Terms of Service
Evernote Terms of Service
Effective Date: August 21, 2024
Welcome to Evernote! We invite you to access our websites and use the Evernote Service, but please note that your invitation is subject to your agreement with these Terms. This document describes in detail your rights and our rights relating to the provision of the Evernote Service, so please review these Terms carefully. Capitalized terms that are not defined in this document are defined in our Glossary.
What Are the Terms of Service?
The Terms of Service constitute a contract between you and us. The Terms of Service include the provisions set forth in this document and in the Evernote Commercial Terms, User Guidelines, IP Compliance Program, Supplemental Terms, and if applicable the Evernote Business Agreement or Evernote Teams Agreement, and other terms or conditions that may be presented by us and accepted by you from time to time in connection with specific Evernote Service offerings (all of which we collectively refer to as the “Terms”).
IF YOU RESIDE IN THE UNITED STATES OR ARE OTHERWISE SUBJECT TO THE U.S. FEDERAL ARBITRATION ACT, THESE TERMS ALSO CONTAIN A MANDATORY AND BINDING INDIVIDUAL ARBITRATION AGREEMENT AND CLASS-ACTION WAIVER WHICH MEANS THAT MOST DISPUTES BETWEEN YOU AND US WILL BE RESOLVED IN BINDING, INDIVIDUAL ARBITRATION AND NOT BY MEANS OF A CLASS ARBITRATION, A CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR A JURY TRIAL. (SEE THE SECTION FURTHER BELOW IN THESE TERMS TITLED “WHAT DO I DO IF I THINK I HAVE A CLAIM AGAINST EVERNOTE?”). YOU MAY OPT OUT OF THE ARBITRATION REQUIREMENT WITHIN 30 DAYS OF ACCEPTING THESE TERMS OR WITHIN 30 DAYS OF THE AVAILABILITY OF THIS OPT-OUT, WHICHEVER IS LATER. INSTRUCTIONS FOR OPTING OUT ARE IN THE SAME SECTION FURTHER BELOW.
If you do not agree to these Terms, you do not have the right to access or use the Evernote Service. If you do register for or otherwise use the Evernote Service you shall be deemed to confirm your acceptance of the Terms and your agreement to be a party to this binding contract.
By using the Evernote Service, you acknowledge the Privacy Policy, including, without limitation, the use and treatment of the Content in your account and your personal information in accordance with such Privacy Policy.
What Is the Evernote Service?
The Evernote Software and other products, services and websites made available to you by Evernote, including downloadable applications, App Center, User Forum, and Help & Learning are collectively referred to in these Terms as the “Evernote Service.” In exchange for being enabled to use the Evernote Service, you agree to abide by these Terms.
If This Is a Contract, Who Are the Parties?
You, the Account Holder, are one party to this contract. (An Account Holder is the person or entity who has contracted with Evernote.)
If you reside anywhere other than in Brazil, then Evernote Corporation, a Delaware corporation headquartered in California, USA is the distributor of the Evernote Service and is another party to this contract. If you reside in Brazil, then Evernote do Brasil Serviços de Aplicações Ltda., a Brazilian company headquartered in the city of São Paulo, State of Sao Paolo, Brazil (“Evernote Brasil”) is the distributor of the Evernote Service and another party to this contract instead of Evernote Corporation. Additionally, Bending Spoons S.p.A., an Italian company headquartered in Milan, Italy (“Bending Spoons”), is the owner of the Evernote Software and is a party to this contract in that capacity. Evernote Corporation, Evernote Brasil, and Bending Spoons may be referred to in these Terms, when applicable, as “we” and “us.”
On some occasions, you may be purchasing products or service subscriptions from an authorized reseller. Please review our Commercial Terms for information about additional contract terms relating to such purchases.
Is This the Only Contract That Applies to the Evernote Service?
It depends upon how you interact with the Evernote Service and our software applications. If you install any Evernote Software on your computing devices, you may be asked to agree to an end user license agreement. If you pay for an Evernote subscription, you will be asked to agree to the Commercial Terms. If you use related Evernote products or services (such as Evernote Teams) or participate in our User Forum, you may also need to enter into a separate agreement with us (usually by clicking “accept” or “agree”). We refer to each of these as a “Separate Agreement.” If that happens, the Separate Agreement shall take precedence if there is a conflict between those terms and this Terms of Service document, to the extent of such conflict and with respect to the particular subject matter of that Separate Agreement.
