Welcome to Every! We’re glad you have decided to join the Every community.
This document contains the terms and conditions (the “Terms”) that apply to companies that use the Every website, the Every mobile application, and related services we offer (the “Every Platform”).
THESE TERMS CONTAIN BOTH A MANDATORY INDIVIDUAL ARBITRATION PROVISION AND A JURY TRIAL AND CLASS ACTION WAIVER PROVISION, WHICH MEANS THAT YOU AGREE TO RESOLVE ANY DISPUTES OR CLAIMS BETWEEN US ABOUT THESE TERMS AND YOUR USE OF THE EVERY PLATFORM IN ARBITRATION ON AN INDIVIDUAL BASIS, INSTEAD OF IN FRONT OF A JURY IN A COURT OF LAW. THIS ALSO MEANS YOU MAY NOT PARTICIPATE IN A CLASS ACTION LAWSUIT AGAINST US. YOU SHOULD READ SECTION 11 FOR MORE DETAILS ABOUT YOUR DISPUTE RIGHTS, INCLUDING YOUR RIGHT TO OPT OUT OF THE ARBITRATION AGREEMENT.
1. Using the Every Platform
1.1. Overview. The Every Platform allows you to easily open business checking and savings accounts (your “Every Checking Accounts”) to deposit ,funds, make payments, make automated payroll deposits to your Employees (“Every Direct Deposits”), facilitate your Employees’ enrollment in the Every Advance earned wage access program, and to withdraw cash at ATMs or make purchases with the debit card associated with your checking account (your “Every Debit Card” and collectively, the "Services"). You may also use the Every Platform to deposit checks into your Every Checking Accounts electronically, and to link other bank accounts you own to make deposits to your Every Checking Accounts.
1.2. Eligibility. By agreeing to these Terms, you are promising that: (a) you are at least 18 years old; (b) your Company has not previously been suspended, removed or deactivated from the Every Platform or an Every Account; (c) you are a legal resident of the United States; and (d) Every Platform your use of the Every Platform is in compliance with any and all applicable laws and regulations. Any use of or access to the Services for consumer or non-commercial purposes, or by any individual who is not your employee, contractor, agent, or other individual permitted to use your Every Account on your behalf is strictly prohibited and in violation of these Terms.
1.3. Creating And Securing Your Every Account. To use the Every Platform, you need to create an Every Account first. You will need to provide Company information and certain personal information (collectively, "Company Information"), when you apply for an Every Account. Company Information may include your registered business name and state of incorporation, the business address, ownership details, the nature of the business, and other business information we may request from time to time, the name, contact information, and date of birth of Administrators or beneficial owners, and other personal information; and a corporate registration certificate, proof of address, personal identification, and any other documentary information used to verify business and personal information. The information you provide to us when you apply for, and while you use your Every Account must be true, accurate, and complete, and you agree to keep Company Information up-to-date at all times. We provide Company Information to our Banking Providers and other third-party service providers to determine your eligibility for access to the Services. We rely on the accuracy of the Company Information you provide us when opening and maintaining your Every Account. We may deny your application, suspend provision of the Services to you, or close your Every Account if Company Information is out of date, incomplete, or inaccurate.
1.4. Account Management and Security. You must specify at least one Administrator to manage your Every Account when submitting your application. Administrators can add, remove, or manage additional Administrators; view transactions and run reports; provide or update Company Information; connect third-party services and other bank accounts to your Every Account; and perform other tasks to manage your Every Account. You are responsible for any actions or failure to act on the part of Administrators, or those using their credentials to access your Every Account. You are solely responsible for the activity that occurs on your Every Account, and you must keep your Every Account password secure. We encourage you to use "strong" passwords (for recommendations on what constitutes a strong password, check the National Institute of Standards and Technology (NIST)) with your Every Account. You must notify Every immediately of any breach of security or unauthorized use of your Every Account. Every will not be liable for any losses caused by any unauthorized use of your Every Account. We may suspend access to your Every Account if we believe that your Every Account has been compromised.
