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Madrivo Terms

PUBLISHER TERMS & CONDITIONS

The following Terms & Conditions shall govern your ("Publisher")’s use of the network owned and operated by Madrivo Media, LLC ("Company"), and all the business dealings between the parties. These Terms & Conditions are considered effective as of the date of your electronic signature. By electronically signing and by Publisher’s continued use of Madrivo's portal, network, and related services, Publisher agrees to be bound by the following and to ensure that Publisher’s employees, agents, contractors, and/or sub-publishers abide by the following: 

DEFINITIONS
"Madrivo Media, LLC", "Madrivo", or "Company" means the company, its employees, officers, and agents. 
"Publisher", “Publishers”, "you" or "yours" means the person, persons or entity that holds an account with the Company to distribute advertisements via any method of the Network Advertisers. Terms referencing "Publisher” or "you" apply equally to Publisher's employees, agents, contractors, and sub-publishers. 
"Advertiser" means the person, persons or entity that holds an account with the Company to acquire "Leads/Actions" or "Sales" from the Company's Publishers.
"Campaign" means an advertising campaign provided by the Advertiser to the Company for distribution by you; the Campaign may include advertising creative materials.
“Click(s)” means a consumer’s click on an advertisement marketing Advertiser’s products and/or services that is distributed by Publisher.
"Leads/Actions" means the completion of all necessary steps by a consumer, as deemed by the Advertiser, so that the Advertiser may acquire the consumer's business, as a direct result of the actions of the Publisher. 
"Sales" means the purchase of a product of the Advertiser by a consumer as a direct result of the actions of the Publisher directing the consumer to do so. 
"Network" means Madrivo’s advertising network, online portal, its network equipment, databases, software programs, websites, and all of its domain names (i.e. www.madrivo.com). 

MINIMUM AGE
YOU MUST BE AT LEAST 18 YEARS OF AGE TO USE THE COMPANY’S NETWORK OR SIGN UP AS A PUBLISHER. By signing up as a Publisher, you attest that you and your employees, agents and contractors are at least 18 years of age.

PAYMENT
Publisher will be paid based on the terms of each individual Campaign; payment amount and terms will vary by Campaign and will be noted on each Campaign. Unless a different payment schedule is agreed to by Company, Publisher will be paid on a monthly basis via ACH, check or wire transfer. Publisher will have seven days from the receipt of a payment to dispute the accuracy of that payment; such dispute must be provided to the Company in writing. Final determination of revenue amounts generated by Publisher will be at the sole discretion of the Company. Publisher acknowledges that Company is only acting as an agent of the Advertiser and Publisher agrees that Company is not responsible for payments due to Publisher in the event that the Advertiser withholds or refuses payment. The Company agrees to use reasonable means by which to seek payment from Advertiser in obtaining the payment from Advertiser. Publisher agrees that in the event the Advertiser does not pay the Company, the Publisher's sole recourse will be against the Advertiser. Further, in the event that Publisher uses SMS/text messages or places any outbound calls to generate traffic hereunder (collectively, “Telemarketing”), or generates any other form of fraudulent or prohibited traffic, Publisher shall forfeit all unpaid commissions, immediately refund all paid commissions generated from Telemarketing, fraudulent and/or prohibited traffic, and its account will be terminated as set forth below.

TRACKING
All reporting of actionable events, including Leads/Actions/Clicks/Sales, shall be based on the Company's tracking and reporting system or the Advertiser's tracking and reporting system. Publisher must insert Company's tracking code or pixel as directed in order to have its Leads/Actions/Clicks/Sales tracked and paid. Where website integration tags are inserted in an advertisement, Publisher agrees not to alter or remove such tags.

COLLECTION AND USE OF PERSONAL INFORMATION
In order to access and use the Network, Publisher must provide accurate personal and/or company information to Company through this online registration process. You may be asked to provide your name, company name, physical address, billing address, telephone number, facsimile number, e-mail address, website address, tax payer ID number or social security number, billing or payment information, and other identifying information. Company may share your personal information which you provide with our affiliates, Advertisers, outside accounting firms, legal counsel, state and federal tax services and any government or law enforcement agency that requests such information.

DISCLAIMER OF WARRANTY
To the extent permitted by applicable law, THE COMPANY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, OF NONINFRINGEMENT, OR MERCHANTABILITY, OR OF FITNESS FOR A PARTICULAR PURPOSE, WITH REGARDS TO THE PUBLISHER’S USE OF THE NETWORK, USE OF OR DISPLAY OF ANY PROVIDED MATERIALS OR ADVERTISEMENTS, OR ANY AGREEMENT ENTERED INTO WITH PUBLISHER. No employee, agent, dealer or contractor of Company is authorized to modify this limited warranty nor to make any additional warranties. 

LIMITATION OF LIABILITY
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR (a) LOSS OF ANTICIPATED PROFITS, BUSINESS, REVENUE, GOODWILL OR OTHER LOSSES INCURRED IN CONNECTION WITH PUBLISHER’S MEMBERSHIP IN OR USE OF THE NETWORK, SUCH CLAIMS BEING EXPRESSLY WAIVED; (b) FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, DIRECTLY OR INDIRECTLY ARISING FROM THE PROVISION OF THE NETWORK; (c) CLAIMS BY THIRD PARTIES THAT PUBLISHER HAS VIOLATED ANY LAWS OR RIGHTS OF THIRD PARTIES, AS PUBLISHER AGREES TO INDEMNIFY THE COMPANY FROM ALL SUCH CLAIMS; (d) OR FAILURE IN PERFORMANCE OF THIS AGREEMENT DUE TO CAUSES BEYOND ITS REASONABLE CONTROL INCLUDING, BUT NOT LIMITED TO, WORK STOPPAGES, FIRES, CIVIL DISOBEDIENCE, RIOTS, REBELLIONS, ACTS OF GOD, LAWS, REGULATIONS, ACTS OF THE GOVERNMENT, ACTS OF OTHER THIRD PARTIES, AND SIMILAR OCCURENCES. In the event the Company is found liable for any act or inaction pursuant to these Terms & Conditions or the dealings between the parties; the Company's total cumulative liability for such breaches, losses, and injuries shall be the actual value of the damages or losses caused to the Publisher, but in no event shall this amount exceed the total revenue due to Publisher at the time of the breach, loss or injury. 