Will These Terms Ever Change?
These Terms may be amended as new features, technology, or legal requirements arise, so please check back from time to time. If we make a significant change, we’ll notify you and, where required, seek your consent.
If we do update these Terms, you are free to decide whether to accept the updated terms or to stop using the Evernote Service (see “How is My Account Closed” below); your continued use of the Evernote Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described here, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement expressly amending these Terms and bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.
What Do I Have to do to Use the Evernote Service?
First, you need to create an Evernote Service account. You create an account by providing us with an email address and creating a password. (Some older accounts also required a username.) We refer to this as your “Basic Subscriber Information”. We encourage you to use a distinct and non-obvious password that is different from passwords you use for any other service. You are responsible for maintaining the accuracy, completeness and confidentiality of your Basic Subscriber Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Basic Subscriber Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Basic Subscriber Information secure. If you discover any unauthorized use of your Basic Subscriber Information or suspect that anyone may be able to access your private Content without authorization, you should immediately change your password and notify our Customer Support team.
Second, you will need to access your account through a web browser or by installing our client software on your computers, tablets and phones. Obtaining those devices and paying for their connectivity and data plans is your responsibility. We have no responsibility for the availability of the Internet and other telecommunication services necessary to access the Evernote Service.
Can I Share My Account with Someone Else?
Evernote Service accounts should not be shared. If you share your Basic Subscriber Information with anyone, that other person may be able to take control of the account, and we may not be able to determine who is the proper Account Holder. We will not have any liability to you (or anyone you share your Basic Subscriber Information with) as a result of your or their actions under those circumstances. Since you may use a free Evernote Service account, and since the Evernote Service provides a number of mechanisms to allow you to share your account Content with others, we strongly urge you not to share your information with anyone, unless you are doing so as part of your estate planning purposes, as discussed below.
Once I Have an Account, What Are My Rights in the Evernote Service?
Once your account is created and you accept these Terms, you may access and use the Evernote Service subject to these Terms, for so long as you are not barred from receiving the Evernote Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to these Terms. In addition, you are granted a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Evernote Software provided to you for the sole purpose of enabling you to use the Evernote Software and enjoy the benefit of the Evernote Service, subject to any applicable license terms provided with the Evernote Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in the Evernote Software or the Evernote Service.
Evernote’s Data Protection Laws Say My Data Is Mine – What Does That Mean?
You retain copyright and any other rights you already held in your Content before you submitted, posted or displayed it on or through the Evernote Service. But you do have to grant us a limited license, as described below, so we can make your data accessible and usable on the Evernote Service. Other than this limited license and other rights you grant in these Terms, we acknowledge and agree that we do not obtain any right, title or interest from you under these Terms in any of your Content.
What Is the License I Have to Grant to You?
In order to allow us to operate and distribute the Evernote Service, you must provide certain limited license rights to process your Content that is covered by intellectual property rights so that technical actions taken in operating the Evernote Service are not considered legal violations. For example, copyright laws could prevent us from processing, maintaining, storing, backing-up and distributing certain Content, unless you provide these rights. Accordingly, by using the Evernote Service and uploading Content, you are granting us a license to display, perform and distribute your Content and to modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) and reproduce such Content to enable us to operate and offer the Evernote Service. You also agree that we have the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as your Content is stored with us), and include a right for us to make such Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Evernote Service, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if we determine such access is necessary to comply with our legal obligations.
If you elect to use any third-party service or application that is integrated with the Evernote Service, you also agree that the licenses granted to us in the preceding paragraph shall apply to Content that is submitted or uploaded through such third-party service or application. If the third-party service or application you elect to use would access or extract Content, you grant us the right and license to enable third-party access to and extraction of your Content. We do not assume any responsibility for, or liability on account of, the actions or omissions of such third-party applications or service providers.
As we rely upon your rights to upload and distribute your Content, you represent and warrant that (1) you have the unfettered legal rights and authority to submit your Content to the Evernote Service, to make any other use, publication or other distribution of that Content in your use of the Evernote Service, and to grant the rights granted to us under these Terms; and (2) your Content complies with our User Guidelines and these Terms.
