Updated on: August 28, 2017 - What’s new »
This Evernote Business Agreement (this "Agreement") governs use of the Evernote Business service (the "Evernote Business Service" or "Evernote Business") by the entity agreeing to these terms ("Customer"). The Evernote Business Service is the version of the Evernote service, as defined in our Terms of Service, designed for businesses, teams, and other organizations.
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. 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).
An individual (“you”) is required to accept this Agreement on behalf of the Customer as a condition to creating an Evernote Business Account (Customer’s Account). The Agreement is effective as of the date Evernote makes the administrator account (“Administrator Account”) available to that individual acting on behalf of the Customer as the Administrator (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 and make legally binding 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.
1. 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 Administrator Account, which will include a console ("Admin Console"). Customer can perform a number of administrative functions relating to Customer's Evernote Business Account (“Customer’s Account”) through the Admin Console. These functions include but are not limited to, granting, suspending, or terminating End User access to Customer’s Account and exporting Content from Customer’s Account.
Customer acknowledges that providing an End User access to its Customer’s Account provides that End User with authority to access, create, or share Content in Customer’s Account. (“Content” means the text, images, and other data that has been put into, uploaded to, or stored in the Evernote service.) Customer also acknowledges that while an End User’s access to Customer’s Account has been granted by an Administrator (defined below), that End User may copy, transfer or otherwise export Content from Customer’s Account. The subsequent suspension or termination of an End User’s access to Customer’s Account will prevent the End User from continuing to access such Content in the Customer’s Account, but such suspension or termination of access will not delete or otherwise affect any Content that such End User may have previously copied from or transferred out of the Customer’s Account.
If an End User has a personal Evernote service account that is not associated with Customer’s Account, Customer acknowledges that it does not and will not have any access to, rights in, or control over such End User’s separate Evernote service account.
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.
2. Customer's Obligations
Customer is responsible for (a) payment of all fees relating to Customer’s Account (“Fees”); (b) administering all End Users' access to Customer’s Account and its Content through the Admin Console; (c) maintaining the confidentiality of the password of each Administrator Account; (d) maintaining accurate and current account and contact information for each Administrator Account; and (e) ensuring that any and all use of each Administrator Account 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 THAT IF NO ACCOUNT ADMINISTRATOR(S) IS/ARE ABLE OR WILLING TO FULFILL SUCH FUNCTION, AND/OR CUSTOMER OTHERWISE FAILS TO MAINTAIN CONTROL OF THE ADMINISTRATOR ACCOUNT(S), CUSTOMER MAY BE UNABLE TO ACCESS OR CONTROL ITS BUSINESS ACCOUNT; IN SUCH EVENT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ALL RESULTING LOSSES, COSTS AND EXPENSES. (See “Administrator Account Recovery” below for additional information.)
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 access to Customer’s Account or termination of Customer's 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 and Content 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.
3. Administrator Account Recovery
If Customer desires to establish a specific authorization process independent of the Administrator Accounts, such as written direction from a corporate officer or other designated representative of Customer, Customer may contact Evernote Customer Support to request agreement on such process (an “Approved Account Recovery Process”). Evernote reserves the right, in its sole discretion, to accept or reject such proposal. If Customer and Evernote have agreed upon an Approved Account Recovery Process, Customer may at any time or from time to time, request assistance using such Approved Account Recovery Process.
If Customer loses access to all Administrator Accounts and has not established an Approved Account Recovery Process, Customer should contact Evernote’s Support Team and request assistance.
If no person has credentials for an Administrator Account (a “Loss of Administration”), then Evernote may, in its sole discretion, determine whether an individual requesting access to an Administrator Account may be provided the credentials necessary to do so on behalf of Customer. In such event, an individual may attempt to demonstrate to Evernote authorization to act on behalf of Customer in regaining access to an Administrator Account by providing proof satisfactory to Evernote. Customer acknowledges and agrees that, in the event of a Loss of Administration, Evernote is empowered and authorized by this Agreement to use its discretion in determining whether to provide Administrator Account credentials to an individual offering proof of authority to act on behalf of Customer, and Customer hereby waives any and all claims against Evernote as a result of, or in any way relating to, such actions. Customer has been made aware of, and understands, the provisions of California Civil Code Section 1542 ("Section 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." Customer expressly, knowingly and intentionally waives any and all rights, benefits and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release.
