EverCrowded, Inc Terms & Conditions

MERCHANT TERMS AND CONDITIONS

Effective date 01/01/2021

These Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the EverCrowded Merchant Agreement between EverCrowded and Merchant (collectively, the “Agreement”). EverCrowded, subject to the provisions of this paragraph, may amend the Terms and Conditions in its sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by EverCrowded from time to time) will be available on EverCrowded.com website. Merchant agrees that either or both of these notification methods constitute adequate notice to inform Merchant of any amendments to the Agreement and Merchant further agrees to be bound by any such amendments to the Agreement upon such notification.

Term and Termination

This Agreement will continue in effect until terminated by either party in accordance with this Section (“Term”). EverCrowded is authorized to terminate this Agreement, at any time for any reason, upon written notice to Merchant. Merchant is authorized to terminate this Agreement upon seven (7) business days prior written notice to EverCrowded. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.

Marketing

EverCrowded and its business partners may communicate with Merchant with regard to products, promotions, and other services that may be of interest to Merchant. This may include email or other communications. EverCrowded may also solicit Merchant’s opinion for market research purposes.

Intellectual Property Rights

Merchant acknowledges and agrees that, as between the parties, EverCrowded owns all interest in and to the Website, Customer Data, EverCrowded trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by EverCrowded or at EverCrowded’s direction, or assigned to EverCrowded, and any materials, software, technology or tools used or provided by EverCrowded to promote, sell/resell (as may be applicable) or distribute the Merchant Offering and conduct its business in connection therewith (collectively “EverCrowded IP”). Merchant shall keep the EverCrowded IP confidential, and shall not prepare any derivative work based on the EverCrowded IP or translate, reverse engineer, decompile or disassemble the EverCrowded IP. Merchant shall not take any action to challenge or object to the validity of EverCrowded’s rights in the EverCrowded IP or EverCrowded’s ownership or registration thereof.

If Merchant provides EverCrowded or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a EverCrowded product or service or otherwise in connection with this Agreement, any EverCrowded IP, or Merchant’s participation in the Merchant Offering, (collectively, “Feedback”), Merchant irrevocably assigns to EverCrowded all right, title, and interest in and to Feedback. In the event your assignment to EverCrowded is invalid for any reason, you hereby irrevocably grant EverCrowded and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Merchant warrants that: (A) Feedback is Merchant’s original work, or Merchant obtained Feedback in a lawful manner; and (B) EverCrowded and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Merchant agrees to provide EverCrowded such assistance as EverCrowded might require to document, perfect, or maintain EverCrowded’s rights in and to Feedback.

Representations and Warranties

Merchant represents and warrants that Merchant has the right, power and authority to enter into this Agreement.

Confidentiality

The terms for the Merchant Offering described in this Agreement are confidential, and Merchant agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if Merchant has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, EverCrowded is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).

Limitation of Liability

EXCEPT FOR MERCHANT’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. EverCrowded’S SOLE AND COMPLETE LIABILITY TO MERCHANT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS IS LIMITED TO THE AMOUNT OF FEES RETAINED BY EverCrowded HEREUNDER FOR THE PRECEDING SIX(6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF A MERCHANT IN CONNECTION WITH ANY PAYMENT MADE BY EverCrowded, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A MERCHANT WAS UNDERPAID, MUST BE MADE IN WRITING TO EverCrowded WITHIN NINETY (90) DAYS FROM THE DATE EverCrowded REMITS THE PAYMENT AT ISSUE. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY MERCHANT.

Dispute Resolution

All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 14 Dispute Resolution.

Binding Arbitration

EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN MERCHANT AND EverCrowded ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 14 TO ARBITRATE, MERCHANT AND EverCrowded ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 14). The provisions of this Section 14 shall constitute Merchant’s and EverCrowded’s written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at https://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.

To begin an arbitration proceeding, Merchant or EverCrowded must comply with the limitations provision set forth in Section 13 and submit the Dispute by making a demand for arbitration as detailed at https://www.adr.org. If Merchant demands arbitration, it shall simultaneously send a copy of the completed demand to the following address: C T Corporation System, 208 S. LaSalle Street, Suite 814, Chicago, IL 60604. If EverCrowded demands arbitration, it shall simultaneously send a copy of the completed demand to the Merchant’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. EverCrowded will reimburse those fees for Disputes totaling less than $10,000 if Merchant is the prevailing party in such arbitration. EverCrowded will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Merchant Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Merchant requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Chicago, Vermont, unless the arbitrator determines or we agree that the matter should proceed in the county of Merchant’s principal place of business.

Class Action Waiver

WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.

Choice of Law/No Jury Trial

If for any reason a Dispute proceeds in court: (i) Merchant and EverCrowded agree that any such Dispute may only be instituted in a state or federal court in Chittenden County, Vermont; (ii) Merchant and EverCrowded irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Merchant and EverCrowded agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Vermont, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) MERCHANT AND EverCrowded AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.

Injunctive Relief/Attorneys’ Fees

Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.

In the event EverCrowded is the prevailing party in any Dispute, subject to any exceptions in this Section 14, Merchant shall pay to EverCrowded all reasonable attorneys’ fees and costs incurred by EverCrowded in connection with any Dispute.

Other

The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.

This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.

Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without EverCrowded’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of EverCrowded. EverCrowded is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Merchant.

If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EVERCROWDED DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.