Finally, you understand and agree that, in performing the required technical steps to provide the Evernote Service to our users, we may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.
What Other Assurances Do I Have to Grant to You?
When you use the Evernote Service to send messages to an email address, to a telephone number via SMS, or through a social media account (e.g., Facebook or LinkedIn) that has not been linked to an Evernote account, the Evernote Service sends such messages on your behalf, and we rely on your representation that you have a direct relationship with the recipient(s) and that you are respecting the legal rights of the recipient(s) not to receive certain kinds of messages (such as harassing messages, unsolicited commercial messages, and unwanted SMS messages). Whenever you send any kind of message to a third party you represent and warrant that you are acting within the law and that you have prior consent from the recipient to send them such a message.
Are There Rules about What I Can Do on the Evernote Service?
Yes. Your use of the Evernote Service must be in accordance with these Terms. When it comes to your use of the Evernote Service, you agree that you are responsible for your own conduct and all conduct under your account. You agree to safeguard your password and to keep your Basic Subscriber Information current. You also agree that you will not share your account credentials or give others access to your account. In addition, you understand that all Content created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Evernote Service. This applies whether the Content is kept private, shared or transmitted using the Evernote Service or any third-party application or services integrated with the Evernote Service. Our User Guidelines provide more specific details regarding prohibited conduct on the Evernote Service. If we find that any shared Content in your account violates our Terms (including by violating another person’s intellectual property or privacy rights), we reserve the right to un-share or take down such content.
I’m Guessing You Have Some Rights Relating to the Evernote Service?
We do. They’re described here:
CONTENT RIGHTS.
While you own the Content you store within the Evernote Service (subject to third party rights), you acknowledge and agree that Bending Spoons (and its licensors) own all legal right, title and interest in and to the Evernote Software.
INTELLECTUAL PROPERTY RIGHTS.
In agreeing to these Terms, you also agree that the rights in the Evernote Service and Evernote Software, including all intellectual property rights, such as trademarks, patents, designs and copyrights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any Evernote Software, unless you are expressly permitted to do so under an open source license, we give you express written permission or you are otherwise legally permitted to do so notwithstanding this prohibition.
RIGHT TO MODIFY THE EVERNOTE SERVICE.
We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Evernote Service, including changes that may affect the previous mode of operation of the Evernote Service or Evernote Software. We expect that any such modifications will enhance the overall Evernote Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to certain features based on factors such as the device, operating system and/or client that you use, the nature or size of storage available to you, the number of transmissions, the ability to send or receive email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice. For example, if you use a free version of the Evernote Service, you will not enjoy all of the benefits provided to subscribers of Evernote's Paid Service offerings.
You also acknowledge that a variety of our actions may impair or prevent you from accessing your Content or using the Evernote Service at certain times and/or in the same way, for limited periods or permanently, and agree that we have no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Evernote Service. However, if you are a subscriber to a Paid Service and find that any such modifications or interruption of the Paid Service adversely affects you, you may notify our Customer Support team, explain the adverse impact the modification has created and, if you desire, request a termination of your Paid Service. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification, extend the duration of your Paid Service subscription for a period of time equal to the interruption and/or refund a portion of your Paid Service subscription fee equal to the remaining unused term of the Paid Service subscription, as we determine appropriate or as may be required by applicable law.
RIGHT TO ENGAGE THIRD PARTIES.
We engage certain affiliates or other third parties (“Service Providers”) to provide technical or other services relating to all or part of the Evernote Service, and you hereby agree that such involvement by these Service Providers is acceptable. In addition, we may contract with third-party resellers of the Paid Service and payment processors to enable payments in your local currency and payment systems. Please see our Privacy Policy to understand the extent to which any affiliate or third party may have access to your account information or Content and our Commercial Terms to understand our relationship with any reseller or payment processor.
RIGHT TO USE THIRD-PARTY SOFTWARE.
We may from time to time include as part of the Evernote Service and Evernote Software computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. We provide information about some of this third-party software here and within the particular Evernote Software. Evernote expressly disclaims any warranty or other assurance to you regarding such third-party software.
RIGHT TO UPDATE OUR SOFTWARE.