2. Every Checking Accounts and Your Every Debit Card
When you open an Every Account, you will be eligible to apply for one or more Every Checking Accounts provided by your Banking Provider. If your application is accepted, you can use the Every Platform to access and manage your Every Checking Accounts and your Every Debit Card, view your transaction history and other Every Checking Account information, view, review and approve your Employees’ Every Advance requests, perform Every Payroll certain transactions, and access various features of your Every Checking Account and Every Debit Card. Your use of the Every Platform to access your Every Checking Account features is governed by these Terms. However, the Every Checking Accounts, the Every Debit Card and any transactions you make on your Every Checking Accounts or Every Debit Card (including transactions you initiate through the Every Platform) are covered by the Banking Provider Agreements located here.
Each time you use the Every Platform to access your Every Checking Accounts you are expressly authorizing Every and your Banking Provider to act on the instructions we receive from you while you are logged in to your Every Account, and any actions we take on your behalf based on the instructions we receive from you will have the same legal effect as instructions signed by you. We reserve the right to deny transactions or any other actions you authorize through the Every Platform if (a) you do not have enough available funds in your Every Checking Account to make a transfer or payment; (b) the Every Platform or your mobile device are not working properly; (c) we are unable to carry out your instructions due to circumstances beyond our control; (d) your Every Checking Accounts are subject to legal process or other lawful restrictions that prevent us from carrying out your instructions; (e) your instructions are incomplete or inaccurate, or you do not follow the procedures in this or any other agreement you have with us or your Banking Provider; (f) your login and password have been reported lost or stolen, if we canceled or disabled your login and password, or if we have disabled your Every Account; or (g) we reasonably suspect that you or someone else is using or accessing your Every Account or Every Checking Accounts for fraudulent or illegal purposes. Please review your Banking Provider Agreements for information about additional restrictions on use of your Every Checking Accounts.
3. Every Payroll
3.1. Overview. You may use Every Payroll to calculate Employee payroll amounts, schedule and process Every Direct Deposit payments to your Employees, pay any applicable payroll taxes, and, if required withhold wage payments to comply with local, state, and federal laws. You understand and agree that: (a) we will rely on the information you and your representatives provide us to make Every Payroll available to you and your Employees; (b) we are not responsible or liable to you or to your Employees for any errors that occur as a result of errors in the information you provide us; (c) Every is not acting in a fiduciary capacity for you or your Employees; (d) using Every Payroll does not relieve you of your obligations under local, state, or federal laws or regulations to retain records relating to your use of Every Payroll; and (e) any information that we provide you in connection with Every Payroll is for informational purposes only and does not constitute legal, tax, or accounting advice from us to you. Prior to using Every Payroll, and as of each Every Payroll processing date (“Every Payroll Date”) you must: (i) obtain and maintain an Every Checking Account in good standing with sufficient funds to pay any amounts owed to your Employees; (ii) obtain and maintain authorization from each Employee to receive Every Direct Deposit transfers; and (iii) provide any required federal, state, and local powers of attorney, proof of federal, state, and local tax identification numbers, and any other authorizations or information we require through your Every Account (the “Every Payroll Requirements”). We may be unable to make payments on the Every Payroll Date if you fail to meet the Every Payroll Requirements.
3.2. Every Payroll Data. To initiate Every Payroll payments, you must submit Employee information, wage amounts, employee tax and other withholding amounts, employee benefits, and all other required information (“Payroll Data”) prior to the Every Payroll Date cut-off times set forth in your Every Account. Each time you submit Payroll Data through your Every Account and initiate Every Payroll payments, you acknowledge and agree that (a) it is your sole responsibility to review the Payroll Data, (b) the Payroll Data you have submitted is accurate and complete, (c) you will immediately notify us of any incorrect or incomplete information, (d) we are not responsible for any penalties or losses you or your Employees incur as a result of any incomplete or inaccurate Payroll Data you submit to us, and you waive any claim against us for such penalties or losses, (e) you may incur additional charges or fees that we or your Employees may incur that result from correction of inaccurate or incomplete Payroll Data, and (f) we may refuse to act on Payroll Data or instructions you provide us in our sole discretion.
