EVERPLANS TERMS OF SERVICE
EFFECTIVE DATE: 09/30/2022
LAST UPDATE: 09/30/2022
Please read these Terms fully and carefully before using the Services, because these Terms form a legally binding contract between you and Everplans for your use of the Services. We provide you with access to and use of the Services subject to your compliance with these Terms. By using the Services, you agree to be bound by these Terms. If you are a financial advisor accessing the Services on behalf of your customer or another entity, you represent and warrant that you have the authority to agree to these Terms on their behalf. These Terms cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, and limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION
In other words: This agreement governs your use of Everplans and may affect your legal rights.
By registering for the Services, you represent and warrant that you are at least 13 years of age. If you are under 13, you may not, under any circumstances or for any reason, use the Services. We reserve the right to change our eligibility criteria at any time, and to refuse to offer the Services to anyone for any reason or no reason at all. You are solely responsible for ensuring that these Terms comply with all applicable laws, rules and regulations (collectively, “Laws”), and your right to use the Services is revoked wherever these Terms, your use of the Services, or any part of the Services conflicts with any Laws.
In other words: You can’t use the Services if you are under 13 or if these Terms or the Services violate local law.
2. Registration and Responsibilities
While certain aspects of the Services are public, others require you to sign up for the Services by registering for an account (an “Account”). You are solely responsible for keeping the email address associated with your Account accurate and up to date, since this is the only way we can contact you about your Account and your use of the Services. You promise not to (i) intentionally impersonate another person by using their name and/or email address or (ii) use an email address for which you don’t have the proper authorization. You must keep your password secure and should never publish, distribute or post your Account login information, because you are responsible for any activity that occurs on your Account. You set permissions for sharing or disclosing your Secure Information to another person or organization (each, a “Read Or Write Access Deputy”). You select to use the Services by yourself, or, if you are using Everplans as Household with another user with whom you share ownership of the Secure Information of your Everplan (each, a “Co-Administrator”). You are prohibited from using another person’s account or registration information for the Services without their permission. You promise to immediately let us know if there is any unauthorized use of your Account, security breach, or change in your eligibility to use the Services. You can delete your Account at any time by logging into your Account and visiting the “Account Settings” section, where you can click the “Delete My Account” button.
In other words: If you sign up for an Account, you are responsible for any Account activity and for keeping your Account email address up to date so that we can reach you. Be mindful about how you share and protect your Account, and let us know immediately if you think there are any issues by contacting us through our help center at https://help.everplans.com/customer/portal/emails/new.
3. Your Information
a. Overview. You are solely responsible for all Content (as defined below) that you add, create, upload, submit, distribute or post to the Services (collectively and together with Basic Information, Secure Information, Advisor Services Information, Public Information and Aggregate Information (each as explained below), “Your Information”), and you represent that all of Your Information provided or generated by you is accurate, complete, current and in compliance with all Laws. For clarity, the below license grants to us and others does not affect your other ownership or license rights in Your Information, including the right to grant additional licenses to Your Information, unless otherwise agreed in writing. To be clear, you own Your Information. You promise that you have all rights to grant such licenses to us without infringement or violation of any third party rights. If you are a financial advisor accessing the Services on behalf of your customer or another entity, you represent and warrant that you have the authority to (i) add, create, upload, submit, distribute or post any and all Content to the Services on such customer or entity’s behalf and (ii) bind such customer or entity to the licenses set forth in this Section 3.