In connection with any modification of the Evernote Service, we may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Evernote Service. We will endeavor to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), we may require you to install the update to continue accessing the Evernote Service. In all cases, you agree we may deliver these updates to you (and you agree to receive them) as part of your use of the Evernote Service.
Do These Terms Apply to Evernote Business and Teams Users?
If you are using the Evernote Service as part of a Multi-Seat Account (Evernote Business or Teams), your use of the Evernote Service is governed by these Terms, except to the extent the Separate Agreement governing your account provides conflicting terms. If you subscribed through our online Evernote Business Agreement, your subscription will now be governed by the Evernote Teams Agreement. The Customer who has contracted with Evernote and the Administrator of the account (as “Customer” and “Administrator” are defined in the applicable agreement) have the responsibility to and agree to share the terms of such Separate Agreement with each individual End User whose user account is linked to the Evernote Teams Account.
If you are an End User of such an account, please note that the Customer of your account (such as your employer or organization) may have established its own rules regarding End Users’ access, use, disclosure, or retention of data stored in that account. If you registered your Individual Account in connection with a legacy Evernote Business Account before September 15, 2017, you can find more information on how to update that Individual Account with your personal email address in this Help and Learning article.
How Do We Respond to Copyright or Other Intellectual Property Violations?
We respond to clear and complete notices of alleged infringement of copyright, trademark or other intellectual property laws that satisfy the requirements in these Terms (which comply with the United States Digital Millennium Copyright Act and other applicable laws). If you believe that your intellectual property rights have been violated, please notify our Compliance team according to the instructions provided by our IP Rights Compliance Program and your notification will be processed in accordance with our policies and as contemplated by law. Account Holders who are deemed repeat infringers pursuant to Evernote’s Repeat Infringer Policy will, in appropriate circumstances, be terminated pursuant to that policy. Note that each owner of intellectual property is responsible for protecting their rights and taking any legal or other action they determine to be appropriate to do so, and we do not accept any obligation to take any particular action to enforce or protect any party’s intellectual property rights on their behalf.
Can Kids Use Evernote?
Evernote is not directed to minors, and any use by minors should only be done with the guidance, supervision and consent of their parents, guardians and/or authorized school officials. Further, we rely on parents and guardians to ensure minors only use the Evernote Service if they can understand their rights and responsibilities as stated in these Terms and our Privacy Policy.
Consistent with applicable law, we do not knowingly collect personal information from minors without parental consent. If we learn that we have inadvertently obtained information in violation of applicable laws prohibiting collection of information from children without such consent, we will promptly delete it.
Where Does My Data Go?
The Evernote Service is available worldwide, but your data is stored in the United States, as described in our Privacy Policy. If you use the Evernote Service, you acknowledge that you may be sending electronic communications (including your Basic Subscriber Information and Content), through computer networks owned or operated by Bending Spoons, its Service Providers, and other third parties located in the United States, Italy, and other countries. As a result, your use of the Evernote Service will likely result in interstate and possibly international data transmissions, and your use of the Evernote Service shall constitute your consent to permit such transmissions.
How is My Account Closed?
You may close your account with the Evernote Service at any time, for any reason (or no reason). When you close your Evernote account, your Content will be deleted automatically from the Evernote Service and your Content can no longer be accessed or recovered by you or Evernote. If you subscribe to a Paid Service, you will need to cancel your subscription pursuant to our Commercial Terms prior to closing your account.
We may act to temporarily limit your use of the Evernote Service, suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for suspending or closing your account may include, without limitation: (i) breach or violation of these Terms (including the User Guidelines) or any Separate Agreement, (ii) an extended period of inactivity (determined in our sole discretion), (iii) your nonpayment of any fees or other sums due Evernote or any other party related to your use of the Evernote Service, (iv) the discontinuance or material modification of the Evernote Service (or any part thereof) or (v) unexpected technical or security issues or problems or extensive Unsupported Use.
In most cases, in the event we elect to close your account, we will provide at least 30 days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on the Evernote Service servers (unless we determine that we are legally prohibited from providing such notice or enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Evernote Service through that account.
What Happens to My Account when I Die?