3.3. Every Checking Account Debit and Credit Authorizations. On or prior to Every Payroll Date, you authorize us to debit your Every Checking Account in the amount necessary to fund Every Direct Deposit payments, pay Employee payroll taxes, and pay any other amounts you owe in connection with your use of the Every Platform (collectively, the “Payroll Amount”). You also authorize us to initiate credit entries to your Every Checking Account if we are required to return unpaid funds to you. These authorizations will remain in full force and effect until we receive written notice from you withdrawing such authorizations in such time and such manner as to afford us a reasonable opportunity to act upon such notice. You acknowledge that our origination of debit transactions from your Every Checking Account and the transmission of Every Direct Deposits to an Employee’s Every Checking Account must comply with applicable laws, rules, and regulations, including the NACHA Rules and Article 4A of the Uniform Commercial Code, as adopted in California and as may be amended from time to time. You agree to maintain a balance in your Every Checking Account sufficient to fund the Every Payroll Amount on each Every Payroll Date. If you have insufficient funds in the Every Checking Account, or if you refuse to pay the Every Payroll Amount: we will not be (a) able to pay your Employees or any of the third parties to whom you have requested that we make payments, (b) liable for any losses that you or anyone else incurs that results from such failure or refusal to pay, and (c) responsible for submitting any tax liabilities you may owe to state or federal authorities. Your obligation to maintain sufficient funds in your Every Checking Account to cover the Every Payroll Amount will survive termination of your Every Account, and we or your Banking Provider may set off any amounts you owe against any amounts we owe you to obtain payment of the Every Payroll Amount.
3.4. Taxes and Our Liability to You. It is your responsibility to provide us with accurate and complete tax withholding information, and we choose not to submit tax payments on your behalf if you do provide us with the required information prior to the Every Payroll Date. If we fail to make timely payroll tax payments to the appropriate tax authorities in accordance with your instructions, we will: (a) remit the payroll taxes we debited from your Every Checking Account to the appropriate tax authority; and (b) reimburse you for any penalties imposed on you by the tax authorities that resulted from such failure; provided that you agree to make reasonable efforts to mitigate any penalties or losses that resulted from our failure to pay. You further agree that (i) the remedies set forth in Sections 3.4(a) and 3.4(b) are your sole remedy for any other losses or penalties you incur, whether directly or indirectly, as a result of such failures; and (ii) the tax authorities will hold you solely responsible for timely payment of your Employees’ employment taxes. Accordingly, you should enroll in the U.S. Treasury Department’s Electronic Federal Tax Payment System (“EFTPS”), to monitor your IRS account and ensure that you are making timely tax payments. You may enroll in the EFTPS online at www.eftps.gov, or by calling (800) 555-4477 for an enrollment form. State tax authorities generally offer similar means to verify tax payments, and you should contact the appropriate state offices directly for details.
3.5. Every Payroll Termination. If you or we terminate your use of Every Payroll or terminate your Every Account in accordance with Section 6, then such termination may not be reversible, and as of the time of such termination we will have no further obligation to make additional payroll tax filings on your behalf. Notwithstanding the foregoing, upon termination of your use of Every Payroll, you must make specific elections regarding whether you would like us to make any final payroll tax filings on your behalf. If you do not make any elections promptly following termination, then (a) you authorize us to make any such elections on your behalf, and (b) you acknowledge and agree that we may rely on any elections you make or that we make on your behalf, and we are not responsible or liable for any errors or losses that directly or indirectly result from such reliance.
4. Every Advance Program
4.1. If you enroll in the Every Advance program, your Employees may use the Every Advance feature to request an instant cash advance on wages they have already earned from you but that have not been paid to them. Every Advances are solely for your Employees’ benefit and convenience. If we approve an Employee’s request, we will instantly deposit the requested amount into the Employee’s Every Checking Account. Every Advances are completely free and you may not charge your Employees to receive an Every Advance.
4.2. Enrollment and Approval of Every Advance Requests. You can enroll in the Every Advance program to make Every Advances available to your Employees through the Every Platform. To enroll, you must have an active Every Account, you must have at least one Employee who has an active Every Checking Account and has signed up to receive Every Advances, and you must have an Every Checking Account in good standing. Every time one of your Employees requests an Every Advance, we will automatically verify your Employee’s employment status, the wages your Employee has earned but has not been paid at the time of the request, and the Employee’s Every Direct Deposit information through the Every Platform. If we approve your Employee’s Every Advance request, we will instantly deposit the amount of the Every Advance in your Employee’s Every Checking Account. The amount of the Every Advance will depend on the wages already earned by your Employees at the time of the Employee’s request, the Employee’s Every Checking Account transaction history, minimum wage laws in the Employee’s state, and other risk-based factors. Every will only process one Every Advance per Every Payroll period per Employee.