In other words: You own all of Your Information, but you’re ok with Everplans and your Read Or Write Access Deputies viewing or using Your Information in accordance with this agreement.
i. “Basic Information” means the first and last name, email address, gender, zip code, date of birth, and the date and time of associated with the Account creation and (if applicable) deletion of you or any Collaborator on your account, including Read Or Write Access Deputies or Co-Administrators on your Everplan (each a "Collaborator"). By submitting Basic Information through the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use reproduce, store, and display the Basic Information, including after termination of your Account or the Services, as necessary (1) to operate, provide, and improve the Site, the Services and our (and our successors’ and assigns’) businesses; (2) to send you and your Collaborators marketing and promotional materials with you and your Collaborators’ consent; (3) to contact your Collaborators on your behalf, and (4) for audit purposes (for example, when you delete your Account we will store the Basic Information to address certain inquiries you may have surrounding your Account)
In other words: We might use the Basic Information of you and your Collaborators to provide and improve the Services, send marketing information to you and your Collaborators with your consent, and address inquiries you have about your Account.
iii. Use Information. If you are working with (a) a financial advisor or (b) an employer, benefits administrator, insurance company or any third party institution (this subsection (b) collectively, a “Partner Provider”) to provide you (and, if applicable, a Co-Administrator) access to the Premium Services (as defined below), your financial advisor or Partner Provider (as applicable) may be able to see certain high-level information about your use of and access to the Services, which may include the type of Everplan you signed up for, the date and time of your last login to the Services, your total number of logins to the Services, and which sections of your Everplan you completed (collectively, the “Use Information”). By accepting a financial advisor’s or Partner Provider’s invitation to sign up for the Premium Services, (an “Invitation”), you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, store, aggregate, reproduce, transmit and display Use Information, internally or to your financial advisor or Partner Provider (if applicable), solely as necessary to operate, provide and improve the Site, the Services (including without limitation the Premium Services) and our (and our successors’ and assigns’) businesses, including after termination of your Account or the Services. You also hereby do and shall grant your financial advisor or Partner Provider, as applicable, a non-exclusive, perpetual license to access your Use Information through the Services, and to use, prepare derivative works of, and display such Use Information, including after termination of your Account or the Services. To be clear, Use Information may be personally identifiable and may be tied back to you (and, if applicable, your Co-Administrator), your Account and/or your web browser.
In other words, if you receive an Everplan from a financial advisor or a Partner Provider, we may surface information on your use of the services back to that advisor or Partner Provider (as applicable), but never the contents of your Everplan or your Secure Information unless you have designated them as a Read or Write Access Deputy for the particular Secure Information you have chosen to share.
iv. Public Information. “Public Information” means any Content you add, create, upload, submit, distribute or post to public portions of the Services, such as comments on any articles. By publicly posting Public Information to the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, store, display, perform, transmit, and otherwise fully exploit the Public Information in connection with the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting or redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after termination of your Account or the Services. You also hereby do and shall grant each user of the Services a non-exclusive, perpetual license to access your Public Information through the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such Public Information, including after your termination of your Account or the Services. Please do not publicly post or submit any Content that you do not want publicly accessible or viewable.
In other words: Public Information is public, so don’t include any private or sensitive information in it.
v. Aggregate Information. “Aggregate Information” means statistical information about how you use the Services as well as your demographic information. By submitting or generating Aggregate Information through your use of the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, store, display, perform, transmit and otherwise fully exploit the Aggregate Information in connection with the Site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting or marketing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after termination of your Account or the Services. To be clear, Aggregate Information is not personally identifiable and cannot be tied back to you, your Account or your web browser.
In other words: We may use your Aggregate Information to promote our Services, none of which is personally identifiable.
