Terms of Use Agreement
Last Updated Date: February, 04 2024
Welcome to Everdance mobile software application (the "App"), which is provided by Everdance Inc. (collectively such entities will be referred to as "Everdance", "we," "us" or "our") and is designed to provide you with interactive videos to learn dance from our community of choreographers.
This Terms of User Agreement (this "Terms") is a binding contract between you, an individual user ("you") and Everdance governing your use of the App and the related website located at www.everdance.app ("Site," and collectively with the App, the "Service").
PLEASE READ THIS TERMS OF USE AGREEMENT VERY CAREFULLY BEFORE USING THE SERVICE
Agreement to Terms
BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS Terms. IF YOU DO NOT AGREE TO THE TERMS OF THIS Terms, YOU MAY NOT USE THE SERVICE.
Material Terms:
As provided in greater detail in this Terms (and without limiting the express language of this Terms), you acknowledge the following:
- please read these Terms (in particular, Section 6 "Terms of Sale") and Subscription Terms carefully before starting a free trial or completing a purchase for the App auto-renewing subscription services. To avoid being charged you must affirmatively cancel your subscription or a trial at least 24 hours before the end of the free trial or the current subscription period. If you are unsure how to cancel a subscription or a free trial, please visit Apple Support, Google Play Help (or any other relevant app stores support pages), or our website depending on where you have purchased your subscription. Deleting the App does not cancel your subscriptions or free trials.
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator's (the "Carrier") terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- you consent to the collection, use, and disclosure of your personally identifiable information in accordance with Everdance Privacy Policy, including with respect to the collection of location information;
- the App is provided "as is" without warranties of any kind and Everdance's liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration. By accepting this Terms, as provided in greater detail in Section 9 of this Terms, you and Everdance are each waiving the right to a trial by jury or to participate in a class action;
- the App requires access to the following services on your mobile device: your device identifier and location; and
- if you are using the App on an iOS-based device, you agree to and acknowledge the "Additional Terms for App Store Apps," below.
1. General Terms and Conditions
1.1. Privacy Policy
Your access to and use of the Service is also subject to Everdance's Privacy Policy ("Privacy Policy"), the terms and conditions of which are incorporated herein by reference.
1.2. Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we'll let you know either by posting the modified Terms on the Site or through other communications. It's important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don't agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
1.3. Health Disclaimer
Dancing, in all of its forms and and moves that may be suggested by a Everdance instructor, is a strenuous physical activity. Accordingly, you are urged and advised to seek the advice of a physician before learning the choreography/moves shown in any of the video clips on the App. Everdance is not a medical organization and its instructors or staff cannot give you medical advice or diagnosis. All suggestions and comments relating to the moves and choreography are not required to be performed by you and are carried out at your election while viewing Everdance videos. Nothing contained in this Website should be construed as any form of such medical advice or diagnosis.
By using the App you represent that you understand that physical exercise involves strenuous physical movement, and that such activity carries the risk of injury whether physical or mental. You understand that it is your responsibility to judge your physical and mental capabilities for such activities. It is your responsibility to ensure that by participating in classes and activities from Everdance, you will not exceed your limits while performing such activity, and you will select the appropriate level of classes for your skills and abilities, as well as for any mental or physical conditions and/or limitations you have. You understand that, from time to time instructors may suggest physical adjustments or the use of equipment and it is your sole responsibility to determine if any such suggested adjustment or equipment is appropriate for your level of ability and physical and mental condition. You expressly waive and release any claim that you may have at any time for injury of any kind against Everdance, or any person or entity involved with Everdance, including without limitation its directors, principals, instructors, independent contractors, employees, agents, contractors, affiliates and representatives.
1.4. Eligibility
You may use the Services only if you are 13 years or older and are not barred from using the Services under applicable law. To make a purchase via the Services, you must be 18 years or older and capable of forming a binding contract.
If you are a minor, or if you are below the applicable minimum age, you may only use Everdance if your guardian has provided us with valid consent for you to use Everdance. You may not falsely claim you have reached the minimum age if you are actually not.