4.3. Every Advance Repayment; Every Direct Deposit Deduction Consent. When we process your Employee’s next Every Direct Deposit payment, you authorize us to (a) withhold the amount of the Every Advance from the Employee’s Every Direct Deposit payment amount; and (b) debit your Every Checking Account in the amount of the Every Advance. We will not be responsible to you for any losses you suffer if you incur any overdraft charges or other fees that result from any debits we make related to repayment of your Employees’ Every Advances.[If your Employee terminates their employment relationship with you prior to the end of the subsequent Every Payroll Date, or elects to un-enroll in the Every Direct Deposit program, you authorize us to: (a) except where prohibited by applicable employment laws, deduct the amount of the Every Advance from the Employee’s final (in the event of termination of employment) or subsequent (in the event of un-enrollment in the Every Direct Deposit program) paycheck; and (b) debit your Every Checking Account in the amount of the Every Advance amount.] [You understand and agree that unless an Employee withdraws consent to debit the Every Advance amount from the Employee’s next Every Direct Deposit transfer, your consent to debit your Every Checking Account in the amount of the Employees’ Every Advance amount is irrevocable.]
5. Connected Accounts and Third-Party Account Information To enable us to provide certain features of the Every Platform you may direct us to retrieve bank account transaction history and balance information from other bank accounts you own, and other information about you from accounts you maintain with other third parties (each, a “Connected Account”). When you connect a Connected Account to your Every Account, you consent for one of our third-party service providers (“Service Providers”), such as Plaid, to use your Connected Account username and password to retrieve Connected Account information (“Connected Account Data”). For your security, we never see or store your Connected Account username and password. By connecting a Connected Account, you hereby grant us and our Service Providers a limited power of attorney, and you hereby appoint us and our Service Providers as your true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for you and in your name, place and stead, in any and all capacities, to access Connected Accounts and documents, retrieve Connected Account Data, and use your Connected Account Data with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, to the same extent and for the same purposes as you might or could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN WE OR ONE OF OUR SERVICE PROVIDERS ACCESSES AND RETRIEVES CONNECTED ACCOUNT DATA, WE AND OUR SERVICE PROVIDERS ARE ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF, OR ON BEHALF OF THE CONNECTED ACCOUNT PROVIDER. We are not responsible for the products and services provided to you by any Connected Account provider, or for the timeliness, accuracy, deletion, non-delivery or failure to store any transaction data, communications, personalization settings, or other Connected Account Data. For example, when displayed through the Every Platform, Connected Account Data is only as fresh as the time shown, which reflects when the Connected Account Data is obtained from the Connected Account provider. Such information may be more up-to-date when obtained directly from the Connected Account provider. You can refresh your Connected Account Data by following the instructions in your Every Account. We do not review or verify any Connected Account Data we receive, and we are not responsible for any losses, damages, or costs you incur due to any inaccuracies in Connected Account Data. We also may not be able to foresee or prevent technical difficulties or service interruptions that result in our failure to obtain, or for loss of Connected Account Data.
6. Prohibited Uses; Closing Your Every Account; Effect of Termination
6.1. Prohibited Uses. You may only use the Every Platform for lawful purposes. We may suspend your access to the Every Platform or close your Every Account if: (a) we suspect you are committing fraud or are engaging in illegal activity; (b) you violate the terms of the Banking Provider Agreements, or any of these Terms; (c) you act abusively toward us, your Banking Provider or to other Every users; (d) we believe we are required to do so by law, or if we are ordered to do so by a regulatory authority; (e) you use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithms or methodology to access, acquire, copy or monitor the Every Platform or any portion of the Every Platform; (f) you post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Every Platform; (g) you attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Every Platform; (h) you access or use the Every Platform in a way that may infringe upon the trademark, copyright, privacy, or publicity rights or any other intellectual property or other rights of any third party; (i) you use your Every Account or the Services for any personal, family, household, or other use that is not related to Company’s business purpose; (j) you use your Every Account or the Services for the benefit of an individual, organization, or country identified on the United States Office of Foreign Asset Control’s Specially designated Nationals List; (k) you use your Every Account or the Services to collect any market research for a competing business; (l) you impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or (m) you take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure.
