Last updated September 11, 2021
THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT IN SECTION 13 BELOW, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM (AS DEFINED IN SECTION 13) TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN A COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, SECTION 13 BELOW DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THE ARBITRATION AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER IN SECTION 13 BELOW, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS A PART OF A CLASS ACTION.
You agree that Evervive™ may, in its sole discretion, and at any time, terminate or suspend its operation of the Site or your use of the Site, without prior notice to you, for any reason that Evervive™, in its sole discretion, deems appropriate. You further agree that Evervive™ will not be liable to you or to any third party for the consequences of such termination or suspension. In the event of any termination of your use of or access to the Site, you agree that the provisions of the Agreement regarding protection of intellectual property rights and licenses, indemnification, disclaimer regarding information provided on the Site, disclaimer of warranties with respect to use of the Site, limitation on Evervive™’s liability, your release of Evervive™ in the ultimate paragraph of Section 6 and pre-dispute, mandatory binding arbitration, and class action waiver shall survive any such termination.
2. USE OF THE SITE
In order to use the Site, you must be 21 years or older and have the power to enter into a binding contract with us and not be barred from doing so under any applicable laws. The Site is not intended for persons under the age of 21 and no person under the age of 21 may use the Site. If you use the Site, you are affirming that you are at least 21 years old.
4. NO WAIVER
6. DISCLAIMERS & WARRANTIES
Content on the Site is provided for entertainment purposes only.
THE SITE AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE SITE IS AT YOUR OWN RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, EVERVIVE™ AND THE SITE EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE SITE OR CONTENT, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
EVERVIVE™ DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT (A) THE SITE OR CONTENT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) THE OPERATION OF THE SITE OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, OR ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; (C) ANY PARTICULAR RESULTS WILL BE OBTAINED FROM THE USE OF THE SITE; OR (D) THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
THE INFORMATION PRESENTED ON OR THROUGH THE SITE IS MADE AVAILABLE SOLELY FOR INFORMATION PURPOSES. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THIS INFORMATION. ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER VISITOR TO THE SITE, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS. THE SITE MAY INCLUDE (OR INCLUDE LINKS TO) CONTENT PROVIDED BY THIRD PARTIES. ALL STATEMENTS EXPRESSED IN THESE MATERIALS AND ALL ARTICLES AND RESPONSES TO QUESTIONS AND OTHER CONTENT, OTHER THAN THE CONTENT PROVIDED BY EVERVIVE™ ITSELF, ARE SOLELY THE OPINIONS AND THE RESPONSIBILITY OF THE PERSON OR ENTITY PROVIDING THOSE MATERIALS. THESE MATERIALS DO NOT NECESSARILY REFLECT THE OPINION OF EVERVIVE™. WE ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR THE CONTENT OR ACCURACY OF ANY MATERIALS PROVIDED BY ANY THIRD PARTIES.
EVERVIVE™ WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR CONNECTED WITH THE SITE, INCLUDING THE USE OF OR THE INABILITY TO USE THE MATERIALS IN THE SITE, EVEN IF EVERVIVE™ OR ONE OF ITS AFFILIATES OR AN AUTHORIZED REPRESENTATIVE OF EITHER OF THEM, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EVERVIVE™‘S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE AMOUNT PAID TO EVERVIVE™, IF ANY, FOR ACCESSING THE SITE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU HEREBY RELEASE AND FOREVER DISCHARGE EVERVIVE™ (AND OUR OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, AND ASSIGNS) FROM, AND HEREBY WAIVE AND RELINQUISH, EACH AND EVERY PAST, PRESENT AND FUTURE DISPUTE, CLAIM, CONTROVERSY, DEMAND, RIGHT, OBLIGATION, LIABILITY, ACTION AND CAUSE OF ACTION OF EVERY KIND AND NATURE (INCLUDING PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE), THAT HAS ARISEN OR ARISES DIRECTLY OR INDIRECTLY OUT OF, OR THAT RELATES DIRECTLY OR INDIRECTLY TO, THE SITE (INCLUDING ANY INTERACTIONS WITH, OR ACT OR OMISSION OF, OTHER SITE USERS OR ANY THIRD-PARTY LINKS & ADS). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
7. OUR USE OF CONTENT
Generally. Evervive™ will consider anything you provide to it or contribution or post to the Site as available for our use free of any obligations to you, except where solicited or invited submissions are expressly governed by additional terms appearing elsewhere on the Site, in which case those additional terms will determine how we treat your solicited or invited submissions.