2. The Service
2.1. Description
Subject to Everdance's potential blocking of certain content owned or controlled by the third parties, which blocking you hereby authorize, the Service enables you to create up to 60-second videos that incorporate locally stored sound recordings from your personal music library ("User Videos"). They person will be referred to herein as a "Creator". Creators, and all other users of the Service will be referred to herein collectively as "Users."
In addition to allowing you to create videos, the Service may also allow you to
(i) save your User Videos locally to your device;
(ii) upload your User Videos to the App or certain third party social media platforms (e.g., Instagram, Facebook, YouTube, Twitter) subject to the terms and conditions in this Terms and any usage restrictions imposed by any licensors (e.g., sound recording and/or musical work copyright owners);
(iii) communicate your User Videos to friends via different messaging services; and
(iv) publicly display and perform your User Videos and the embedded sound recordings and musical works to other Users of the Service. If the Service does not permit you to Post User Videos directly to one or more third party social media platforms, then you are not authorized by Everdance to Post your User Videos on such platforms and you are solely responsible for obtaining any necessary rights, clearances, permissions or authorizations for such Posting and may be subject to liability for your failure to do so in the event of any Posting of User Videos.
Private Accounts. You control whether the User Videos you create are made publicly available on the Service or only available to people you approve. To restrict access to your User Videos, you should elect "private account" in the profile settings page within the App.
2.2. Mobile Services
The Service will be accessible via a mobile phone, tablet or other wireless device (collectively, "Mobile Services").Your mobile carrier's normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the App and the related Mobile Services must be in accordance with this Temps.
3. Registration
3.1. Log-In Credentials
While you may always browse the public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, you must download the App and register an account with us (an "Account"). You may register using your email address or your Facebook credentials.
3.2. Accuracy of Information
When creating an Account, you will provide true, accurate, current, and complete information as Everdance requests. You agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don't, we might have to suspend or terminate your Account.
3.3. Account Security
You are responsible for the security of your account, and are fully responsible for all activities that occur through the use of your credentials, whether or not you know about them. You will notify Everdance immediately at support@everdance.app if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Everdance will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Everdance of such unauthorized use or loss of your credentials.
3.4. Messages
You may send messages to Users through the App. You represent and warrant you will only send messages through the App to Users who have given you their express consent to receive such messages, and you will indemnify and hold Everdance harmless from any and all claims arising out of your sending these messages to any Users. You are responsible for all fees and charges associated with such messages.
4. Content and Content Rights
4.1. The content used on the platform includes:
1. Everdance content that is owned by or licensed by Everdance.
2. User content, the exclusive rights to which belong to the persons who upload content to the platform.
4.2. Everdance Content
Everdance content includes: software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photos, audio, video, music and "appearance" of the Service, as well as all related intellectual property rights ("Everdance Content").
Use of the Everdance Content or materials on the Service for any purpose not expressly permitted by these Terms is strictly prohibited. Such content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors' prior written consent. We and our licensors reserve all rights not expressly granted in and to their content.
You acknowledge and agree that we may generate revenues, increase goodwill or otherwise increase our value from your use of the Services, including, by way of example and not limitation, through the sale of advertising, sponsorships, promotions, usage data and Gifts (defined below), and except as specifically permitted by us in these Terms or in another agreement you enter into with us, you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that, except as specifically permitted by us in these Terms or in another agreement you enter into with us, you
(i) have no right to receive any income or other consideration from any User Content (defined below) or your use of any videos, musical works, sound recordings or audiovisual clips made available to you on or through the Services, including in any User Content created by you, and
(ii) are prohibited from exercising any rights to monetize or obtain consideration from any User Content within the Services or on any third party service ( e.g. , you cannot claim User Content that has been uploaded to a social media platform such as YouTube for monetization).
Subject to the terms and conditions of the Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, worldwide license to access and use the Services, including to download the App on a permitted device, and to access the Everdance Content solely for your personal, non-commercial use through your use of the Services and solely in compliance with these Terms. Everdance reserves all rights not expressly granted herein in the Service and the Everdance Content. You acknowledge and agree that Everdance may terminate this license at any time for any reason or no reason.