b. The security, privacy, and confidentiality of your Secure Information are of utmost and critical importance to us. When we collect, maintain, access, use, or disclose your Personal Information, including without limitation your Secured Information, we will do so using systems and processes consistent with information privacy and security requirements under applicable federal and state laws, including, without limitation, HIPAA. Accordingly, we use industry standard (or better) administrative, physical, and technical protections to safeguard the security, privacy, confidentiality, and integrity of your Secure Information, and we store your Secure Information on HIPAA-compliant infrastructure. Except as permitted under this Agreement, we do not share Secure Information with third parties without your express permission. Our technology uses the encryption algorithms of the same quality relied on by banks, the military, and the U.S. government. Your Secure Information is stored in a HIPAA-compliant hosting provider that has 24/7 physical and biometric protections, firewalls, intrusion detection systems, and an array of other technological safeguards and security certifications. Click here for more information on our security measures https://www.everplans.com/everplans-security. Nevertheless, no security measure or safeguard is 100% effective, and Everplans cannot guarantee absolute security of any of Your Information, including without limitation your Secure Information. EVERPLANS SHALL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS, HACKING OR OTHER SECURITY INTRUSIONS OR FAILURE TO STORE OR THE THEFT, DELETION, CORRUPTION, DESTRUCTION, DAMAGE, OR LOSS OF ANY DATA OR INFORMATION, INCLUDING WITHOUT LIMITATION SECURE INFORMATION.
In other words: We have an experienced team that employs better than industry standard methods to make sure that your Secure Information will be safe, though no security measure can be guaranteed to be 100% effective.
4. Everplans’ Proprietary Rights
Any information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics and interactive features generated, provided or otherwise made accessible on or through the Services (collectively, “Content”) are Everplans’ property or that of our suppliers or licensors, and are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information and restrictions contained in any Content that you access through the Services. Subject to these Terms, we grant you a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for purposes other than using the Services is expressly prohibited without our prior written permission. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. We can, but do not have to, (a) remove, edit or modify any Content in our sole discretion at any time, without notice to you and for any reason (including without limitation if we think you may have violated these Terms or upon receipt of claims or allegations from third parties or authorities relating to such Content) or for no reason at all or (b) to remove or block any Content from the Services.
In other words: We own the Services and the Content. You’re allowed to use them in accordance with this agreement. We can edit, take down, or block any Content at any time.
5. Acceptable Use
As a condition of your use of the Services, you agree to use the Services only for lawful purposes and to comply with these Terms and all Laws. You also agree to respect the privacy and Secure Information of other users of the Services.
You agree not to, and shall not allow anyone else to (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate the distribution of any Content, including without limitation Your Information, on or through the Service, that:
a. includes anyone else’s identification documents or sensitive financial information;
b. infringes any patent, trademark, trade secret, copyright, right of publicity, right of privacy or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy https://www.everplans.com/dmca-notice);
c. you know is false, misleading, untruthful or inaccurate;
d. impersonates, intimidates or harasses any person or entity, including any of our employees or representatives;
e. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); or
f. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion.
In other words: You must comply with the law and this agreement, and you promise not to submit any prohibited or harmful Content.
You are further prohibited from violating or attempting to violate the security of the Services or Everplans’ other systems or network security, including without limitation the following:
a. accessing data not intended for users of the Services;
b. gaining unauthorized access to an account, server or any other computer system;
c. attempting to or engaging in, directly or indirectly, probing, scanning or testing the vulnerability of a system or network or to breach security or authentication measures;
d. attempting to interfere with the function of the Services or the Services’ host or network, including without limitation by submitting, directly or indirectly, any Content or Your Information that contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
e. sending altered, deceptive or false source-identifying information, including without limitation “spoofing” or “phishing”; or
f. forging any TCP/IP packet header.
In other words: You must not violate or attempt to violate the security of the Services.