AFFILIATE WARRANTIES AND REPRESENTATIONS
Publisher hereby warrants and represents that:

A)	Publisher will comply with all state and federal laws and regulations, including the CAN-SPAM Act of 2003, as amended, and Cal. Bus. & Prof. Code §17529.5 (“Applicable Laws”). Publisher acknowledges and agrees that any threatened or actual violation of any Applicable Laws or any allegation of spamming by Publisher may result in immediate termination from the Network, withholding of future commissions, disclosure of Publisher's identity to the Advertiser, government agencies, law enforcement or other third parties and/or the pursuance of all appropriate legal remedies.  

B)	Publisher will not engage in any Telemarketing and acknowledges and agrees that all Telemarketing is strictly prohibited.

C)	If Publisher sends electronic mail messages (“Emails”):

a)	Publisher will only transmit Emails in compliance with Applicable Laws;

b)	Publisher will only transmit Emails to recipients who have provided their express affirmative consent to receive email advertisements and Publisher must maintain records of the email recipient’s express affirmative consent (“Opt-In”), including the website URL where the Opt-In was received and the website’s privacy policy, the time and date stamp of the Opt-In, and the Internet Protocol Address (“IP”) the recipient used to Opt-In, and Publisher will provide these Opt-In records to the Company and/or its Advertisers within one (1) business day of Company’s request;

c)	Publisher will comply with the following procedures to allow a recipient to request not to receive future Emails (the "Opt-Out Procedures"): (1) Publisher will include a clearly and conspicuously displayed, functioning return email address or other Internet-based mechanism that (a) a recipient may use to request not to receive future Emails from Advertiser at the email address where the email message was received and (b) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message; and (2) if a product, service or Internet site of Publisher’s is advertised or promoted in the Email, or to the extent requested by Company’s Advertisers, then Publisher will include a clearly and conspicuously displayed, functioning return email address or other Internet-based mechanism that (a) a recipient may use to request not to receive future Emails from Publisher at the email address where the message was received and (b) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message; 

d)	If a recipient makes a request using a mechanism provided by Publisher not to receive Emails from Publisher, then Publisher (1) shall not initiate, assist, or cause any person to initiate or assist, the transmission of Emails to the recipient more than 10 business days after the receipt of such request; and (2) shall not sell, lease, exchange, or otherwise transfer or release the email address of the recipient (including through any transaction or other transfer involving mailing lists bearing the email address of the recipient) for any purpose other than compliance with any Applicable Laws; 

D)	Publisher will ensure that Emails are not sent to any person who has requested not to receive Emails from Publisher or an Advertiser; and will scrub its data against all lists of recipients’ suppression lists which are provided by the Company or its Advertisers (collectively a “Suppression List”) prior to each and every transmission of Emails for the Company or its Advertisers. Failure to properly scrub against a Suppression List may result in termination of Publisher’s account, release of Publisher’s information to the offended Advertiser and withholding of all commissions due. Publisher agrees only to use the Suppression Lists for lawful purposes and to not sell, rent or share any Suppression List other than as provided for by law; 
E)	Publisher will not take any action to falsify the header information in any Emails including, but not limited to, the inclusion of header information that (1) includes an originating email address, domain name, or IP the access to which was obtained by means of false or fraudulent pretenses or representations; (2) fails to identify accurately a computer used to initiate the message because Publisher knowingly uses another computer to relay or retransmit the message for purposes of disguising its origin; or (3) is altered or concealed in a manner that would impair the ability of any person or Internet access service processing the message on behalf of a recipient, to identify, locate, or respond to Publisher or Advertiser or to investigate the alleged violation, or the ability of a recipient of the message to respond to Publisher or Advertiser and intentionally initiate the transmission of such Emails; 

F)	Publisher will register all domains it uses to send Emails with accurate information including a legally registered company name, address, email address, and phone number; and Publisher will not use domains that are privately registered or registered through a proxy service to send Emails;

G)	Publisher will not register any domain, IP, electronic mail or online user accounts using information that materially falsifies the identity of the actual registrant and intentionally initiate the transmission of Emails from any combination of such accounts or domains;

H)	Publisher will not falsely represent itself to be the registrant or the legitimate successor in interest to the registrant of any IPs and intentionally initiate the transmission of Emails from such addresses;

I)	Publisher will not falsify or forge any Emails’ transmission information or other routing information;

J)	Publisher will not use false or misleading subject lines in its Emails;

K)	Publisher will ensure that all Emails contain (1) a clear and conspicuous identification that the message is an advertisement or solicitation; (2) a clear and conspicuous notice of the opportunity to decline to receive further Emails from Publisher or Advertiser; and (3) a valid street address for the Advertiser and/or Publisher.

L)	Publisher will not display on their website(s) or disseminate material that: (i) is illegal, obscene, pornographic, shows nudity, indecent, offensive to the average reasonable person, threatening, abusive, libelous, defamatory, discriminatory, promotes racism, bigotry or hatred; (2) infringes on any intellectual property or is in violation of any copyright or trademark law; (3) is in violation of any right of privacy; (4) promotes harmful, unlawful, seditious, terrorism or other criminal activity; (5) could give rise to civil liability; than contains viruses, worms, a Trojan Horse or other harmful files; (6) spawns automatic pop-ups; that contains an unauthorized download to the end-user's computer; (7) is in violation of Applicable Laws; or (8) appears or purports to be from someone other than Publisher or that impersonates another person or entity. 

M)	Publisher's business, services, website, advertisements and links comply with all Applicable Laws. 

N)	Publisher will not use any fraudulent means to provide services to Company or generate advertising traffic or to inflate the number of Leads/Actions/Clicks/Sales which are generated.  Publisher will not participate in any spoofing, redirecting or trafficking from other websites in order to gain traffic.  Publisher will not use automated means to generate traffic. Publisher acknowledges and agrees that it will not be paid for any traffic generated through fraudulent means and it will only be paid for traffic generated through a real live person taking the required Action or submitting a Lead.  Company will not pay for any fraudulent traffic and may take appropriate legal action to recover any losses incurred; whether or not traffic is deemed fraudulent is in the sole and absolute discretion of the Company. Publisher must provide adequate proof upon Company’s request that traffic was not generated through fraudulent means however final determination will be in the discretion of the Company.  Publisher will forfeit all money due if Publisher engages in suspected or actual fraudulent behavior or violates any Applicable Laws.

O)	Publisher will comply with all state and federal laws regarding solicitations to minors and will only include age-appropriate materials in any Emails, advertisements or websites targeted to minors.

