the Amended Agreement may be effective with less advance notice, as indicated in Evernote's communications about the Amended Agreement. Customer's continued use of Evernote Business after the effectiveness of any update will be deemed to represent Customer's consent to be bound by, and agreement with, the terms of the Amended Agreement. If the Amended Agreement includes any material adverse changes to Customer's rights or obligations and Customer does not wish to continue using Evernote Business under the terms of the Amended Agreement, Customer may terminate the Agreement by providing Evernote written notice within thirty (30) days of being notified of the availability of the Amended Agreement. In the event of such termination, Customer may request a partial refund, and Evernote will refund the prorated portion of any prepaid Fees applicable to the period after the effective date of termination. Otherwise, no waiver, amendment or modification of any provision of this Agreement, and no variance from or addition to the terms and conditions of this Agreement in any purchase order or other written notification, shall be effective unless in writing and agreed to by the parties hereto. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of such right, power or remedy. No waiver of any term, condition or default of this Agreement shall be construed as a waiver of any other term, condition or default. This Agreement will not be supplemented or modified by any course of dealing or usage of trade.