NO RIGHTS ARE LICENSED WITH RESPECT TO SOUND RECORDINGS AND THE MUSICAL WORKS EMBODIED THEREIN THAT ARE MADE AVAILABLE FROM OR THROUGH THE SERVICE.
You acknowledge and agree that when you view content provided by others on the Service, you are doing so at your own risk. The content on our Service is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our Service.
We make no representations, warranties or guarantees, whether express or implied, that any Everdance Content (including User Content) is accurate, complete or up to date. Where our Service contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them. You acknowledge that we have no obligation to pre-screen, monitor, review, or edit any content posted by you and other users on the Service (including User Content).
4.3. User-Generated Content
4.3.1. Definition.
Users of the Service may be permitted to upload, post or transmit (such as via a stream) or otherwise make available content through the Service including, without limitation, any text, photographs, user videos, sound recordings and the musical works embodied therein, including videos that incorporate locally stored sound recordings from your personal music library and ambient noise ("User Content"). Users of the Service may also extract all or any portion of User Content created by another user to produce additional User Content, including collaborative User Content with other users, that combine and intersperse User Content generated by more than one user. Users of the Service may also overlay music, graphics, stickers, Virtual Items and other elements provided by Everdance ("Everdance Elements") onto this User Content and transmit this User Content through the Service.
All Content uploaded or otherwise published on the Service must comply with this Agreement and the law.
4.3.2. Screening User Content.
Users the ability to submit User Content to the Service.
In relation to user content - Everdance is an information intermediary and is not responsible in case of violation of the rights of third parties, since Everdance does not conduct a preliminary check of any User Content and reserves the right to remove or delete any User Content in case of violation of the rights of third parties.
In addition, we have the right – but not the obligation – in our sole discretion to remove or delete any User Content:
(i) that we consider to violate this Terms, applicable law or otherwise constitute Objectionable Content (defined in Section 4.2.8. below); or
(ii) in response to complaints from other Users or licensors of any Everdance Content, with or without notice and without any liability to you. As a result, we recommend that you save copies of any User Content that you Post to the Service on your personal device(s) in the event that you want to ensure that you have access to copies such User Content. Everdance does not guarantee the accuracy, integrity, appropriateness or quality of any User Content, and under no circumstances will Everdance be liable in any way for any User Content.
Whenever you access or use a feature that allows you to upload or transmit User Content through the Service (including via certain third party social media platforms such as Instagram, Facebook, YouTube, Twitter), or to make contact with other users of the Service, you must comply with the standards set out at 2.2. above. You may also choose to upload or transmit your User Content, including User Content that includes Everdance Elements, on sites or platforms hosted by third parties. If you decide to do this, you must comply with their content guidelines as well as with the standards set out at 2.2. above. As noted above, these features may not be available to all users of the Service, and we have no liability to you for limiting your right to certain features of the Service.
You warrant that any such contribution does comply with those standards, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.
4.3.3. Through-To-The-Audience Rights.
Any User Content will be considered non-confidential and non-proprietary. You must not post any User Content on or through the Services or transmit to us any User Content that you consider to be confidential or proprietary. When you submit User Content through the Services, you agree and represent that you own that User Content, or you have received all necessary permissions, clearances from, or are authorised by, the owner of any part of the content to submit it to the Service, to transmit it from the Service to other third party platforms, and/or adopt any third party content.
4.3.4. You Must Have Rights to the Content You Post
You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not post such sound recordings to the Service unless you have all permissions, clearances from, or are authorised by, the owner of any part of the content to submit it to the Service.You represent and warrant that:
(i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this Terms;
(ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content;
(iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
4.3.5. Licenses to User Content
You or the owner of your User Content still own the copyright in User Content sent to us, but by submitting User Content via the Service, you hereby grant us an unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide licence to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute and to authorise other users of the Services and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented.
You further grant us a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content; provided, however, that your ability to provide an image, voice, and likeness may be subject to limitations due to age restrictions.