Our pledge to protect the privacy of your Content will continue, even after your death or incapacity. If you wish to enable someone to have access to your Content or other data in your account after you are no longer able to provide them access, you need to implement a process for providing your information to them. We will not provide your information, or your Content, to anyone, even next of kin, unless we determine that we are legally obligated to do so. We encourage you to include your Basic Subscriber information, with instructions on how to access your Content, in your will or other estate plans, so that anyone you wish to have access to your account will have the means to do so. Please see our Commercial Terms for information on terminating payment for Paid Services upon death or incapacity.
If I Have a Great Idea to Share with You, What Are My Rights?
When you submit any ideas, suggestions, documents and/or proposals relating to the Evernote Service (or other products or services) to us through the “Contact Us,” User Forum or Support interfaces or through any other channel or mechanism (collectively, “Contributions”), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) we are not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) we shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) we may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become our property without any obligation to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from us under any circumstances.
Does Evernote Serve Ads?
Our business model is to make the Evernote Service so valuable that our users will want to subscribe to a Paid Service. However, we may display advertisements and promotions on or in connection with the Evernote Service, some of which may be paid for by third parties. For more information, please see our Privacy Policy and Cookie Notice.
Some advertising or other messaging content we provide will be based upon information provided by third parties, and we shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any advertisements or other messages. Furthermore, your interactions with advertisers found on or through the Evernote Service, including, without limitation, all reliance upon advertising, all commercial transactions and legal obligations associated therewith, are solely between you and such advertisers.
What Else Do I Need to Know?
THIRD-PARTY LINKS, CONTENT AND PROGRAMMING.
We may include or recommend third party resources, materials and developers and/or links to third party websites, content and applications as part of, or in connection with, the Evernote Service. We may have little or no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites, content or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.
EARLY ACCESS SERVICES.
We may offer you the opportunity to access features in a preview or early access status (“Early Access Services”). If you choose to access and use any Early Access Services, you agree that: (i) you are responsible for any use and access to the Early Access Services originating from your account; (ii) the Early Access Services (including any feature names) are the property of Evernote; and (iii) the Early Access Services are experimental, pre-release, and may not function as expected.
Any feedback and other information provided by you or derived by us in connection with the Early Access Services may be used by us to improve or enhance the Evernote Service and we shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and otherwise exploit such feedback and information without restriction, provided that the public disclosure of any such feedback or information identifiable to you shall only be by the mutual agreement of you and us.
If you choose to use any Early Access Services, you agree that we shall have no obligation to support or provide support services to you relating to the Early Access Services or any updates thereto, even though we may make such services available to you at our sole discretion. You further agree that the Indemnity, Limitation of Liability and Disclaimer of Warranties, and Exclusions and Limitations sections below will apply to the Early Access Services too.
INDEMNITY.
You agree to indemnify and hold us, our subsidiaries, parents, affiliates, officers, agents, employees, advertisers, Service Providers and other partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Evernote Service, any violation of these Terms or any other actions connected with your use of the Evernote Service (including all actions taken under your account). In the event of such claim, we will endeavor to provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES.
To the maximum extent permitted by law, the Evernote Service Is Available “As Is.” YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
1. YOUR USE OF THE EVERNOTE SERVICE AND THE PURCHASE AND USE OF ANY SERVICES ARE ALL AT YOUR SOLE RISK.
2. THE EVERNOTE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
3. WE DO NOT WARRANT THAT (i) THE EVERNOTE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE EVERNOTE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE EVERNOTE SOFTWARE OR EVERNOTE SERVICE WILL BE CORRECTED.
4. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE EVERNOTE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
5. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US, OR THROUGH OR FROM THE EVERNOTE SERVICE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
6. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE, AND OUR SUBSIDIARIES, PARENTS, AFFILIATES, SERVICE PROVIDERS, AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE EVERNOTE SERVICE OR TO USE PROMOTIONAL CODES OR EVERNOTE POINTS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE EVERNOTE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE EVERNOTE SERVICE, OR PROVIDING ANY SERVICES RELATED TO THE OPERATION OF THE EVERNOTE SERVICE; (v) OUR ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR BASIC SUBSCRIBER INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE EVERNOTE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED OR OTHER THIRD-PARTY PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS; OR (x) ANY OTHER MATTER RELATING TO THE EVERNOTE SERVICE.
EXCLUSIONS AND LIMITATIONS.