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 Customer’s 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.
5. 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, Customer’s Account (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 information), 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 information where Evernote determines, in its sole discretion, that it is required by law to comply with such a Third Party request.
Customer will be required to select its method of payment when Customer sets up its Evernote Business Account. Administrators and Billing Contacts of Evernote Business accounts may change payment information for Evernote Business Accounts by contacting Evernote Customer Support. Billing Contacts will need to contact Customer Support and demonstrate to Evernote’s satisfaction control of the payment method last used for Customer’s Evernote Business Account to make any changes.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER AND ITS END USERS MAY LOSE ACCESS TO ALL CUSTOMER ACCOUNT CONTENT IN THE EVERNOTE SERVICE IN THE EVENT THAT CUSTOMER FAILS TO PROVIDE TIMELY PAYMENT. Such access will be restored upon receipt of full payment.
All payments under this Agreement are subject to the Commercial Terms.
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.
8. Support and Maintenance
Evernote will provide priority business support to Customer’s Administrator and End Users. 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 Customer’s Account (e.g., resetting passwords, suspending accounts, sharing Content, etc.). Customer will use commercially reasonable efforts to resolve any such support issues before escalating them to Evernote.
9. Data Security
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. In the event Evernote becomes aware that a third party has accessed without authorization Customer's Evernote Business account or has obtained without authorization the credentials of an Administrator(s) for Customer’s Evernote Business account, Evernote shall provide prompt notice to Customer’s Administrator(s) of such unauthorized access.
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 End Users of Customer's Account, 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 mobile devices as well as computers) such trademarks solely in connection with making Evernote Business available to End Users of Customer's Account.
13. 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 reference Customer on Evernote's website and in marketing materials only if Evernote obtains Customer's written permission.
15. 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 15 AND THE TERMS OF SERVICE 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.
17. 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 (i) any Loss of Administration or (ii) claims (a) made by End Users; or (b) made by any third party relating to Customer's use of 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.
18. Limitation of Liability
EXCEPT WITH RESPECT TO (A) CUSTOMER'S BREACH OF SECTION 2 OR 4 AND (B) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 17, (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 INITIATION OF ANY CLAIM FOR DAMAGES.
Unless Evernote and Customer mutually agree otherwise in a separate written addendum to this Agreement, 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 20.
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 End Users with access to Customer’s Account 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.
20. Termination and Refunds
Customer may terminate this Agreement at any time by deactivating its Evernote Business Account through the Admin Console. In the event of Customer’s termination, full or partial refunds may be available pursuant to our Refund Policy. In addition, we reserve the right to issue refunds or credits at our sole discretion, or as required by applicable law. If we issue a refund or credit in one instance, we are under no obligation to issue the same refund or credit in the future.
Evernote may terminate this Agreement by providing sixty (60) days written notice to Customer 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 11 and (ii) Evernote may terminate this Agreement immediately in the event of a material breach by Customer of its obligations under Sections 2 or 4. 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 Customer’s Account 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 Content in Customer’s Account within a limited period of time.
The following provisions of this Agreement shall survive the termination of this Agreement: Sections 2 - 7, 9 - 13, 16 - 21.
21. General Terms
b. 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 email address(es) for the then current Administrator(s) for the account.
If to Evernote Corporation:Evernote Corporation
305 Walnut Street
Redwood City, CA 94063
Attn: General Counsel
With a copy to firstname.lastname@example.org
If to Evernote Brasil:
Evernote Do Brasil Serviços de Aplicações Ltda
Avenida Paulista, no 2.300
Edifício São Luiz Gonzaga
CEP: 01310-300, São Paulo/SP
Attention: Legal Notice
With a copy to email@example.com
If to Evernote GmbH:
8006 Zurich, Switzerland
Attention: Legal Notice
With a copy to firstname.lastname@example.org
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.
c. 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.
d. 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.
e. 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.
f. 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.
g. 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.
h. 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 with a description of the changes made. In addition, Evernote will provide Customer with advance notice of any material change to the 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, our Refund Policy will apply. 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.