6.2. Every Account Termination. We may terminate these Terms, or close your Every Account at any time for any reason (including, without limitation, for any activity that may create harm or loss to the goodwill of Every) by providing you notice. We may suspend your Every Account and your ability to access funds in your Every Checking Accounts, or terminate these Terms if (a) we determine in our sole discretion that you are ineligible for the Services because of significant fraud or credit risk, or any other risks associated with your Every Account; (b) your use of the Services in a prohibited manner or otherwise does not comply with any of the provisions of these Terms; or (c) we are otherwise entitled to do so under these Terms.
6.4. Closing your Every Account. To close your Every Account, please email email@example.com.
7. Consent to Electronic Notices and Doing Business Electronically.
7.1. Consent to Receive Electronic Notices. We can only provide the Every Platform and communicate with you electronically via email, through Every Platform notifications, or via SMS to your mobile device, but we are required by law to get your consent to receive notices from us (“Notices”) electronically first. This section describes your rights regarding electronic Notices from us. We may send you automated and voluntary Notices about your Every Account and your use of the Every Platform, and your Every Checking Accounts on behalf of your Banking Provider. You can choose the types of Notices, and the methods we use to notify you through your Every Account settings. You can change your preferences or disable Notices at any time. We may add new Notice methods or discontinue provision of electronic Notices at any time in our sole discretion. Any Notice we send you will be deemed to have been received by you no later than 5 business days after we send the Notice to you, whether or not you received the Notice. A Notice is considered to be sent according to the time stamp on Every’s servers indicating the Notice was sent to your preferred Notice method. You agree that these are reasonable procedures for sending and receiving electronic Notices.
7.2. Consent to Receive SMS Messages and Mobile Phone Calls. You consent to receive SMS messages, and prerecorded and artificial voice and autodialed telephone calls from us, our agents, representatives, affiliates, or anyone communicating on our behalf at the mobile number you provided in your Every Account with service-related information, questions about your use of the Every Platform, or Every marketing information. You promise that the mobile phone number you provided us belongs to you and not someone else, and that you are permitted to receive calls and text messages at that mobile phone number. You agree to notify us immediately via email or through the Every Platform if you stop using your mobile phone number. Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you. You agree that we may communicate with you via SMS or mobile phone even if you incur costs to receive such phone messages, text messages, emails, or other means.
7.3. Delays or Errors. You understand that the Notices we provide you through your Every Account may be delayed or prevented due to circumstances beyond our control. We will do our best to provide Notices to you in a timely manner and with accurate information, but we cannot guarantee the delivery, timeliness, or accuracy of the content of any Notices. We are not liable to you, your Employees, any Connected Account provider, your Banking Provider, our Partners and service providers or to anyone else due to any delays, failure to deliver, or misdirected delivery of any Notices, or for any errors in the content of a Notice; or for any actions taken or not taken by you or any other person in reliance on a Notice. We will never include your password in any Notices we provide. However, Notices from us may include your username and information about your Every Account, your Every Checking Accounts or your Every Debit Card. Depending upon the Notice method you select, information such as your Every Checking Account balance or the date of your next Every Direct Deposit payment or Every Advance deductions may be included, and may be visible to anyone who has access to that Notice method. If you choose to receive Notices from us via text message, your mobile service provider may charge you standard text messaging fees.
7.4. Withdrawing Consent to Receive Electronic Notices. You may withdraw your consent to receive Notices electronically by contacting us at firstname.lastname@example.org If you withdraw your consent, we reserve the right to limit or close your Every Account, and the legal validity and enforceability of prior Notices. If you wish only to withdraw your consent to have notices provided via SMS, you may opt-out of receiving SMS from us by replying 'STOP' to any message you receive from us. Upon receipt of your 'STOP' message, we will send you an SMS message to confirm that you have been unsubscribed. At that point, you will no longer receive any further SMS messages from Every. If you need any assistance, you can always text “HELP” to any message you receive from us or email us at email@example.com.