NOTHING IN THESE TERMS (INCLUDING THE LIMITATION OF LIABILITY PROVISIONS) IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
If You Have to Send Me Notice of Something, How Will That Happen?
This is another reason why it’s important for you to make sure your Basic Subscriber Information is accurate, complete and up to date. We may provide you with notices by email (to the email address associated with your account), regular mail or postings on the website(s) related to the affected Evernote Service.
How Can I Send a Notice to You?
Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to us must be delivered by email to compliance@evernote.com. This email address may be updated as part of any update to these Terms. If you are unable to deliver notice via email, you may send a notice to us at the following address (as applicable to your Evernote Service distributor):
Evernote Corporation
4231 Balboa Avenue, #1008
San Diego, CA 92117 USA
Attention: Legal Notice
Evernote Do Brasil Serviços De
Aplicações Ltda
Federal Taxpayer Registration CNPJ/MF no 17.566.240/0001-50
Avenida Paulista, no 2.300
Andar Pilotis
Edifício São Luiz Gonzaga
CEP: 01310-300, São Paulo/SP
Attention: Legal Notice
Are There Countries Where I’m Not Allowed to Use Evernote?
You may not use or otherwise export the Evernote Service or any Evernote Software except as authorized by United States (“U.S.”) law and the laws of the jurisdiction in which the Evernote Service is hosted or where you use the Evernote Service. In particular, but without limitation, the Evernote Software may not be (i) exported or re-exported into any countries that are subject to U.S. economic sanctions or (ii) provided to or used by anyone on the U.S. Department of the Treasury's lists of Foreign Sanctions Evaders or Specially Designated Nationals or the U.S. Department of Commerce Denied Persons, Unverified, or Entity lists. By using the Evernote Service, you represent and warrant that you are not located in any such country or on any such list, and shall not use the Evernote Service, or provide access to or use of the Evernote Service to anyone, in any such country. In addition, you are responsible for compliance with applicable export control, economic sanctions and related laws when you travel across international borders and access your Content.
What Law Applies to My Use of Evernote?
If you are a resident of any country other than Brazil, these Terms and the relationship between you and us (including any dispute) shall be governed in all respects by the laws of the State of California, U.S., as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to its conflict of law provisions.
If you reside in Brazil, these Terms and the relationship between you and us (including any dispute) shall be governed in all respects by the laws of Brazil and shall be considered to have been made and accepted in Brazil, without regard to conflict of law provisions.
If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
What Do I Do If I Think I Have a Claim Against Evernote?
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND US TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND US FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND WE AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. WE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
THE PARTIES ACKNOWLEDGE THAT THE TERMS IN THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY’S CLAIMS.
FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT TO ARBITRATE ON AN INDIVIDUAL BASIS.
FIRST, LET US KNOW ABOUT YOUR COMPLAINT
We want to know if you have a problem so we encourage you to contact our Customer Support team if you have any concerns with respect to the operation of the Evernote Service or any Evernote Software, as we want to ensure that you have an excellent experience.
INITIATING A FORMAL CLAIM
If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved by the processes set forth in these Terms. The Evernote Service is being provided to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against us in any other manner, you shall be in violation of these Terms, and you agree that we shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse us for our reasonable costs incurred in defending against such improperly initiated claim.
Notice and Informal Resolution. You agree that prior to initiating any formal proceedings against us, including arbitration proceedings, you will send us a notice to our attorneys at legalnotice@evernote.com and state that you are providing a “Notice of Dispute.” We agree that prior to initiating any formal proceedings against you, including arbitration proceedings, we will send a notice to the email address associated with your account, and will state that we are providing a “Notice of Dispute.” Upon receipt of a Notice of Dispute, you and we shall attempt to resolve the dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent (“Informal Resolution Period”). If the dispute remains unresolved, either you or we may initiate formal proceedings according to these Terms.
Jurisdiction and Venue for Disputes Not Covered by Arbitration
Except where our dispute is being resolved pursuant to an arbitration (as provided below), if you are a resident of anywhere other than Brazil, you agree that any claim or dispute you may have against us must be resolved exclusively by a state or federal court located in San Diego County, California, U.S. You agree to submit to the exclusive personal jurisdiction of the courts located within San Diego County, California, U.S. (and, for the avoidance of doubt, to exclude the jurisdiction of any other court) for the purpose of litigating all such claims or disputes.