P)	Where advertisements are posted on Publisher’s website or where links to Publisher’s website are provided, Publisher will have a fully functional website (“under construction” sites are prohibited) that (1) displays actual content and is not just a list of advertisements or links; (2) has a detailed privacy policy which clearly informs the consumer what personal information is collected, how that information is used and gives an option to opt-out of the use of personal information, and otherwise complies with Applicable Laws; (3) does not make any unsubstantiated claims; and (4) does not appear or purport to be the website of the Advertiser or Company.  Publisher will comply with all laws regarding the use of testimonials and endorsements and will have appropriate disclaimers posted on their websites.

Q)	Publisher will not use incentivized traffic, incentivized ad placement, or provide any incentive to the recipient of any Email or other advertisement, for any purpose, including to induce the recipient to initiate an Action, generate a Lead, click on an advertisement or make a purchase. Incentives includes money, prizes, virtual currency, point systems and any other form of remuneration.  The only exception is for Campaigns that are clearly marked by the Company as allowing incentives and incentivized traffic.

R)	Publisher will comply with all rules, terms, policies, and any subsequent updates thereto, of any social networking site(s) on which it places ads or otherwise utilizes to provide services to Company or its Advertisers, including Facebook, Instagram, TikTok, and any other site, app or network.

S)	Publisher will not bid on any search terms that are trademarked, copyrighted or otherwise protected intellectual property of a third party, including the Advertisers.

T)	Publisher will review and strictly comply with the terms that are applicable to each Campaign, including allowed and prohibited traffic type(s), restrictions, and other terms (the “Campaign Terms”); Campaign Terms will be specified on an Insertion Order and/or in the Company’s online portal that it makes available to Publishers.  

U)	Publisher will not make any changes or modifications to the creative materials which are provided by Company to Publisher. Publisher acknowledges and agrees that it will use the creative materials, including creatives, From and Subject lines, footers, disclaimers, and other advertising materials exactly in the provided format and that any changes or modifications to those materials without the Company’s prior written approval will result in a forfeiture of all commissions generated.  Publisher acknowledges and agrees not to add any text or images, other than Publisher’s unsubscribe mechanism, to any email creatives including, but not limited to, any hidden or invisible text. 

V)	Publisher will obtain Company’s prior written approval before using any sub-publishers to perform services hereunder. Publisher understands that Company may withhold or refuse its approval of any sub-publisher(s) and may revoke its approval at any time and for any reason. Publisher will be solely responsible for all actions of its sub-publishers and any breach of these Terms & Conditions by a sub-publisher will be deemed a breach of these Terms & Conditions by Publisher.

INDEMNIFICATION, DEFENSE AND NOTIFICATION
Publisher agrees that it will indemnify, defend, and hold harmless the Company, its directors, officers, employees, contractors, successors, assigns, Advertisers, agencies, affiliates and clients (collectively, the “Covered Entities”) from and against any and all claims, actions, demands, liabilities, losses, damages, fines, costs, expenses, and fees (including actual attorney’s fees) (collectively, “Losses”) which arise out of or are related to Publisher’s services, actions, or inactions hereunder or its use of the Network, including but not limited to Publisher’s or its sub-publisher’s actual, suspected or alleged: (a) infringement or misappropriation of any intellectual property rights; (b) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity;  (c) offensive, harassing or illegal conduct; (d) violation of Applicable Laws; (e) sending of unsolicited or “spam” Emails; or (f) breach of these Terms & Conditions and/or the foregoing representations and warranties.  
Publisher will provide the Company with prompt written notice of any claim of which Publisher becomes aware which may affect any of the Covered Entities’ interests and Company shall have the right to control the defense of such claim, including all related settlement negotiations, with counsel of its own choosing, at Publisher’s sole cost and expense. In the alternative, Company may elect to tender the claim to Publisher for defense at Publisher’s sole cost and expense.
RELATIONSHIP OF PARTIES
Company and Publisher are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Company and Publisher. Neither Company nor Publisher will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

INTELLECTUAL PROPERTY 
The registered and unregistered copyrights, trademarks, service marks, trade names, graphics, logos, page headers, button icons, scripts, trade dress, or other indicia of trade origin of Company, its affiliates, or Advertisers may not be used in connection with any business, product, or service whose source is not Company, in any manner that is likely to cause confusion among customers, the trade, or the public, or in any manner that disparages or discredits Company or any of its affiliates.  All other copyrights, trademarks, service marks, trade names, and logos not owned by Company, its affiliates or advertisers that appear on the Company’s Network are the property of their respective owners, who may or may not be affiliates with, connected to or sponsored by Company or its affiliates. Nothing contained on the Network should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of the trademarks, service marks, trade names, graphics, logos, page headers, button icons, scripts, trade dress or other indicia of trade origin of Company, its affiliates or Advertisers displayed or contained in the  Network without the express, written consent of Company, its affiliates or Advertisers. Publisher grants to Company a limited license to use and display its name or logo on Company’s website, in promotional material, brochures, and other mediums of communication.  

LICENSE AND SITE ACCESS
Company grants Publisher a nonexclusive, nontransferable, limited right and license to access and make use of the Network and the material provided thereon, provided that Publisher fully complies with all Terms & Conditions. Publisher agrees not to download (other than page caching) any website contained in the Network, or otherwise modify the Network or its content. This license does not include any derivative use of the Network or its contents or software; any downloading or copying of account information or software for the benefit of anyone other than the Company; or any use of data mining, robots, or similar data gathering and extraction tools.  The website or any portion of the website contained in the Network may not be reproduced, duplicated, copied, sold, or resold. Publisher may not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including, without limitation, images, text, page layout, or form) of Company or its affiliates without its or their respective express, written consent. Publisher may not use any metatags or any other “hidden text” utilizing Company’s, its affiliates’ or Advertisers’ name(s) or trade names, trademarks or service marks without the express, written consent of Company.  Any unauthorized use terminates the permission or license granted by Company.

CONFIDENTIALITY
Publisher agrees not to disclose to any third party any Network content contained in any section of the Network that requires a username and password with which to access it. Publisher further agrees not to disclose to any third party the specific Campaigns or advertisements which are displayed on the Network, nor the type, nature or profitability of those Campaigns, or identifies of Company’s Advertisers.  Publisher is responsible for maintaining the confidentiality of their account and password and agrees to accept responsibility for all activities that occur under their account or password.  Publisher agrees to notify Company immediately of any unauthorized use or access of the Network of which they are aware. Publisher acknowledges that during the course of its relationship with the Company, Publisher will have access to confidential business information of the Company, its Advertisers, clients and other affiliates and agrees to maintain the confidentiality of that information during the term of this Agreement and for a period of three years following termination of this Agreement. Publisher acknowledges and agrees that in the event of any breach of this confidentiality provision may cause irreparable harm to Company and that Company may seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond. 