8. Intellectual Property Rights.
8.1. Every Materials; Feedback. The text, graphics, images, logos, button icons, photographs, editorial content, notices, software and other materials we provide you, including the manner in which we arrange or present them to you (the “Every Materials”) are protected under both United States and other applicable copyright, trademark and other laws. The Every Materials belong to Every, or are licensed to Every by our Partners. We grant you the right to view and use the Every Materials, but we or our partners retain ownership of the Every Materials at all times. You may download or print a copy of the Every Materials for personal, non-commercial use only. Any distribution, reprint or electronic reproduction of any Every Materials in whole or in part for any other purpose is expressly prohibited without our prior written consent. You agree not to use, nor permit any third party to use, the Every Materials in a manner that violates any applicable law or these Terms. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Every Platform (“Feedback”), then you hereby grant Every an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty free right to exploit the Feedback in any manner and for any purpose, including to improve the Every Platform and create other products and services.
8.2. Our Rights to Content You Provide. As an Every user, we may allow you to post content on bulletin boards, blogs social media, and various other publicly available locations on the Every Platform. These forums may be hosted by Every or by one of our third-party service providers on our behalf. You agree in posting content to follow certain rules. You are responsible for all content (“Content”) you submit, upload, post or store through the Every Platform. You are responsible for any lost or unrecoverable Content. You must provide all required and appropriate warnings, information and disclosures. We are not responsible for the Content or data you submit through the Every Platform. By submitting Content to us, you represent that you have all necessary rights to the Content and you are granting us a perpetual, worldwide, non-exclusive, royalty-free, sub-licenseable and transferable license to use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of the Content in connection with marketing, promotions, and for any other business purpose related to the Every Platform. We may redistribute part or all of and derivative works from your Content in any media formats and through any media channels we choose. You also hereby grant each Every user a non-exclusive license to access your posted content through the Every Platform, and to use, reproduce, distribute, prepare derivative works of, display and perform such Content to enable the functionality of the Every Platform. You agree not to use, nor permit any third party to use, the Every Platform to: (a) post or transmit any message which is libelous or defamatory, or which discloses private or personal matters concerning any person; (b) post or transmit any message, data, image or program that is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive; that encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; or that is otherwise inappropriate; (c) post or transmit any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks or service marks used in an infringing fashion; or (d) interfere with other Every users’ use of the Every Platform. You are posting Content to the Every Platform voluntarily, and posting Content does not create an employee relationship between you and Every. You may not copy or use personal identifying or contact information about other Every users without their permission. Unsolicited emails, mailings, telephone calls, or other communications to Every users through the Every Platform are prohibited.
9. No Warranties, Limitation of Liability and Indemnification
9.1. No Warranties. Your access to and use of the Every Platform and Services may be interrupted due to malfunction of your or our equipment, software updates and maintenance, and other actions that Every, in its sole discretion, may elect to take from time to time for any reason. We will not be liable to you or anyone else for any loss, cost, or damage that result from any scheduled or unscheduled downtime, or your inability to access the Every Platform. Your sole and exclusive remedy for any failure or non-performance of the Every Platform, will be for Every to use commercially reasonable efforts to restart, reconnect or repair the applicable Services. WE MAKE NO WARRANTIES TO YOU ABOUT YOUR EVERY ACCOUNT OR THE EVERY PLATFORM. EXCEPT AS EXPRESSLY DESCRIBED IN THESE TERMS, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER TO YOU REGARDING YOUR EVERY ACCOUNT AND YOUR USE OF THE EVERY PLATFORM. THE EVERY PLATFORM IS PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. THIS MEANS THAT WE DO NOT GUARANTEE THAT THE EVERY PLATFORM WILL ALWAYS BE AVAILABLE FOR YOU TO USE, OR THAT THE TRANSACTION INFORMATION YOU SEE IN YOUR EVERY ACCOUNT IS ACCURATE OR UP-TO-DATE.