6. Links to Third Party Sites
7. Payments and Billing
- a. Freemium/Premium Services. We may provide some of our services free of charge (the “Freemium Services”) while other services may be subject to payments now or in the future (the “Premium Services”). If you are using the Freemium Services, we will notify you before any services you are then using begin carrying a fee, and if you wish to continue using such services, you must pay all applicable fees for such services. Please see our Premium Services page https://www.everplans.com/pricing for a description of the current Premium Services. Please note that any payment terms presented to you in the process of using or signing up for a Premium Services are incorporated into these Terms. You agree to comply with, and your license to use our mobile application is conditioned upon your compliance with, such App Store terms and conditions. Any refunds relating to the applications or inquiries regarding refunds relating to the applications shall be handled solely by the applicable App Store in accordance with such App Store’s terms and conditions
- c. Recurring Billing. Everplans will bill any fees associated with your use of the Premium Services plus applicable tax to the credit card you provide. By signing up for the Premium Services that require recurring payment, you acknowledge that any such recurring fees associated with your use of the Premium Services will be automatically billed for the initial period, for which there is an initial charge, and then again on each renewal date thereafter as agreed to by you, unless and until you cancel your use of and access to the Premium Services. By choosing a recurring payment plan, you acknowledge that such Premium Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. YOU AGREE THAT CONSISTENT RECURRING SUBSCRIPTION FEES MAY BE CHARGED AUTOMATICALLY BY US WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR CREDIT CARD INFORMATION. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE COULD REASONABLY ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, LOG INTO YOUR EVERPLANS ACCOUNT, CLICK ON “ACCOUNT SETTING” AND UPDATE YOUR BILLING PREFERENCES. IF YOU SIGN UP THROUGH OUR iOS MOBILE APP, PLEASE VISIT THIS PAGE TO EDIT YOUR PAYMENT METHOD.
- In other words: For Premium Services with recurring fees, we will bill the credit card we have on file automatically at the end of each billing period to renew your access to those Premium Services at the price you agreed to pay, unless you tell us far enough in advance that you want to cancel your access to the Premium Services or use a different credit card.
- d. Current Payment Information Required. You are responsible for keeping your credit card information current, complete and updated. If your credit card reaches its expiration date, we may attempt to contact you to update your payment information using your primary email address associated with your Account. You agree to promptly notify us and your credit card company if your credit card is canceled (e.g., for loss or theft) or if you become aware of potential breach of security. You agree that we (via our Payment Processor) may continue charging your credit card for Premium Services with recurring fees unless you have terminated your access to those Premium Services before the end of the applicable billing period. If any fee is not paid in a timely manner, or our Payment Processor is unable to process your transaction using the credit card information you provided for payment, we reserve the right to suspend or terminate your access to the Premium Services.
- In other words: You must keep your credit card information current. We can suspend or terminate your access to the Premium Services if you don’t pay on time.
- e. Applicable Fees. All fees and charges are prepaid and nonrefundable. Beyondly may change the fees and charges in effect, or add new fees and charges from time to time, but we will notify you of any such changes in advance through your primary email address associated with your Account. Again, it is your responsibility to keep your contact information and payment information current and updated.
- In other words: We do not issue refunds, and we will let you know if we change any fees.
- f. Free Trials and Other Promotions. Any free trial or other promotion that gives you access to the Premium Services must be used within the specified time of the trial. You must stop using and cancel your access to the Premium Services before the end of the applicable trial period to avoid being charged for the Premium Services. If you cancel prior to the end of the trial period and are inadvertently charged for a Premium Services, please contact us through our help center at https://help.everplans.com/customer/portal/emails/new.
- In other words: Be sure to cancel your access to the Premium Services before the end of the trial period to avoid being charged.
- g. Auto-Renewal for Premium Services. Unless you opt out of auto-renewal of the Premium Services that involve specific terms or recurring payments, which can be done through your account settings https://webapps.everplans.com/e/#/cm/account-settings, any such Premium Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Premium Services at any time, log into your Everplans account here: https://my.everplans.com/users/sign_in and navigate to https://webapps.everplans.com/e/#/cm/account-settings where you will see a button that says “Manage Billing and Premium Services”, any Premium Services you have and cancellation will be effective immediately. If you sign up through our iOS mobile app, visit this page to cancel, in the subscription management section of the applicable App Store. If you terminate a Premium Service, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. The cancellation will take effect the day after the last day of the current subscription and you will be downgraded to the Freemium Services. Again, please note that any charges submitted to or processed by our Payment Processor before we could reasonably act in response to such cancellation will not be affected. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SERVICE THROUGH YOUR ACCOUNT SETTINGS HTTPS://WEBAPPS.EVERPLANS.COM/E/#/CM/ACCOUNT-SETTINGS OR TERMINATE YOUR EVERPLANS ACCOUNT BEFORE THE END OF THE RECURRING TERM. PREMIUM SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS. EVERPLANS WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.All provisions of these Terms which by their nature should survive termination shall survive, including without limitation, any licenses to Basic Information, Public Information, or Aggregate Information, ownership provisions, warranty disclaimers, indemnity and limitation of liability.