NON-CIRCUMVENTION AND NON-SOLICITATION
During the term of this Agreement and for a period of one (1) year following the termination of this Agreement, Publisher agrees not, directly or indirectly, for themselves or any other individual or entity, to circumvent Company’s relationships with its Advertisers, agencies and other clients (collectively “Clients”) by working directly with those Clients or otherwise soliciting the Clients. Publisher agrees not to work directly with any Client nor to state or imply that any Client should do business with them directly.  Publisher acknowledges and agrees that Company has invested significant time and resources into developing its relationships with its Clients and that any breach of this non-circumvention and non-solicitation provision would cause irreparable harm to the Company. Furthermore, Publisher agrees that it will not solicit to hire or employ any employee, contractor, publisher, affiliate, marketer, mailer, agent, or vendor of the Company without the Company’s prior written approval, which may be withheld in Company’s discretion. Publisher acknowledges and agrees that in the event of any breach of this non-circumvention and non-solicitation provision the Company may seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond.

TERMINATION
If Publisher breaches this Agreement, solicits any of the Company’s Advertisers, fails to properly scrub against provided Suppression Lists, engages in Telemarketing, violates any Applicable Law or infringes on any right of third parties, the Company may immediately terminate Publisher’s right to use the Network without any notice.  The Company reserves the right to terminate, with or without cause, Publisher's right to use the Network immediately and without any notice. If terminated due to Publisher’s, or its sub-publisher’s breach of any term of this Agreement or failure to comply with the Campaign Terms, the Company may withhold any commissions due to Publisher.
E-SIGN CONSENT
E-Sign Consent. To the extent electronically signed, you adopt the signature below as your electronic signature, and consent and agree that Company may provide you with electronic communications and disclosures (collectively, “Communications”) via email, by making them accessible on Company’s Network; and that your electronic signature on agreements and documents has the same effect as if you signed them in writing. If you wish to revoke/withdraw your consent at any time, please contact us at applications@madrivo.com. Withdrawal of your consent may result in termination of your access to Company’s Network. Any withdrawal will be effective only after a reasonable period of time for Company to process your withdrawal. As noted above, you are responsible for providing Company with true and accurate information, including your contact information. To access and retain the Communications, you will need the following: computer or mobile device with access/use of the internet or mobile connectivity and an operating system capable of receiving, accessing, and displaying Communications; a supported internet browser; sufficient storage space to save Communications and/or a printer to print them; and a valid email account and software to access such email account. You have the right to receive Communications in paper form. Please contact us at applications@madrivo.com to request a paper copy of any Communications at no charge. A request will not be treated as a withdrawal of consent to receive electronic Communications.
OFAC COMPLIANCE
You represent and warrant that you are: (i) not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”), and/or on any other similar list maintained by the OFAC pursuant to any authorizing statute, executive order or regulation; (ii) not a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or executive order of the President of the United States; (iii) not engaged in any activity or conduct that would breach any anti-corruption laws or anti-money laundering laws; and (iv) not currently under investigation by any governmental authority for alleged criminal activity relating to the OFAC, Patriot Act Offenses, anti-corruption laws or anti-money laundering laws.

ENTIRE AGREEMENT AND AMENDMENTS
This writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement concerning the use of the Network. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used in this Agreement.  No amendment or extension of this Agreement shall be binding unless in writing and signed by both parties. If either party is required to agree to online terms and conditions in order to access the other’s website or to access a tracking platform, downloading creative materials or for any other purpose, the terms of this Agreement shall supersede any online agreement entered into between the parties or subsequently entered into between the parties and the terms of such online agreement shall not apply.

THIRD PARTY BENEFICIARIES
Publisher understands and agrees that the Company’s Advertisers are express third party beneficiaries of this Agreement with full rights as such.  Advertisers are intended beneficiaries of this Agreement and may enforce the terms of this Agreement as if the Agreement was made directly between Publisher and the applicable Advertiser. This Agreement confers the same rights on the Company’s Advertisers as those rights of Company.

NO ASSIGNMENT

Publisher may not assign this Agreement or any rights hereunder without the express written consent of the Company.  This Agreement is binding on the parties’ respective successors and permitted assigns.

SEVERABILITY
If a court or arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.

WAIVER
Failure to invoke any right, condition or covenant in this Agreement by either party shall not be deemed to imply or constitute a waiver of any rights, condition or covenant and neither party may rely on such failure. No claim or right arising out of the breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of such claim or right unless the waiver or renunciation is in writing signed by the aggrieved party.

CONSTRUCTION

The use of any gender in these Terms & Conditions shall be deemed to include all genders, and the use of the singular shall include the plural and vice versa, wherever it appears appropriate from the context. For all purposes of these Terms & Conditions, unless otherwise expressly stated to the contrary, the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”. Headings used herein are for reference purposes only and neither limit nor amplify these Terms & Conditions. 

ARBITRATION, GOVERNING LAW, JURISDICTION, AND ATTORNEY FEES
These Terms & Conditions and all rights and obligations hereunder, including matters of construction, validity, and performance, will be governed by and construed according to the laws of the State of Nevada. In any action brought to enforce any provision of these Terms & Conditions, including through arbitration, the prevailing party shall be entitled to an award of reasonable attorney’s fees and costs. Except as to any injunctive relief sought hereunder by Madrivo, any dispute, claim, or controversy arising out of or relating to these Terms & Conditions and/or any Insertion Order, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate shall be determined by binding arbitration conducted before a single arbitrator in Clark County, Nevada, provided that at the request of either party, arbitration proceedings may be held electronically. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. Except as to an award of reasonable attorney’s fees and costs to the prevailing party, the arbitrator will have no authority to award damages other than actual damages, and may not award any incidental, indirect, or consequential damages, including damages for lost profits. Judgment upon the award may be entered in any court having jurisdiction thereof. This provision shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. With respect to injunctive relief and/or any action to enforce the arbitrator’s decision, the parties consent to the exclusive jurisdiction of the state or federal courts in Clark County, Nevada.  

By clicking ‘I agree to Madrivo’s Publisher Terms & Conditions’ to indicate your electronic signature, Publisher acknowledges that they have read these Terms & Conditions, understands them and agrees to be bound by and to honor the above Terms & Conditions.