4.3.6. Waiver of Rights to User Content.
By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
4.3.7. Objectionable Content.
You are not permitted to and agree not to Post any User Content to the Service that is or could be interpreted to be
(i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar;
(ii) promoting any product, good or service, or bigotry, discrimination, hatred, racism, inciting violence or physical harm of any kind against any group or individual;
(iii) furthering or promoting any criminal activity or enterprise or providing instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
(iv) harassing or advocating harassment of another person;or
(iii) making a political message for or against any person, party, political belief or issue, of a religious nature, or harshly critical , the copyright owner(s) thereof, or any author, contributor or royalty participant , in each of clauses (i), (ii) and (iii) of this Section, as Everdance may determine in its sole discretion (collectively, "Objectionable Content").
The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this Terms may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. If you encounter any Objectionable Content on the Service, then please email Everdance at support@everdance.app or inform us through the functionality offered on the Service. You acknowledge and agree that Everdance provides you the right to report Objectionable Content as a courtesy, and Everdance has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. Everdancer may terminate, suspend, warn or take other appropriate actions against Users for Posting Objectionable Content to the Service, including, but not limited to, the removal of all Content uploaded to the Service by a User.
4.3.8. No Liability.
For the avoidance of doubt, Everdance will not be liable for any unauthorized use of User Content by any User.
5. Intellectual Property Rights
5.1. Everdance respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
Copyright is a legal right that protects original works of authorship (e.g., music, videos, etc.). Generally, copyright protects an original expression of an idea but does not protect underlying ideas or facts.
We do not allow any content that infringes copyright. Any use of copyrighted content of others without proper authorization or legally valid reason may lead to a violation. In some cases, you may be required to provide evidence to prove that you are entitled to use copyrighted content.
If you think that any content available on or through the Service has been used or exploited in a way that violates the intellectual property rights that you own or control, please immediately send an Email Notification to: support@everdance.app.
The notification may be transmitted by Everdance to a User who has allegedly violated the rights that you own or control, and you hereby consent to such disclosure by Everdance.
5.2. Procedure for Reporting Claimed Infringement
In the case of a request from third parties whose copyrights have been violated by posting material in the Everdance application, the responsibility for such violation lies with the persons who made such placement.
From the moment of receiving such requests, Everdance takes the following measures:
1) Appeals to the person who violated the copyright, with a request for the written consent of the author confirming the right to use the content.
2) Removes such material, if the user refuses to provide the written consent of the author confirming the right to use this material and if we do not receive a response within 72 hours.
3) Provides information about the copyright infringer to the Copyright Holder.
Account may be blocked due to numerous copyright violations in connection with your use of the Everdance application.
5.3. Designated Agent Contact
Information.Everdance's designated agent for receipt of Notifications of Claimed Infringement (the "Designated Agent") can be contacted at:
Via E-mail: support@everdance.app
5.4. Counter Notification
If you receive a notification from Everdance that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Everdance with what is called a "Counter Notification." To be effective, a Counter Notification must be in writing, provided to Everdance's Designated Agent through one of the methods identified in Section 5.2. and include substantially the following information:
1) A physical or electronic signature of the subscriber;
2) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, then for any judicial district in which Everdance may be found, and that the subscriber will accept service of process from the person who provided notification under Section 5.2. above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party's obligations to provide a valid counter notification under the Copyright Act.
5.5. Reposting of Content Subject to a Counter Notification
If you submit a Counter Notification to Everdance in response to a Notification of Claimed Infringement, Everdance will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Everdance will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Everdance will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Everdance's Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Everdance's system or network.
5.6. False Notifications of Claimed Infringement or Counter Notifications
The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Everdance] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Everdance reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
6. Terms of Sale
To purchase any products or services on the Service, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence. If you wish to purchase any products or services on the Service and are under the applicable age of majority in your jurisdiction of residence, you must have your parents' permission to do so.