Social Media Content. From time to time, Evervive™ will re-post or otherwise use in its advertising a consumer’s photos, experiences, stories, or other content from their personal social media account. Evervive™ will never use your personal social media content (“UGC”) without first obtaining your express written permission.
By agreeing to allow Evervive™ to use your UGC, you represent and warrant:
You own all rights to the UGC and have the right to grant Evervive™ a license to use the UGC (including any material embodied in the UGC);
You have express permission from any person, living or dead, in the UGC to use their likeness;
The UGC does not contravene or infringe on anyone else's copyright or other intellectual property, moral rights, privacy or publicity rights; and
Further, by agreeing to allow Evervive™ to use your UGC, you agree to grant Evervive™ an irrevocable, perpetual, non-exclusive, fully paid-up, royalty-free, sub-licensable license and right to reproduce, transmit, display, comment on, edit, modify, alter, exploit, create derivative works based upon, combine with other works (and all copyrights therein and thereto and all renewals and extensions thereof), and otherwise distribute the UGC and all elements of the UGC, including without limitation, the photo and the likeness of any persons embodied therein, in any and all media now known or hereafter devised, worldwide, in perpetuity without compensation, permission, notification, attribution, or restriction from you or any third party.
You hereby release, discharge and agree to hold Evervive™ and any person acting on Evervive™’s behalf harmless from all claims, demands, and liabilities whatsoever in connection with use of the UGC.
8. PROHIBITED USES
In any way that violates any applicable federal, state, local, international law or regulation, or professional rules or standards (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries);
To transmit, or procure the sending of, any advertising or promotional material, including any "junk mail", "chain letter" or "spam", or any other similar solicitation;
To impersonate or attempt to impersonate Evervive™, a Evervive™ employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing); and/or
To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Site or which, as determined by us, may harm Evervive™ or users of the Site or expose them to liability.
Additionally, you agree not to:
Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party's use of the Site, or access any equipment or network on which the Site are stored or operated or any software used in the operation of the Site or any equipment or software operated by any third party;
Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the materials on the Site;
Use any manual process to monitor or copy any of the materials on the Site or for any other unauthorized purpose without our prior written consent;
Use any device, software, or router that interferes with the operation, performance or output of the Site;
Introduce any viruses, Trojan horses, worms, logic bombs, or other materials that are malicious or technologically harmful;
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the servers on which the Site are stored, or any servers, computers, or databases connected to the Site;
Attack the Site via a denial-of-service attack or a distributed denial-of-service attack; and/or
Otherwise attempt to interfere with the operation, performance or output of the Site.
9. LINKS TO THIRD PARTY WEBSITE
The Site includes links to various third party websites. Evervive™ is providing these links solely as a convenience. Such linked third party websites are not under the control of Evervive™. We have not reviewed all of the third party websites linked to/from the Site and are not responsible or liable for the contents available at any such third party linked websites. The appearance of third party linked websites to/from the Site do not imply Evervive™'s endorsement of the third party linked websites, its sponsors or any products or services offered on the third party linked websites. Use of the third party linked websites is at your own risk.
10. TELEPHONE AND ELECTRONIC COMMUNICATIONS AND AGREEMENT TO BE CONTACTED
Providing Telephone Numbers and Other Contact Information. You verify that any contact information provided to Evervive™, our agents, affiliates, and independent contractors, including, but not limited to, your name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or terminate your account at any time. Should any of your contact information change, including ownership of your telephone numbers, you agree to immediately notify us before the change goes into effect by texting STOP to any text message.