Madrivo Terms

I agree to Madrivo’s Publisher Terms & Conditions

Everflow Terms

Service Terms Review - revised - clean
https://www.everflow.io/terms
Revised version as at 12-21-20




Everflow Service Terms
(Last updated December 2020)
The following terms and conditions (the "Service Terms"), together with the Order Form(s) to which these Service Terms are attached or incorporated, constitute the agreement (“Agreement”) between Everflow Technologies Inc. with its principal place of business at 530 Showers Drive Suite 7-302 Mountain View, CA 94040, USA (“Everflow”), and the customer identified in the Order Form (“Customer”).   
1. PARTIES 
In these Service Terms, the words "Everflow," "we," and "us" refer to Everflow Technologies Inc. The words "Customer" and "you" refer to the subscriber to the Platform Services as defined in the Order Form, whether an individual, corporation, or other entity. You may not use the Platform Services unless you accept these Service Terms and have the power and legal right to form a contract with us. Any individual subscribing to or using the Platform Services in the name of a company or other organization represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Service Terms.
2. DEFINITIONS 
The following terms and any others defined in these Service Terms will be interpreted according to the definitions given.
   1. "Authorized User" means you (if you are an individual) or an individual employee or agent of yours who has been assigned unique credentials to access and use the Platform Services, whether or not that individual is accessing or using the Platform Services at any particular time.
   2. "Everflow API" means the application programming interfaces provided by Everflow as a mechanism for access to the Platform Services.
   3. “Everflow Materials” means information and materials in any format provided by Everflow, including, without limitation, documentation, templates, instructions, professional services, FX Data (as defined herein), and reference materials and guidance.
   4. “Everflow Platform” means Everflow’s cloud platform that facilitates the Platform Services (as defined herein).
   5. “FX Data” means foreign exchange (“FX”) data from Open Exchange Rates Ltd. (https://openexchangerates.org/) and related currency conversions and calculations, provided by the Everflow Platform.
   6. "Order Form" means Everflow's online or written order form or account setup form, as agreed to by Customer and Everflow, that specifies the pricing for the use of the Platform Service, and that references these Service Terms.
   7. "Partner" means any third party authorized by Customer to access and use the Platform Services, or which supplies advertising or advertising inventory to Customer in connection with Customer's use of the Platform Services.
   8. "Platform Services" means the web-based advertising network, affiliate tracking, targeting, reporting and analytics services included in the services to be supplied by Everflow, as defined in the Order Form (and any applicable service description referenced in the Order Form) or separate terms that reference the Service Terms, that are facilitated by the Everflow Platform. For clarification, Platform Services include the Everflow EverXChange and Everflow Materials.
3. PLATFORM SERVICES
   1. Authorization. Subject to your compliance with the terms and conditions of these Service Terms, Everflow will provide your Authorized Users with access to and use of the Platform Services which you have purchased and for which you pay, solely for your internal business purposes and in accordance with Everflow's relevant end-user documentation. The Platform Services and Everflow API may be used only in accordance with the documentation and specifications provided by Everflow. You and your Authorized Users will access the Everflow API and Platform Services using the login credentials and Everflow API Keys assigned to you by Everflow. Everflow may monitor your use of the Everflow API to ensure quality, improve Everflow products and services, and verify your compliance with these Service Terms. Your use of the Platform Services is further subject to any usage limitations indicated in the Order Form or in Everflow's applicable service description referenced therein or provided by Everflow.
   2. Maintenance and Support. If the Order Form or Everflow's associated service description provides for Customer to receive maintenance and/or technical support in connection with the Platform Services, then (unless otherwise set forth in the Order Form or service description): (i) such maintenance will consist of access to new features or performance improvements in the Platform Services if and when Everflow makes any such features or improvements generally available to its subscriber base at no additional charge, and (ii) such technical support will consist of first-level telephone or email assistance in accordance with Everflow's Service Level Agreement (“SLA”), attached hereto as Exhibit A and incorporated herein by reference.
   3. Restrictions. You may not: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Platform Services or any associated software or materials; (ii) provide any third parties with direct access to the Everflow API or Platform Services; (iii) provide any third parties other than Partners with access to any of the Platform Services, or use any of the Platform Services for time sharing or similar purposes for the benefit of any third party; (iv) remove any copyright or proprietary notices contained in the Platform Services or any output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure or monitoring system provided or used by Everflow in connection with the Platform Services or Everflow API; (vi) access the Platform Services via any bot, web crawler or non-human user except to the extent the Everflow API permits such access; (vii) introduce into the Platform Services any software, virus, worm, "back door," Trojan Horse, or similar harmful code; (viii) access or use (or permit a third party to access or use) the Platform Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Platform Services or for any other benchmarking or competitive purposes; or (ix) interfere or attempt to interfere in any manner with the proper workings of the Everflow API or Platform Services, or engage in any activities that adversely affect the functionality or performance of the Everflow API or Platform Services. All rights in the Platform Services not expressly granted herein are reserved.
   4. Third Party Integrations. Everflow offers Customers the option of sending data and information to, and receiving data and information from analytics or other services provided by third parties ("Third Party Integration Providers"). Customer is solely responsible for establishing a contractual relationship with any such Third Party Integration Providers, independently of Everflow, and complying with the terms of such contractual relationship. Everflow shall not be responsible or liable for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data or any other harm to Customer or any other party caused by any Third Party Integration Providers, including without limitation, by Everflow's integration with such Third Party Integration Providers and the use of any data or information received from such Third Party Integration Providers. For clarification, Everflow shall not be responsible for any Third Party Integration Provider; Customer agrees that any claim relating to a Third Party Integration Provider may only be made against the related Third Party Integration Provider. 
   5. Third Party Services. Customer acknowledges that in connection with Platform Services, the Everflow Platform may facilitate the delivery of services of third parties service providers (“Third Party Service”) (“Third Party Service Provider”), where applicable, and agreed to in writing by the Customer, Third Party Service Provider and Everflow. Any Third Party Service shall be performed by the corresponding Third Party Service Provider in accordance with the corresponding Third Party Service Provider terms (“Third Party Terms”), to which Customer shall agree in advance, independently of Everflow; the Third Party Service Provider shall remain directly responsible to Customer for the performance of its Third Party Service. For clarification, Everflow shall not be responsible for any Third Party Service Provider or Third Party Service; Customer agrees that any claim relating to a Third Party Service Provider or Third Party Service may only be made against the related Service Third Party. 
   6. Third Party Service Provider Fees. Where applicable, and agreed to in writing by the Customer, Third Party Service Provider and Everflow, the Everflow Platform may facilitate the invoicing of Customer for its Third Party Service and Customer’s corresponding payments to the subject Third Party Service Provider.
4. CUSTOMER OBLIGATIONS
   1. Responsibilities in Using Platform Services. You are responsible for: (i) maintaining the confidentiality of any user IDs, passwords and other credentials associated with your account, (ii) all activities that occur with respect to your account, (iii) your use of the Platform Services and compliance with these Service Terms, and (iv) any Customer-furnished data. Further, you acknowledge and agree that you shall remain liable for all actions and omissions of your Authorized Users and Partners hereunder or under any applicable separate agreement.
   2. Advertising Obligations. You shall not, and shall cause each of your Partners not to, directly or indirectly, in connection with their business practices or activities, or in connection with any advertisements or properties on which advertisements appear: (i) facilitate or promote illegal, deceptive, or fraudulent activity, or contain content that is illegal; (ii) contain content that is or promotes activities that are, in Everflow's sole discretion, likely to generate liability for Everflow or negatively affect Everflow's reputation; (iii) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; or (iv) use the Platform Services to target advertisements to children under the age of 13 years (16 years in the EU).