- In other words: Cancellation is effective immediately but does not affect charges already incurred. Parts of this agreement still apply to you even after you cancel your Account.
- h. Reaffirmation of Authorization. Your non-termination or continued use of a Premium Service with recurring payments reaffirms that we are authorized to charge your Payment Method for that Premium Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
8. Mobile Applications and In-App Purchases.
You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
Through our mobile applications, you may purchase (“In-App Purchase”) certain goods or features designed to enhance the performance of the Services. When you make an In-App Purchase, you are doing so through either the Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions, available at http://www.apple.com/legal/internet-services/itunes/us/terms.html and http://play.google.com/intl/en_us/about/play-terms.html). Everplans is not a party to any In-App Purchase.
Apple App Terms
These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
- Both you and Everplans acknowledge that the Terms are concluded between you and Everplans only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that Everplans, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Everplans, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Everplans acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both you and Everplans acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
9. Warranty Disclaimer
We have no special relationship or fiduciary duty to you. You release us from all liability for any release of Your Information, including without limitation your Secure Information, including without limitation any sections of your Secure Information marked as only available for release after you are declared dead (the “After Death Sections”) pursuant to our (a) receipt from you of any instructions or permissions authorizing such release to any other person, including without limitation any Read Or Write Access Deputy or (b) compliance with any Laws.
In other words: If we received valid instruction regarding a release of information, we’ll do what it says, and you won’t hold that against us.
We use industry standard (or better) administrative, physical and technical safeguards to protect the security, confidentiality of your Account and Your Information, including without limitation your Secure Information. Nevertheless, we cannot guarantee absolute security, and no security measures are 100% effective and fool-proof. THE SERVICES, INCLUDING WITHOUT LIMITATION ALL CONTENT, INFORMATION, FUNCTION, AND MATERIALS, IS PROVIDED “AS IS,” “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, TIMELINESS, USEFULNESS, RELIABILITY OF ANY OPINION, ADVICE OR OTHER CONTENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICES WILL BE TIMELY, SECURE, FREE FROM HACKING OR OTHER SECURITY INTRUSION, UNINTERRUPTED, ERROR FREE, OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SERVICES.
OTHER THAN AS REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL EVERPLANS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OR MATERIALS OBTAINED THROUGH THE SITE OR THIRD PARTY SITE, OR BY YOUR RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED THROUGH A THIRD PARTY SITE. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING THE COMPLETENESS, ACCURACY OR USEFULNESS OF ANY OPINION, ADVICE, RESULTS, INFORMATION OR MATERIALS AVAILABLE THROUGH THE SITE OR OBTAINED THROUGH A THIRD PARTY SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE, MATERIALS OR OTHER INFORMATION. NO ADVICE, OPINION, RESULTS, INFORMATION OR MATERIALS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
In other words: While we believe we provide some of the best security safeguards for an internet based consumer product and are constantly improving, no site can promise 100% security. The Services are provided “as is.” You should evaluate any Content or information you receive through the Services or any Third Party Site on your own or with your own outside professional advice.