9.2. LIMITATION OF LIABILITY. OUR LIABILITY TO YOU IS LIMITED. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS AND SUBJECT TO APPLICABLE LAW, IN NO EVENT WILL EVERY, ITS OWNERS, DIRECTORS, OFFICERS, AGENTS, EMPLOYEES OR EVERY PARTNERS BE LIABLE TO YOU OR TO ANYONE ELSE FOR ANY LOST PROFITS OR DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO ANY DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE LEGAL THEORY OR OTHER DAMAGES ARISING OUT OF (A) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE EVERY PLATFORM, (B) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE DESCRIBED OR PROVIDED TO YOU, (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR (D) ANY OTHER MATTER RELATING TO THE EVERY PLATFORM DESCRIBED OR PROVIDED TO YOU, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE EVERY SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE EVERY SERVICES. IN THOSE STATES WHERE THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES MAY NOT APPLY, ANY LIABILITY OF EVERY, ITS OWNERS, DIRECTORS, OFFICERS AND AGENTS, EMPLOYEES OR EVERY PARTNERS IN THOSE STATES IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT WILL IN NO EVENT EXCEED ONE HUNDRED DOLLARS ($100.00).
9.3. INDEMNIFICATION. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS EVERY, OUR OFFICERS, DIRECTORS, SHAREHOLDERS, AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS, SUITS, PROCEEDINGS, LOSSES, LIABILITIES, ATTORNEY’S FEES, AND ALL RELATED EXPENSES, WHETHER IN TORT, CONTRACT, OR OTHERWISE, THAT ARISE OUT OF, RELATE TO, OR ARE ATTRIBUTABLE, IN WHOLE OR IN PART, TO YOUR BREACH OF THESE TERMS OR ANY ACTIVITY BY YOU RELATED TO YOUR USE OF THE EVERY SERVICES.
10. Additional Terms
10.2. Governing Law. These Terms and any disputes about these Terms will be governed by California law or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within the state of California, without regard to its choice of law or conflicts of law principles that would require application of the law of a different jurisdiction.
10.3. Severability. Unless any other provision of these Terms state otherwise, and to the extent not prohibited by applicable law, if any court or regulatory authority finds that any part of these Terms is invalid or unenforceable, that finding will not affect the validity or enforceability of the rest of the Terms.
10.4. Assignment. Except when prohibited by applicable law, we may assign your Every Account and our rights under these Terms in whole or in part to a third party without your permission, and the entity to whom we sell, transfer or assign your Every Account and these Terms will take our place. This means that if we merge with another company or sell the company, these Terms will still apply to you. These Terms apply only to you, and you may not transfer your Every Account to anyone else.
10.5. Waiver of Rights; Delay in Enforcement. If we do not enforce, or if we delay enforcing any of our rights under these Terms, we will not lose those rights. We may also decide to waive one or more of our rights without Notice to you, but doing so does not waive our right to enforce those rights at a later date.
10.6. Terms That Will Survive After These Terms are Terminated. Some of these Terms will remain in effect even after you have stopped using the Every Platform and have closed your Every Account. These terms include Section 8 (Intellectual Property), Section 10.2 (Governing Law), Section 10.3 (Severability), Section 10.5 (Waiver of Rights; Delay in Enforcement), this Section 10.6, and Section 11 (Arbitration; Jury Trial and Class Action Waiver).
10.7. Modification of these Terms. We reserve the right to change these Terms at any time, or to temporarily or permanently discontinue the Every Platform with or without notice to you. We also reserve the right to change the features of the Every Platform in our sole discretion. We will notify you of any changes to the Terms via email or through your Every Account, and the Terms will always indicate the date the Terms were last revised. If you don’t like the changes we make, you should stop using the Every Platform and close your Every Account. By continuing to use the Every Platform after we notify you of any changes to these Terms, (a) you are letting us know that you agree to the changes, in the same manner as you did when you first agreed to these Terms; and (b) we will not be liable to you or anyone else for any modification, suspensions, or discontinuance of the Every Platform.
10.8. Contact Information. If you have any questions regarding the Every Platform, your Every Account or these Terms please email us at firstname.lastname@example.org.