   3. Correction; Suspension. If Customer's use of the Everflow API or Platform Services, or any advertising or advertising inventory properties are deemed by Everflow, in its sole discretion, to not meet the letter or spirit of the standards set forth in this Agreement, Everflow may request that Customer make changes to bring its practices and/or such content and materials into compliance. If Customer fails to make the necessary changes immediately upon request, and without limiting any of the other remedies available to Everflow at law or in equity, Everflow is authorized to remove the content or materials, and/or suspend any applicable campaign or Customer's access to the Platform Services, without liability to Customer, in its sole discretion. Customer agrees and acknowledges that Everflow shall have the right to audit, from time to time, Customer's use of the Everflow API, Platform Services, and the content and material Customer is promoting, distributing and/or displaying on or through the Platform Services or in connection with the use thereof. Everflow reserves the right to immediately suspend, in whole or in part, Customer's access to the Platform Services and Everflow's provision of the Platform Services in order to prevent imminent harm to Everflow or a third party, without liability to Customer, in its sole discretion..
5. DATA AND OWNERSHIP
   1. "Customer Data" consists of information input into the Platform Services by Customer or Customer's Authorized Users, any data collected by Customer through the use of the Platform Services, including without limitation Personal Data as defined herein, or any Partner, Customer, Authorized User or Partner behavior on the Platform Services, as captured by the Platform Services. Customer shall not collect and shall not enable the collection of Customer Data from individuals in connection with the utilization of the Platform Services without the prior express consent of such individuals in compliance with applicable laws and regulations. With respect to Customer Data collected by Customer from individuals, Customer will collect, process and disclose, and direct Everflow to process and disclose, such Customer Data only in accordance with all applicable laws and regulations, its privacy policy, and the requirements of these Service Terms.
   2. Personal Data. Any Customer Data consisting of personal information or personal data, as such terms are defined under applicable legislation and regulations, including the EU General Data Protection Regulation 2016/679  or the California Consumer Privacy Act (“Personal Data”, “GDPR”, and “CCPA” respectively), and the processing thereof, shall be governed under the terms and conditions set forth herein and in the Everflow Data Processing Addendum (“DPA”). A current version of the DPA is available at https://www.everflow.io/legal/DPA and is incorporated herein by reference. The DPA is an integral part of these Service Terms and the agreement between Customer and Everflow. Unless otherwise explicitly agreed in writing by the parties, it is agreed and acknowledged that with respect to any Personal Data, Customer shall be deemed the data controller and Everflow shall be deemed the data processor or service provider (as such terms are defined under applicable legislation and regulations, including the GDPR and CCPA).
   3. Prohibited Personal Data. Customer will ensure that Customer Data includes only those data elements explicitly permitted under the Everflow Privacy Policy and DPA (“Permitted Data Elements”). A current version of the Everflow Privacy Policy is available at https://www.everflow.io/legal/privacy-policy and is incorporated herein by reference. As between Customer and Everflow, Customer shall be liable for any Customer Data beyond the Permitted Data Elements, and Everflow shall have no obligations under these Service Terms or the DPA with respect to any such Customer Data. Without limiting the obligations of Customer elsewhere in these Service Terms or the DPA, unless otherwise expressly agreed in writing between Customer and Everflow, Customer will not provide or make available to Everflow: (i) “special categories of personal data” under the GDPR and CCPA; (ii) any data concerning racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, or health or sex life; (iii) any financial account information other than Customer’s own payment information; (iv) any government identification numbers; (iv) any information that Customer knows or reasonably should know concerns any individual under the age of sixteen; or (v) any data that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which Customer or Everflow operate, such as (by way of example only) the Health Insurance Portability and Accountability Act, the Children’s Online Privacy Protection Act, and the standards promulgated by the PCI Security Standards Council.
   4. Privacy. Customer will publish, and will advise in writing to its Partners that they must publish, a privacy policy that (i) discloses and obtains consent to the usage of third-party technology and the data collection and usage resulting from the use of the Platform Services (it being understood that this clause (i) will not be deemed to require those privacy policies to expressly identify Everflow or the Platform Services, unless otherwise required by applicable law or regulation); (ii) contains a conspicuous live hyperlink to an opt-out website that provides individuals the ability to or contains instructions as to how to opt out of interest-based advertising; and (iii) complies with all applicable laws and regulations.
   5. Treatment of Customer Data. Customer is ultimately responsible for making and keeping current copies of all Customer Data and related information. Everflow will retain Customer Data subject to any time or storage limitations set forth in Everflow documentation for the Platform Services, and may delete or decline to store Customer Data older than the prescribed age for deletion, or in excess of the disclosed storage limitation. Everflow shall not disclose the Customer Data to any third party except (a) as directed by Customer (including by Customer's selection of an optional third party data integration), (b) if such disclosure is made by Everflow in response to a court order, subpoena or other legal process, and provided that Everflow has given Customer reasonable notice of such court order, subpoena or other legal process, (c) if such disclosure is made to Everflow's service providers in connection with the operation of the Platform Services, or (d) if such disclosure is in aggregate non-personally identifiable form. Everflow shall use industry standard technology and practices to secure Customer Data. 
   6. Ownership. Everflow agrees that Customer will own all Customer Data, and that Everflow receives only the right to access the Customer Data solely in connection with the provision of the Platform Services to Customer. As between Everflow and Customer, the Platform Services and all software, data and technologies embodied in or used to provide the Platform Services, including any data and information other than Customer Data, and all intellectual property rights in or relating to any of the foregoing, are owned by Everflow. For clarification, unless otherwise expressly agreed to in writing by the parties, all suggestions, solutions, improvements, customizations, corrections, and other contributions provided by Customer regarding the Platform Services or Everflow Materials provided hereunder shall be owned by Everflow, and Customer hereby agrees to assign any such rights to Everflow.
6. TERM AND TERMINATION
   1. Duration and Renewal. Customer’s right to use the Platform Services under these Service Terms shall continue for the term set forth in each Order Form. 
   2. Termination. Unless otherwise set forth in an Order Form, each party shall have the right to terminate an Order Form upon thirty (30) days' notice. A party may terminate these Service Terms for a material breach by the other party that remains uncured for more than seven (7) days delivery of written notice of the subject breach. Your right to use the Platform Services will automatically terminate upon any termination of these Service Terms.
   3. Survival. The following provisions will survive expiration or termination (“Termination”) of these Service Terms: Sections 1, 2, 3.3, 3.4,4, 5, 6.3, 7 (to the extent of any outstanding payments), and 10 through 14, and such other provisions that by their nature are intended to survive Termination, shall survive Termination of this Agreement.
7. FEES AND PAYMENT
   1. Fees. In consideration for Everflow providing the Platform Services and any agreed-upon professional services as defined in the Order Form (“Professional Services”), Customer shall pay to Everflow the corresponding fees set forth in the Order Form.
   2. Invoices; Payment. Unless otherwise set forth in an Order Form, Everflow shall invoice Customer in arrears at the end of each calendar month for the fees accrued during such calendar month. Each invoice is due and payable thirty (30) days following the invoice date. Overdue payments will accrue interest at the lesser rate of one percent (1%) per month, or the highest rate of interest allowed by law. For clarification, in case of conflict between these Service Terms and the Order Form in regards to invoicing and payment terms, the Order Form shall prevail. All payments shall be made in US Dollars, unless otherwise specified in the Order Form. Customer is responsible for Everflow’s costs and expenses (including attorney fees) to collect past due amounts.
   3. Taxes. The fees specified in these Service Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, sales, services, and value-added) (collectively, "Taxes"). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than Everflow's U.S. federal and state income taxes.
   4. Non-Paying Platform Services Users. The obligations set forth in this Section 7 shall not apply to the extent Customer has been provided access to the Platform Services free of charge in furtherance of such Customer’s use of the Platform Services in connection with its relationship with another Everflow customer.