Except where our dispute is being resolved pursuant to an arbitration (as provided below), if you reside in Brazil, you agree that any claim or dispute you may have against us must be resolved exclusively by the courts in São Paolo-SP, Brazil. You agree to submit to the exclusive personal jurisdiction of the courts located within São Paolo-SP, Brazil (and, for the avoidance of doubt, to exclude the jurisdiction of any other court) for the purpose of litigating all such claims or disputes.
ALTERNATIVE DISPUTE RESOLUTION PROCESS
Unless you are subject to the Arbitration Agreement set out below, and subject to any applicable laws, if a claim arises between you and us where the total value of such claim is less than US$10,000, the party initiating the claim may elect to have the dispute resolved pursuant to a binding arbitration process that does not require attendance in person. This “Alternative Dispute Resolution Process” shall be initiated by either party sending notice to the other, in which event you and we agree to use our reasonable efforts to agree within thirty (30) days upon an individual or service to manage the Alternative Dispute Resolution Process (the “Arbitration Manager”) according to the following requirements: (i) neither party shall be required to attend any proceeding in person, (ii) the proceeding will be conducted via written submissions, telephone or online communications or as otherwise agreed upon, (iii) the fees for the Arbitration Manager (including filing fees, case management fees, and hearing fees), will be borne equally by the parties or be submitted to the Arbitration Manager to determine as part of the dispute, (iv) claims shall be asserted only on an individual basis and not as part of any purported class or representative action or proceeding, (v) claims that are part of “Coordinated or Mass Arbitration Filings” (as that term is defined in the Arbitration Agreement) shall be adjudicated to the greatest extent possible under applicable law by the procedures for Coordinated or Mass Arbitration Filings detailed in the Arbitration Agreement, and (vi) the judgment rendered by the Arbitration Manager may be entered in any court of competent jurisdiction for enforcement.
If you are a consumer resident of the European Union (EU), you may refer your complaint to the European Online Dispute Resolution Platform. Consumers may obtain more information by visiting the European Commission’s Online Dispute Resolution Platform site.
ARBITRATION AGREEMENT
If you reside in the United States or are otherwise subject to the U.S. Federal Arbitration Act, you and we agree that any and all disputes or claims that have arisen or may arise between us shall be resolved exclusively through final and binding individual arbitration - except for (1) any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights and (2) any dispute that falls within the jurisdiction of small claims court jurisdiction. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Binding Individual Arbitration
Subject to these Terms, claims between you and us may only be adjudicated by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), https://namadr.com, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”) and NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the “Rules”), as modified by these Terms.
If NAM notifies the parties in writing (email suffices) that it is not available to arbitrate any claim, then that claim may only be settled by binding individual arbitration conducted by American Arbitration Association (“AAA”), https://www.adr.org. For claims that must be arbitrated by AAA, if you are a “Consumer,” meaning that you only use the Evernote Service for personal, family, or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules apply to claims between you and us, as modified by these Terms. For claims that must be arbitrated by AAA, if you are not a “Consumer,” the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures apply to claims between you and us as modified by these Terms.
These Terms affect interstate commerce, and the enforceability of this section will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, these Terms, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any claim and to grant any remedy or relief that would otherwise be available in court, including the power to determine the question of arbitrability.
Arbitration Procedure and Location
You or we may initiate arbitration of any claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM (or with AAA if applicable).
Instructions for filing a demand for arbitration with NAM are available on the NAM website or by emailing NAM at commercial@namadr.com, and instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879. You will send a copy of any demand for arbitration to us by certified mail addressed to 4231 Balboa Avenue, #1008, San Diego, CA 92117 or by email to legalnotice@evernote.com. We will send any demand for arbitration to you by certified mail or by the email address associated with your Evernote account.
The arbitration will be conducted by a single arbitrator in the English language. You and we both agree that the arbitrator will be bound by these Terms.
For claims in which the claimant seeks USD $10,000 or less, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For claims in which the claimant seeks more than USD $10,000, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing is necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in either San Diego, California or New York, New York, unless the arbitrator determines that this would pose a hardship for you, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.