11. Arbitration; Jury Trial and Class Action Waiver
11.1. This Section 11 constitutes your agreement to arbitrate (“Arbitration Agreement”) all disputes arising under or in connection with these Terms and your relationship with us (collectively, a “Claims”). This includes Claims made by us against you, by you or anyone connected to you against us or any of our subsidiaries, affiliates, agents, employees, predecessors, successors, or assignees. Arbitration is often used to resolve Claims more efficiently than a trial, particularly where the amount of the Claims is small (lawyers are expensive!). YOU ARE WAIVING THE RIGHT TO LITIGATE A CLAIM IN COURT AND TO HAVE A JURY TRIAL ON ANY CLAIM. ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATIONS WITH OTHER ARBITRATIONS ARE NOT PERMITTED. AN ARBITRATOR CAN AWARD RELIEF ONLY ON AN INDIVIDUAL BASIS. YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR AS A PRIVATE ATTORNEY GENERAL RELATING TO ANY CLAIM.
11.2. All Claims will be decided finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (“AAA”) according to this provision and the applicable AAA rules, which may limit the discovery available to you or to us. You can obtain copies of the AAA rule and forms by contacting AAA at 1-800-778-7879 or www.adr.org. Any arbitration hearing that you attend will take place in the federal judicial district where you reside as of the date you execute this Agreement. The arbitrator will apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”) and applicable statutes of limitations, and will honor claims of privilege recognized at law.The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. While an arbitrator may award declaratory or injunctive relief, the arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s Claims. The arbitrator’s decision and judgment criteria will not have a precedential or collateral estoppel effect on Claims asserted by any individual or entity who was not party to the arbitration. If any provision of this Arbitration Agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). This Arbitration Agreement will be governed by the FAA. If a court or arbitrator decides that this Arbitration Agreement cannot be enforced as to a particular Claim for relief, then that Claim (and only that Claim) must be severed from the arbitration and may be brought in court. Individual Claims filed in small claims court are not subject to this Arbitration Agreement as long as the Claim remains in small claims court. The arbitrator alone will have the authority to interpret the scope and enforceability of this Arbitration Agreement, except that any Claim concerning the scope or enforceability of the prohibition on class, collective, or representative Claims, or Claims in arbitration for public injunctive relief, will be resolved by the state and federal courts in city and county of San Francisco, California in accordance with California law.
11.3. ARBITRATION OPT-OUT: YOU MAY OPT OUT OF RESOLVING DISPUTES BY ARBITRATION BY EMAILING US AT SUPPORT@EVERY.IO WITHIN 30 DAYS OF FIRST ACCEPTING THESE TERMS, AND TELLING US YOU WOULD LIKE TO OPT OUT OF MANDATORY ARBITRATION. YOU MUST INCLUDE YOUR FIRST AND LAST NAME, YOUR MAILING ADDRESS, YOUR EMAIL, AND YOUR MOBILE PHONE NUMBER IN THE EMAIL.
12. Apple Store Terms and Conditions.
If you downloaded the Every Platform from the Apple App Store, the following terms also apply to you:
12.1 Acknowledgement: You acknowledge that these Terms are between you and Every only, and not with Apple; and Every, not Apple, is solely responsible for the Every Platform and the content thereof.
12.2. Scope of License: The license granted to you for the Every Platform is a limited, non-transferable license to use the Every Platform on a Mac product that you own or control and as permitted by the Usage Rules set forth in the terms of service applicable to the Mac App Store.
12.3. Maintenance and Support: Every and not Apple is solely responsible for providing any maintenance and support services, for which additional fees may apply, with respect to the Every Platform. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Every Platform.
12.4. Warranty: Every is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Every Platform to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the software to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Every Platform, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Every’s sole responsibility.
12.5. Product Claims: Every, not Apple, is responsible for addressing any user or third party claims relating to the Every Platform or the user’s possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Every Platform fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
12.6. Intellectual Property Rights: You acknowledge that, in the event of any third-party claim that the Every Platform or your possession and use of the Every Platform infringes that third party’s intellectual property rights, Every, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
12.7. Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
12.8. Developer Contact Info: Email any questions, complaints or claims to email@example.com.
12.9. Third-Party Terms of Agreement: You must comply with any applicable third-party terms of agreement when using the Every Platform.
12.10. Third-Party Beneficiary: You 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 a third-party beneficiary.