8. CONFIDENTIALITY
   1. Obligations. "Confidential Information" means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the Platform Services that should be reasonably understood to be confidential, including without limitation Customer Data. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization of the disclosing party, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Service Terms. The receiving party will promptly return or destroy the other party's Confidential Information upon request.
   2. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the disclosing party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section 8. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section 8 on account of making the required disclosure.
9. SERVICE LEVEL AGREEMENT
If Customer's subscription includes service-level commitments, and the Order Form accordingly specifies that Everflow's SLA applies, Customer will be entitled to the commitments and remedies set forth in such SLA as attached hereto and incorporated herein by reference to or referenced in the Order Form. The remedies expressly provided in the SLA are Customer's sole and exclusive remedy, and Everflow's entire obligation, with respect to any service-level violation.
10. DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE SERVICE TERMS (AND WITHOUT LIMITING REMEDIES TO WHICH CUSTOMER MAY BE ENTITLED UNDER THE SLA, IF APPLICABLE), THE PLATFORM SERVICES, PROFESSIONAL SERVICES AND EVERFLOW MATERIALS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EVERFLOW DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EVERFLOW MATERIALS DO NOT, AND ARE NOT INTENDED TO, CONSTITUTE LEGAL, FINANCIAL OR ACCOUNTING ADVICE. EVERFLOW MATERIALS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. EVERFLOW MATERIALS ARE NOT A SUBSTITUTE FOR PROFESSIONAL LEGAL, FINANCIAL OR ACCOUNTING ADVICE. IF YOU NEED LEGAL, FINANCIAL OR ACCOUNTING ADVICE, YOU SHOULD CONSULT WITH A DULY LICENSED PROFESSIONAL. WITHOUT LIMITING THE FOREGOING, FX DATA ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT WARRANTED TO BE COMPLETE, ACCURATE OR TIMELY.
11. INDEMNIFICATION
   1. By Everflow. Everflow will indemnify, defend and hold harmless Customer and its shareholders, directors, officers, employees and agents, and its and their respective successors and assigns from and against any and all third party claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs ("Claims") against Customer to the extent based upon an allegation that the Platform Services, as furnished by Everflow hereunder and used by Customer within the scope of these Service Terms, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF EVERFLOW WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM SERVICES. Everflow shall have no liability under this Section 11.1 to the extent that any Claims are based on (i) any combination of the Platform Services with products, services, methods, content or other elements not authorized in writing by Everflow, (ii) modification or maintenance of the Platform Services by a party other than Everflow; or (iii) any use of the Platform Services in a manner that violates these Service Terms, documentation,  instructions or materials (including Everflow Materials) given to Customer by Everflow.
   2. Mitigation Measures. In the event of any Claim or potential Claim covered by Section 11.1, Everflow may, in its discretion, seek to mitigate the impact of such Claim by modifying the Platform Services to make them non-infringing, and/or by suspending or terminating Customer's use of the Platform Services upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Everflow will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).
   3. Indemnification by Customer. Customer will indemnify, defend and hold harmless Everflow and its shareholders, directors, officers, employees and agents, and its and their respective successors and assigns against any Claims arising from or related to (i) a breach of any of Customer’s representations, warranties and covenants set forth in this Agreement; (ii) any Customer Data; or (iii) the use of the Platform Services by Customer, Authorized Users, or Partners in violation of these Service Terms or any applicable Everflow documentation, instructions or materials (including Everflow Materials). Customer-indemnified Claims include without limitation Claims resulting from advertising practices or the actions or omissions of affiliate network Partners, and any Claims brought by, or in connection with the actions or omissions of, Third Party Integration Providers.
   4. Procedures. Each party's indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the indemnified party's rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the indemnified party will, at the indemnifier's expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim. Any delay or failure of the indemnified party to provide notice here under shall only relieve the indemnifier of its obligations hereunder to the extent, if at all, that it is actually prejudiced by reason of such delay or failure. 
12. LIMITATION OF LIABILITY
   1. Waiver of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THESE SERVICE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   2. Liability Cap. EXCEPT FOR AMOUNTS OWED UNDER SECTION 7, THE TOTAL LIABILITY OF EACH PARTY FOR DAMAGES ARISING FROM OR RELATED TO THESE SERVICE TERMS SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO EVERFLOW UNDER THESE SERVICE TERMS FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
   3. Exceptions. Nothing in this Section 12 shall limit or waive a party's: (i) liability for any breach of its confidentiality obligations under these Service Terms; (ii) liability for its infringement or misappropriation of any proprietary rights of the other party; (iii) indemnification obligations under Section 11; or (iv) liability for its gross negligence or willful misconduct.
13. PUBLICITY
   1. Identification of Customer. Everflow may identify Customer, by name and by logo, as a customer of the Platform Services on Everflow's website and other marketing materials.
   2. Case Study. Provided Customer is satisfied with the Platform Services, Everflow may develop a case study for public dissemination and marketing use by Everflow describing the benefits Customer has derived from the Platform Services. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer's prior written approval, not to be unreasonably withheld.
14. MISCELLANEOUS
   1. Assignment. Neither party may assign the Agreement without the other party's prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer these Service Terms together with all Order Forms (and subject to any usage limitations therein) upon written notice to the other party: (i) to any entity controlling, controlled by, or under common control with, the transferring party, where "control" means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (ii) to any entity acquiring the transferring party, with which the transferring party is merging or to which the transferring party sells all or substantially all of its assets. Everflow shall have the right to increase amounts charged to Customer in the event of any transfer by Customer that either increases the cost of providing the Platform Services or by virtue of a change in taxes to be paid reduces the amount received by Everflow. Any attempt to assign this Agreement except as permitted under this Section, will be null and of no effect. Subject to the foregoing, these Service Terms will bind and inure to the benefit of each party's successors and permitted assigns.
   2. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
   3. Compliance. The parties agree to comply with all applicable international, federal, state and local laws, rules and regulations, including, without limitation, privacy and data security laws, and export laws.
   4. Severability. If any part of these Service Terms is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of these Service Terms will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
   5. Waiver. No forbearance or delay by either party in exercising or enforcing the provisions of the Agreement shall prejudice or restrict the rights (whether provided by the Agreement or by law) of that party. The waiver of a breach of any provision of these Service Terms will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
   6. Notices. All notices permitted or required under these Service Terms shall be in writing, will reference these Service Terms, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
   7. Governing Law. These Service Terms will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under these Service Terms will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
   8. Revisions to Service Terms and Order Form. Everflow may change these Service Terms, the Order Form or its policies from time to time (“Revised Version”), in which case we will post the subject Revised Version to our website at the same URL or location as the prior version.  Unless otherwise agreed to by the parties, your continued use of the Platform Services means that you have agreed to the subject Revised Version.
   9. Relationship of the Parties. Both parties are independent contractors and nothing in the Agreement creates a partnership, agency, joint venture, fiduciary or employment relationship between the parties. Neither party shall have any authority to incur any obligations on behalf of the other party or to make any promise, representation or contract of any nature on behalf of the other party. 
   10. Each party hereby acknowledges that it has been afforded the opportunity to obtain independent legal advice and confirms that it has either done so or waived its right to do so in connection with the entering into of this Agreement.
   11. Entire Agreement. These Service Terms, the SLA, and the Order Form constitute the entire agreement between the parties and supersede all prior or contemporaneous oral or written agreements regarding the subject matter herein.