The arbitrator (not a judge or jury) will resolve all claims in arbitration. Unless you and we agree otherwise, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
An arbitration award and any judgment confirming it apply only to that specific case; they cannot be used or offered as precedent in any other case except to enforce the award itself. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.
Arbitration Fees. Except for circumstances that amount to “Frivolous or Improper Claims” as is described below, each party will be responsible for arbitration fees in accordance with the applicable Rules and these Terms.
Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs and fees incurred by the defending party—including arbitration, attorney, and expert fees—related to a claim if an arbitrator determines that (i) the claim was frivolous or (ii) the claim was filed for any improper purpose, such as to harass the responding party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
Confidentiality. If you or we submit a claim to arbitration, you and we agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. You and we agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
Coordinated or Mass Arbitration Filings. If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Claims” and will be treated as mass filings or multiple case filings according to the Rules, if and to the extent Coordinated Claims are filed in arbitration as set forth in these Terms. You or we may advise the other of your or its belief that claims are Coordinated Claims, and disputes over whether a claim meets the definition of “Coordinated Claims” will be decided by the arbitration provider as an administrative matter.
Unless otherwise provided by the Rules, to increase the efficiency of administration and resolution of arbitrations, you and we agree that in the event that there are twenty-five (25) or more Coordinated Claims, NAM shall (1) administer the arbitration demands in batches of 100 demands per batch (plus, to the extent there are less than 100 demands left over after the batching described above, a final batch consisting of the remaining demands), or in a single batch if there are fewer than 100 demands in total; (2) appoint one arbitrator for each batch; (3) be permitted to administer the batches concurrently; (4) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). Arbitration awards in one batch of arbitration demands shall have no precedential effect on subsequently administered batches.
You and we agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Arbitration Notices, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
California Law Shall Apply. In all arbitration proceedings, the arbitrator will decide the substance of all claims in accordance with the substantive laws of the State of California, U.S., including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Evernote Service users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the FAA.
Opting Out of the Arbitration Agreement. You have a right to opt out of this updated February 15, 2024 Arbitration Agreement by sending us written notice via email to optout@evernote.com within thirty (30) days of your first use of the Evernote Service or within thirty (30) days of the availability of this opt-out, whichever is later. If you do not opt out of the Arbitration Agreement, you shall be bound to arbitrate disputes with us. If you opt out of this updated February 15, 2024 Arbitration Agreement and were previously subject to the Arbitration Agreement in effect prior to February 15, 2024, then that prior Arbitration Agreement shall remain as the agreement between us. If you are a new user and did not previously consent to the prior Arbitration Agreement and you choose to opt-out of this updated agreement, then we will also not be bound by the Arbitration Agreement. (Note that if you were using an Evernote Service user prior to December 4, 2012, and formally elected to opt out of the Arbitration Agreement pursuant to the procedures set out in our Terms that were effective as of December 4, 2012, you are not subject to this Arbitration Agreement.)
YOU AND WE AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER EVERNOTE USERS.
Except with respect to the Prohibition of Class and Representative Actions and the requirements for Coordinated or Mass Arbitrations, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. However, if a court decides that the Prohibition of Class and Representative Actions or the requirements for Coordinated or Mass Arbitrations is invalid or unenforceable, then this entire Arbitration Agreement shall be null and void. The remainder of these Terms and this Section (What Do I Do if I think I Have A Claim Against Evernote?) will continue to apply.
CLAIMS ARE TIME-BARRED
You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Evernote Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
The provisions of this section, entitled “Claims Are Time-Barred” shall be deemed to constitute a separate written legally binding agreement by and between you and us.
SPECIAL NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Evernote Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us via email at legalnotice@evernote.com or at:
Evernote Corporation
4231 Balboa Avenue, #1008
San Diego, California 92117 USA
Attention: Legal Notice
Anything Else?
A couple of final, but important, points. First, these Terms constitute the entire agreement between you and us, and govern your use of the Evernote Service, except for, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and Evernote for the use of the Evernote Service as of the Effective Date indicated at the top of these Terms. If, through accessing or using the Evernote Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party. Second, you acknowledge and agree that each affiliate of Bending Spoons shall be a third-party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third-party beneficiary to these Terms. Finally, the section headings in these Terms are for convenience only and have no legal or contractual effect.
In the event of a conflict, the English language version shall govern.