10. Everplans is Not a Licensed Professional
EVERPLANS IS NOT A LICENSED HEALTHCARE PROVIDER, MEDICAL PROFESSIONAL, LAW FIRM, OR FINANCIAL ADVISORY FIRM, AND THE EMPLOYEES OF EVERPLANS ARE NOT ACTING AS YOUR HEALTHCARE PROVIDERS, MEDICAL PROFESSIONALS, ATTORNEYS, OR FINANCIAL ADVISORS. THE SERVICES ARE NOT, AND SHOULD NEVER BE, A SUBSTITUTE FOR THE ADVICE OF A LICENSED HEALTHCARE PROVIDER, MEDICAL PROFESSIONAL, ATTORNEY, OR FINANCIAL ADVISOR. EVERPLANS CANNOT AND DOES NOT PROVIDE MEDICAL, LEGAL, OR FINANCIAL ADVICE. EVERPLANS IS NOT PERMITTED TO ENGAGE IN THE PRACTICE OF MEDICINE, LAW, OR FINANCIAL ADVISING. EVERPLANS IS PROHIBITED FROM PROVIDING ANY KIND OF ADVICE, EXPLANATION, OPINION OR RECOMMENDATION TO YOU ABOUT (A) POSSIBLE DIAGNOSES, MEDICAL CONDITIONS, MEDICAL TREATMENT, LIFE EXPECTANCY, OR PROGNOSES; (B) LEGAL RIGHTS, REMEDIES, DEFENSES, OPTIONS, SELECTION OF FORMS OR STRATEGIES; OR (C) ANY KIND OF ADVICE, EXPLANATION, OPINION OR RECOMMENDATION ABOUT POSSIBLE FINANCIAL INVESTMENTS OR STRATEGIES.
In other words: Everplans does not and cannot provide medical, legal or financial services, and should never be used as a substitute for the advice of a licensed professional.
The information or materials that you obtain or receive from Everplans, and its employees, contractors, partners, sponsors, advertisers, licensors or otherwise on or through the Services is for informational purposes only. All medically related information comes from independent health care professionals and organizations. At no time does Everplans review the information you provide us for legal sufficiency, draw legal conclusions, provide legal advice, or apply the law to the facts of your particular situation. Neither Everplans nor the Services are intended to provide personalized financial or tax advice, and you hereby agree that any information provided to or accessed by you from time to time on or through the Services is not developed or provided by Everplans as investment advice and will not be used or treated by you as investment advice.
In other words: Anything you access through the Services is for informational purposes only, and you won’t use it as personalized advice.
You shall defend, indemnify and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from Your Information, violation of these Terms, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
In other words: You will reimburse us for any loss we suffer that is tied to your Account and results from any use or misuse of the Services, violation of this agreement, or infringement of any third party’s right.
12. Limitation of Liability
TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL WE, OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE TO YOU OR TO YOUR READ OR WRITE ACCESS DEPUTIES, HEIRS, SUCCESSORS OR YOUR ESTATE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COMPENSATORY, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO (I) THE USE OF, OR THE INABILITY TO USE, THE SERVICES, CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, (II) UNAUTHORIZED ACCESS TO OR LOSS, CORRUPTION OR ALTERATION OF YOUR INFORMATION, DATA, TRANSMISSIONS, CONTENT OR OTHER INFORMATION, (III) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION) (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICES, (V) EVERPLANS’ ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT OR CREDIT CARD INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM, (VI) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF YOUR INFORMATION OR ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT, (VII) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING THE SERVICES OR (VIII) ANY OTHER MATTER RELATING OT THE SERVICES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, ANTICIPATED PROFITS, GOODWILL, LOST BUSINESS, USE, DATA, SALES, COST OF SUBSTITUTE SERVICES, OR OTHER INTANGIBLE LOSSES (HOWEVER ARISING), EVEN IF EVERPLANS OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF the greater of (A) fees paid to us for the particular Services during the immediately previous three (3) month period or (B) $500.00.
In other words: Our legal liability to you is limited. Please understand that we cannot run our business without it.