Your Consent to Receive Texts. You acknowledge that by voluntarily providing your telephone number(s), you expressly agree to receive text messages from us, our agents, affiliates, and independent contractors related to your account, promotions, registration, policies, changes and updates, reminders about incomplete or upcoming payments, follow ups to any push notifications delivered through our mobile application, any transaction with Evervive™, and/or your relationship with Evervive™. You acknowledge that text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You agree that Evervive™ may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means, such as skip tracing, caller ID capture, or other means. You agree to receive text messages from Evervive™, our agents, affiliates, and independent contractors even if you cancel your account or terminate your relationship with us, except if you opt-out (see below). You understand that you do not have to agree to receive automated promotional texts as a condition of purchasing any goods or services. To opt-out, please see the Opt-Out Instructions below.
Opt-Out Instructions. Your consent to receive texts is completely voluntary. You may opt-out at any time. To opt-out of text messages, text STOP to any text message you receive. You acknowledge and agree to accept a final text message confirming your opt-out. It is your sole responsibility to notify us if you no longer want to receive text messages. You waive any rights to bring claims for unauthorized or undesired text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request.
Fees and Charges. There is no fee to receive text messages from Evervive™, our agents, affiliates, and independent contractors. However, you may incur a charge for these text messages from your telephone carrier, which is your sole responsibility. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that Evervive™, our agents, affiliates, and independent contractors are not responsible for such charges.
Unauthorized Use of Your Telephone Device. You must notify Evervive™ immediately of any breach of security or unauthorized use of your telephone device. Although Evervive™, our agents, affiliates, and independent contractors will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for our losses due to such unauthorized use.
Your Indemnification to Us. You agree to indemnify Evervive™, our agents, affiliates, and independent contractors for any privacy, tort or other claims, including claims under the Federal Telephone Consumer Protection Act or its state law equivalent, relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify us of any changes in your contact information, including telephone number. You agree to indemnify, defend and hold us harmless from and against any and all such claims, losses, liability, costs and expenses (including reasonable attorneys’ fees). We shall have the exclusive right to choose counsel, at your expense, to defend any such claims.
Release of Claims. In consideration of the services provided by Evervive™, our agents, affiliates, and independent contractors, you hereby release Evervive™, our agents, affiliates, and independent contractors from any and all claims, causes of action, lawsuits, injuries, damages, losses, liabilities or other harms resulting from or relating to text messages, including without limitation any claims, causes of action, or lawsuits based on any alleged violations of the law (including, without limitation, the Telephone Consumer Protection Act, Truth in Caller ID Act, Telemarketing Sales Rule, Fair Debt Collection Practices Act, or any similar state and local acts or statutes, and any federal or state tort or consumer protection laws).
Electronic Communications and Signatures. The communications between you and Evervive™ use electronic means, whether you use the Site or send us emails, or whether Evervive™ posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Evervive™ in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Evervive™ provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
12. APPLICABLE LAWS & JURISDICTION
You agree to comply with all applicable laws, statutes, ordinances, and regulations regarding your use of the Site and your purchase of the products and services on the Site.
Evervive™ owns and controls the Site (excluding third party linked Sites) from its corporate offices. Evervive™ makes no representation that the Content is appropriate or available for use in other locations. Accessing the Site or Content from jurisdictions where such access or the Content is illegal is prohibited. Users are solely responsible for compliance with all the laws of their jurisdictions.
13. DISPUTES: ARBITRATION AGREEMENT, TIME LIMITATION, & CLASS WAIVER
PLEASE READ THIS SECTION CAREFULLY, AS IT AFFECTS YOUR RIGHTS.
