The agreement is made up of these Terms of Service (including Annexes and Appendices hereto, “Terms”) together with any Order Form(s) (collectively, "Agreement") entered into between Customer ("Customer" or "you") and Everhelp Limited, having its register address at 5-9 Main Street, Gibraltar, GX11 1AA, Gibraltar, or other legal entity identified on the Order Form ("EverHelp") (each a "Party", together, the "Parties") and governs Customer's use of the Services set out in the Order Form.
"Order Form" means the: (i) signed order form between the Parties; or (ii) the applicable online registration form or click through agreement referencing these Terms.
If you enter into these Terms on behalf of a company, you represent that you have the authority to bind such entity. If you do not have such authority, or if you do not unconditionally agree to these Terms, you have no right to use the Services.
1.APPOINTMENT AND SERVICES
1.1 Services. Customer hereby appoints EverHelp to provide the services as specified in separate Order Form(s) entered into between the Parties (“Services”) and undertakes to pay for such Services.
1.2 Standards. EverHelp shall provide the Services to the Customer in accordance with reasonable requests which may be made by the Customer from time to time with the due level of care, skill and diligence in accordance with standard practice in the industry, profession or trade.
1.3 Third-party Services. The Parties may agree in writing to use certain third-party technical Services (customer communications platforms, customer support Services including, knowledge content systems). Customer acknowledges that the use of the above mentioned third-party technical Services reveals the communication history and certain information about Customer’s products, services, technologies, methodologies, processes to third-party Services makers for the purpose of providing Services. The Provider undertakes to maintain reasonable technical and organizational measures within its power to protect personal data of Customer’s customers within third-party Services application.
2.FEES AND PAYMENT
2.1 Fees. Fees will be invoiced according to the Order Form. All payment obligations are non-cancelable and all amounts paid are non-refundable, unless expressly stated otherwise in the Agreement or in the Order Form. All payments shall be made in the currency indicated in the Order Form in full and cleared funds without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law) within ten (10) days after the applicable invoice date, unless otherwise specified in the Order Form ("Payment Due Date").
2.2 Taxes. All sums payable under the Agreement are exclusive of value added tax (VAT) or any other local sales taxes, for which Customer shall be responsible. Any wire transfer fees (if any), or taxes imposed on any Party by any governmental authority in connection with the execution and performance of this Agreement shall be paid by that Party.
2.3 Late payment fees. If payment has not occurred by the Payment Due Date, then without limiting any other right or remedy available to EverHelp, EverHelp reserves the right to charge a late fee ("Late Fee") of 2% of the invoice amount. Prior to charging Late Fee, EverHelp may but is not obliged to contact Customer regarding the delinquency and verify receipt of the applicable invoice. Customer shall provide EverHelp with complete and accurate billing and contact information.
2.4 Adjustments. If Customer believes that EverHelp has billed Customer incorrectly, Customer must contact EverHelp no later than five (5) days after receipt of invoice in order to receive an adjustment. Inquiries should be directed to EverHelp’s contact email set forth in the applicable Order Form.
3.LIMITED WARRANTY AND DISCLAIMERS
3.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
3.2 Additional Representations and Warranties of the EverHelp. The EverHelp represents and warrants to the Customer that it will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
3.3 Additional Representations and Warranties of the Customer. The Customer represents and warrants to the EverHelp that the Customer owns or otherwise has and will have the necessary rights and consents in and relating to data of the Customer’s customers, which is received by the EverHelp and processed in accordance with this Agreement and the Data Processing Agreement.
4.1 Each Party shall indemnify, defend, and hold harmless the other Party, its affiliates, and their respective employees, officers, directors, and agents from and against any and all liability, loss, damages, costs and expenses (including reasonable attorney fees) resulting from or in connection with the breach by such Party of any representation or warranty of any of its obligations under this Agreement.
5.LIMITATION OF LIABILITY AND DAMAGES
5.1 SUBJECT TO THIS SECTION 5.2, 5.3 AND 5.4, EACH PARTY’S TOTAL AGGREGATE LIABILITY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY, WITH RESPECT TO ALL SUBJECT MATTER RELATING TO OR ARISING OUT OF THE AGREEMENT SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND PAYABLE TO EVERHELP (WHETHER OR NOT INVOICED) UNDER THE AGREEMENT IN THE YEAR PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
5.2 SUBJECT TO SECTIONS 5.3 AND 5.4, NEITHER PARTY WILL BE LIABLE FOR ANY: (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOSS OF REVENUES; (C) LOSS OF PROFITS; (D) LOSS OR INACCURACY OF DATA; OR (E) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, IN EACH CASE, REGARDLESS OF THE FORM OF ACTION (AND WHETHER (B) THROUGH (E) ARE DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL), WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY.
5.3 THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS SECTION 5 SHALL NOT APPLY TO BREACH OF SECTION 6 (CONFIDENTIALITY AND PROPRIETARY INFORMATION), WILLFUL MISCONDUCT, AND CUSTOMER’S PAYMENT OBLIGATIONS.
5.4 NOTHING IN THE AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
6.CONFIDENTIALITY AND PROPRIETARY INFORMATION
6.1 A Party (the “Receiving Party”) may receive Confidential Information of the other Party (the “Disclosing Party”) and the Receiving Party shall keep all such Confidential Information confidential and protect it by using the same level of care and discretion that the Receiving Party uses with respect to its own confidential information, which will be in no case less than reasonable care and discretion.
6.2 The Receiving Party shall not use the Confidential Information for its own purposes (other than as provided in the Agreement) nor disclose Confidential Information to any person other than such Party’s Authorized Users, or EverHelp’s subprocessors, who have a need to know that Confidential Information provided that the Receiving Party remains responsible for the confidentiality of the information. The Parties shall not use Confidential Information for any purpose other than as necessary to exercise rights or fulfill obligations under the Agreement.