EXHIBIT A
Everflow Service Level Agreement
This Everflow Service Level Agreement ("SLA") supplements the Service Terms together with the Order Form(s) to which they are attached or incorporated, between Everflow and Customer that incorporate this SLA by reference (the "Agreement"). All capitalized terms not defined herein shall have the meanings given to them in the Agreement. This SLA terminates or expires upon any termination or expiration of the Agreement.
1. SERVICE AVAILABILITY
   1. "Downtime" means any period during which all Platform Services cease to function and are therefore unavailable for access by Customer, calculated as a percentage of the total time during a calendar month.
   2. "Excused Downtime" means any Downtime that: (a) occurs during a Scheduled Maintenance Period; (b) occurs during any suspension of Customer's access to the Platform Services as permitted under the Agreement; (c) occurs during any period in which Customer is in breach of the Agreement (including while any payments by Customer are overdue); or (d) results from the actions or omissions of Customer or third parties acting on Customer's behalf or from any cause beyond Everflow's reasonable control.
   3. "Scheduled Maintenance Period" means any pre-scheduled time period during which Everflow performs maintenance on the Platform Services. The regularly scheduled time for maintenance is presently 9 p.m. to 12.00 a.m. PST/PDT, and may be used by Everflow without advance notification. Everflow may expand these scheduled times upon one (1) day's advance notice. Everflow may change the regularly scheduled time for maintenance by amending this SLA upon ten (10) business days' written notice delivered either by email or through a notice on the Platform Services.
   4. "Target Downtime" means Downtime, excluding Excused Downtime, of 0.1% of of the total time in any calendar month.
   5. In the event that Everflow in its sole discretion determines that any unscheduled maintenance is necessary, Everflow will use commercially reasonable efforts to notify Customer.
   6. For any calendar month in which the Downtime for the Platform Services exceeds the Target Downtime, Everflow will, if and only if Customer delivers a written credit request within thirty (30) days of the end of the relevant calendar month, issue Customer a service credit calculated as a percentage of the fees due from Customer for such calendar month equal to two (2) times the difference between the Target Downtime and the Downtime percentage. The maximum service credit for any calendar month under this SLA shall not exceed the fees payable for such calendar month.
   7. This SLA describes your sole remedy, and our entire obligation, if we exceed the Target Downtime. This SLA does not diminish or override the disclaimer of warranties in the Agreement to which this SLA is attached (except as expressly stated therein). No party other than Customer receives any rights under this SLA.
2. TECHNICAL SUPPORT
We will provide commercially reasonable telephone, live online chat, and/or email assistance for general advice and technical support, as well as technical assistance and remediation for operational issues, consistent with the level of support that Everflow generally offers at no additional charge to users of the Platform Services.
3. DOMAINS
All domain additions or changes, as defined in the Order Form, will be performed by Everflow within twenty-four (24) business hours. This term applies solely to domains registered and managed by Everflow. For clarification, service issues related to domains managed by Customer are not subject to this SLA.

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