You acknowledge and agree that before initiating any claim against Evervive™, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us including, but not limited to, information or representations related to our products and upon which you rely. You may send the written description by U.S. Mail to Evervive™, Inc., 4845 Pearl East Cir. Ste 118-47571, Boulder, Colorado 80301; Attn: General Counsel. You agree to negotiate with Evervive™ in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after Evervive™’s receipt of your written dispute, you agree to the dispute resolution provisions below. With respect to the dispute resolution provisions, including the class action waiver, subsidiaries, partners and affiliates of Evervive™ shall be third party beneficiaries.
Any dispute or claim relating in any way to your use of the Site, to your purchase or use of any Evervive™’s product, or any of Evervive™’s membership programs, will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify.
You and Evervive™ each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. This means that you and Evervive™ agree to arbitrate in our individual capacities only, not as a representative of a class, a member of a class, or a Private Attorney General. Likewise, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Attn: General Counsel, 4845 Pearl East Cir. Ste 118-47571, Boulder, Colorado 80301. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules, including the AAA’s Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/consumer or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 USD unless the arbitrator determines the claims are invalid or frivolous. Likewise, Evervive™ will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are invalid or frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another location that is mutually agreed upon.
If for any reason a claim proceeds in court rather than in arbitration, the parties waive any right to a jury trial, unless such waiver is unenforceable. The parties also agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
You and Evervive™ agree to commence any arbitration proceeding within 1 year after the claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred.
You agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the Superior Court of Boulder County, Colorado, or the United States District Court for the District of Colorado, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
In order to avoid irreparable injury to Evervive™, in the event of any breach or threatened breach by you of the provisions of this Agreement, we shall be entitled to seek an injunction or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting Evervive™ from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of monetary damages from you.
14. INTELLECTUAL PROPERTY
The Site and Content are the property of Evervive™, and its licensors and are protected by United States and International Copyright laws. All copyright, trademark, and other proprietary rights in the Site and in the services, products, software, text, graphics, design elements, audio, music, and all other materials originated or used by Evervive™ at the Site or elsewhere are reserved to Evervive™ and its licensors. You acknowledge that content available through the Site including, without limitation, content in the form of text, graphics, software, music, sound, photographs, and videos, including content provided by suppliers, sponsors, or third-party advertisers ("Intellectual Property Rights"), is protected by copyright, trademarks, patents, or other proprietary rights and laws. You are hereby granted only a non-exclusive, non-transferable, revocable, limited license to use and access the Site solely for your own personal, noncommercial use and to view, copy and print content retrieved from the Site for the sole purpose of using or placing an order via the Site, provided that you do not remove or obscure the copyright notice or other notices displayed on the content. Except as expressly provided in this Agreement, nothing contained in this Agreement or on the Site shall be construed as conferring any other license or right, expressly, by implication, by estoppel, or otherwise under any of Evervive™’s or a third party’s Intellectual Property Rights. Any rights not expressly granted herein are reserved.
15. PURCHASING PRODUCTS ON THE SITE
Evervive™ reserves the right, without prior notice, to discontinue or change specifications and prices on products without incurring any obligation to you. Evervive™ takes reasonable precautions to try to ensure that the prices quoted on the Site are correct, and to describe the items available on the Site as accurately as possible and to depict the most up to date packaging. However, when ordering products, please note that Evervive™ does not warrant that product descriptions are accurate, complete, reliable, current, or error-free, or that product packaging depicted on the Site will match the actual product that you receive. If a product described on the Site is not as described when you receive it, or the packaging on the Site does not match the product you receive, your sole remedy is to return it to us in an unused and undamaged condition in accordance with our Return Policy. Please be aware that prices, availability and other purchase terms are subject to change without prior notice. We make every effort to ensure the accuracy of the information on the Site and to correct errors once discovered. Evervive™ reserves the right to revoke any stated offer to correct any errors, inaccuracies, or omissions, including after an order has been submitted, after it has been confirmed, or after your credit card has been charged. If we discover an error has occurred after your credit card has been charged and your order is canceled as a result of the error, your credit card will be refunded the full amount of your order.
17. HEADINGS FOR CONVENIENCE ONLY