6.3 Without limiting the foregoing, either Party may disclose Confidential Information to a government authority if that disclosure is: (a) required by law or (b) necessary to exercise its rights or perform its obligations under and in accordance with the Agreement.
6.4 In the Agreement, “Confidential Information” means business information of a confidential or proprietary nature (including trade secrets and information of commercial value), including without limitation, pricing, Services, source code and underlying technical or business information, which relates to the Disclosing Party that is disclosed or provided to Receiving Party by or on behalf of Disclosing Party pursuant to the Agreement; provided, however, that Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (iv) is input into the Services or (v) is independently developed by the Receiving Party.
6.5 This Section shall apply during the Term of this Agreement, and for three (3) years after the Agreement’s termination or expiry and shall survive any termination or expiration of this Agreement.
7.1 Termination for Breach. Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if the other Party breaches a material obligation under the Agreement that has not been cured (if curable) within ten (10) business days of the effective date of such written notice requiring the remedy of such breach or either Party (a) announces a cessation of its entire business or becomes insolvent; (b) elects to dissolve and wind-up its business; (c) makes a general assignment for the benefit of creditors; or (d) petitions for or appoints (or a third party causes to be appointed for itself) a receiver, custodian or trustee to take possession of all or substantially all of that Party’s property.
7.2 Termination for Convenience. Unless otherwise provided by the Order Form, Agreement may be terminated at any time with or without cause by either Party upon providing 30 (thirty) calendar days' written notice to the other Party.
7.3 Effect of Termination. Upon termination of the Agreement by any means the Parties shall promptly delete or destroy each other Confidential Information. If this Agreement is terminated as a result of a material breach by Customer, then Customer shall pay in full all outstanding Fees payable through the remainder of each outstanding Order Form or if Customer has prepaid any Fees, then those Fees are nonrefundable. If this Agreement is terminated by Customer due to a material breach by EverHelp, then EverHelp shall refund Customer on a pro-rata basis any prepaid Fees.
7.4 Prior rights. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
8.EFFECTIVE DATE; TERM
8.1 The Agreement shall become effective on the date the Customer signs the Order Form which references the Agreement (the "Effective Date") and shall continue for a period of twelve (12) months ("Initial Term") unless otherwise indicated on the Order Form. Each Order Form shall automatically renew for an additional twelve (12) month term (each, a "Renewal Term", together with the Initial Term, the "Term") on EverHelp’s then-current terms and conditions unless either party provides notice (via email shall suffice) of its intent not to renew at least thirty (30) days in advance of the end of the Initial Term or current Renewal Term.
9.GOVERNING LAW AND JURISDICTION
9.1 Governing law. This Agreement shall be governed by the laws of England and Wales, excluding conflict of laws rules.
9.2 Dispute Resolution. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The International Expedited Procedures of the International Centre for Dispute Resolution shall apply regardless of the amount in dispute. The place of arbitration shall be Nicosia, Cyprus, however the Parties agree that in case an oral hearing is necessary, it shall be conducted via video, audio, or other electronic means. The language of the arbitration shall be English. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
10.1 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and the Services, superseding all prior or contemporaneous proposals, communications and understandings, oral or written relating to that subject matter. To the extent there is any conflict or inconsistency between the Terms and any Order Form signed by both Parties, the Order Form shall prevail to the extent of any such conflict or inconsistency.
10.2 Modifications. Except as expressly provided in the Agreement, any modifications of the Agreement must be in writing and signed by both Parties.
10.3 Waiver. Any waiver of any provision of the Agreement must be in writing and will not be deemed a waiver of any other provision.
10.4 Third-party rights. The Agreement does not confer any right or benefit on any person who is not a Party to it and no one other than a Party to the Agreement, their successors and permitted assignees shall have any right to enforce any of the terms of the Agreement.
10.5 Assignment. Except for an assignment by EverHelp to a wholly owned affiliate neither the rights nor the obligations arising under the Agreement are assignable or transferable by either Party without the other Party’s prior written consent (which will not be unreasonably withheld), and any such attempted assignment or transfer shall be void and without effect.
10.6 Severability. Each provision of the Agreement shall be considered severable such that if any provision or clause conflicts with any existing or future law or regulation, or is held to be illegal, unenforceable or invalid by a court, the other provisions of the Agreement shall be limited or modified to the minimum extent necessary to make it valid, legal and enforceable and so that the Agreement shall otherwise remain in effect.
10.7 Notices. Either Party will deliver all notices, approvals or other communications required or permitted under the Agreement, including those regarding modifications to the Agreement, via e-mail (in each case to the email address stated in the Order Form). For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. EverHelp may also deliver all notices by posting to the website or your account.
10.8 Delay. A delay by either Party in performing its obligations will not be a breach of the Agreement if caused by an event beyond the reasonable control of such Party. The affected Party will notify the other Party of such event and resume performance as soon as possible.
10.9 Counterparts. The Order Form(s) may be executed in any number of counterparts, each of which is an original, but all the counterparts together constitute the same document. Delivery of an executed counterpart of a signature page to the Order Form by e-mail or other electronically delivered signatures of the Parties shall be as effective as delivery of a manually executed counterpart of such Order Form.
10.10 No partnership. Nothing in the Agreement is intended to create a joint venture, partnership, agency or employment relationship between the Parties.
10.11 Data Processing Agreement. The Parties agree to comply with Annex 1 (Data Processing Addendum) available at link with respect to the processing of any personal data under the Agreement.