13. Dispute Resolution
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of New York , without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Everplans and limits the manner in which you can seek relief from Everplans. Both you and Everplans acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Everplans’ officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Everplans will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Everplans will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Everplans may assert claims, if they qualify, in small claims court in New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND EVERPLANS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Everplans are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Everplans over whether to vacate or enforce an arbitration award, YOU AND EVERPLANS WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Everplans is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Everplans, 20 West 20th Street,
Suite 1006, New York, NY 10011 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Everplans to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Everplans agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Everplans.
We can modify, amend, change or replace any of the terms, conditions or provisions of these Terms, or change, suspend or discontinue the Services (including without limitation the availability of any feature, database or content) at any time by replacing these Terms on the Site and by sending you a notice through the Services via email. It is your responsibility to check these Terms periodically for changes, and to keep your email address current. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. Your continued use of the Services following notification of any changes to these Terms constitutes acceptance of those changes. If you disagree with the new terms, please stop using the Services (but, before doing so, you may want to export and delete your Secure Information and your Account from the Services). In the unlikely event that we discontinue the Services, we will notify you to allow you to export Your Information.
In other words: This agreement may change, and if you continue using the Services after such change you will be deemed to have accepted the new terms. We don’t anticipate shutting down, but in case we do, we want you to be able to get Your Information.
a. Entire Agreement. These Terms and all other Everplans agreements and policies expressly incorporated by reference, each as may be amended or modified by Everplans in accordance with its terms from time to time, together constitute the entire agreement between you and us and govern your use of the Services, and supersede all prior or contemporaneous communications and agreements of any kind between you and us with respect to the Services. If any incorporated agreements or policies conflict with these Terms, these Terms shall control.
b. Section Headings and “In Other Words.” The section headings and “in other words” mini-paragraphs are for convenience only, shall not affect their interpretation, and shall have no legal or contractual effect. If the terms and conditions of these Terms and the section headings and “in other words” mini-paragraphs conflict, the terms and conditions of these Terms shall prevail.
In other words: We tried to make this as simple as possible, but the section headings and “in other words” mini-paragraphs are not actually part of the agreement. You have to read the full Terms.
c. Force Majeure. We shall not be liable for any failure to perform our obligations under these Terms where such failure results from any cause beyond our reasonable control, including without limitation mechanical, electronic or communications failure or degradation.
d. Waiver and Severability. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms. Waiver of compliance in any particular instances does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
In other words: The only valid way for us to waive your compliance with any of this agreement is by written notice from us. If any part of this agreement is found to be invalid, the rest still stands.
e. Assignment. These Terms are personal to you, and you may not assign, transfer or sublicense any of your rights or obligations under these Terms without Everplans’ express prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
f. No Relationship. No agency, partnership, joint venture or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
g. Cancellation and Termination. Again, you may cancel your Account and export and delete your Secure Information at any time. Everplans may also suspend or terminate your Account if you violate these Terms. Moreover, certain features of the Services may not be available or supported in perpetuity. You agree that Everplans shall have the right to change features associated with the Services in our sole discretion, and that we may choose to discontinue support of Services at any time. If we elect to discontinue any portion of the Services, we will provide you notice of such changes in order to give you reasonable time to export and/or delete your Secure Information. You shall not be entitled to a refund of the any subscription fee for a Premium Service under any such circumstances. We may attempt to notify you before suspending or terminating your Account so that you can export or delete your Secure Information, but we reserve the right to immediately suspend or terminate your Account in certain circumstances, such as causing harm to another user, disrupting other users’ use of the Services, or causing Everplans potential legal liability.
h. Notices. Unless otherwise specified in these Terms, all notices under these Terms will be in writing and will be deemed to have been duly given when (i) receipt is electronically confirmed, if transmitted by facsimile email; (ii) received, if personally delivered or sent by certified or registered mail, return receipt requested; or (iii) the day after it is sent, if sent for next day delivery or recognized overnight delivery service. Electronic notices should be sent by contacting us through our help center at https://help.everplans.com/customer/portal/emails/new
Contact: You may contact us at the following address:
20 West 20th Street
New York, NY 10011