6.1. Methods of Payment and Taxes
To purchase any products or services on the Service may be made through in-app purchases through the Apple App Store or Google Play Store (or other application platforms authorized by Everdance) (each, a "Software Store"). If you choose to make an in-app purchase, you will be prompted to enter details for your account with the mobile platform you are using (e.g., Apple, Android, etc.) ("your IAP Account"), and your IAP Account will be charged for the in-app purchase in accordance with the terms disclosed to you at the time of purchase as well as the general terms for in-app purchases that apply to your IAP Account. If your purchase is not made through your IAP Account, you will be required instead to provide us or our payment processor with a valid credit card number and associated payment information, including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For any Membership that you order on the Services, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order as posted on the Services. Either the Software Store or Everdance will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Your card issuer agreement governs your use of your esignated card, and you must refer to that agreement and not this Terms to determine your rights and liabilities as a cardholder. You hereby represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT EVERDANCE, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. For example, if you purchase with a credit card that is issued through a bank that is based outside of the United States, your bank or Everdance's bank may charge foreign transaction fees and other similar currency exchange fees and you agree to reimburse Everdance for any such fees or charges, if charged to Everdance, upon Everdance's demand. Unless you notify Everdance of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Everdance does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Everdance or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes. Everdance shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with its order policy in effect at the time of purchase.
6.2. Free Trial
We require that you provide a valid credit or debit card at the time you register for a free trial to ensure that you have continued access to your membership after the expiration of the free trial period ("Free Trial"). Everdance will not bill your account until the Free Trial has expired and provided that you have not cancelled your account during the Free Trial period. You may only use a Free Trial once. Everdance reserves the right to terminate any account that is using or trying to use more than one Free Trial.
6.3. Return Policy
All purchase transactions made through the Service are subject to Everdance's Money-Back Policy in effect at the time of purchase.
6.4. Order Acceptance Policy
You'll receive a confirmation email after we confirm the payment for your order. Your order is not binding on Everdance until accepted and confirmed by Everdance. The service for providing access to our Service is considered to be rendered in full after you receive a payment confirmation letter and provide a unique link to download the application (when purchased through a web page).
If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card or third party payment processing charges unless you have made a reasonable attempt at resolving the matter directly with Everdance.
Everdance reserves the right to not process or to cancel your order in certain circumstances, for example, if your credit card is declined, if we suspect the request or order is fraudulent, or in other circumstances Everdance deems appropriate in its sole discretion. Everdance also reserves the right, in its sole discretion, to take steps to verify your identity in connection with your order. You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). Everdance will either not charge you or refund the charges for orders that we do not process or cancel.
6.5. Subscriptions Automatically Renew Until You Cancel & How to Cancel Your Subscription
All amounts are payable and charged: (i) for one-off purchase , at the time you place your order; and (ii) For monthly or yearly subscriptions, at the beginning of the subscription and, because each such subscription renews automatically for an additional period equal in length to the expiring subscription term until you cancel it, at the time of each renewal until you cancel, using the Payment Information you have provided. You must cancel your monthly or yearly Subscription before it renews to avoid the billing of the fees for the next Subscription period. If you purchase your Subscription via an App Provider, you can cancel the renewal of your subscription at any time with the App Provider. You will not receive a refund for the fees you already paid for your current subscription period and you will continue to receive the Services ordered until the end of your current Subscription period. You can find out more about this in our Subscription Terms.
6.6. Changes to Price Terms for Subscriptions
Everdance reserves the right to change its pricing terms for Subscriptions at any time and Everdance will notify you in advance of such changes becoming effective. Changes to the pricing terms will not apply retroactively and will only apply for Subscription renewals after such changed pricing terms have been communicated to you. If you do not agree with the changes to Everdance's pricing terms then you may choose not to renew your Subscription in accordance with the section "Subscriptions Automatically Renew Until You Cancel & How to Cancel Your Subscription."
6.7. Future Functionality
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Everdance regarding future functionality or features.
7. Restrictions on Use of the Service.
7.1. In using the Service, you agree not to:
i. use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
ii. attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up the Service;
iii. delete or alter any material Everdance or any other person or entity Posts on the Service;
iv. frame or link to any of the materials or information available on the Service;
v. alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available;
vi. use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Everdance or obtained from the Service;
vii. access, tamper with, or use non-public areas of the Service, Everdance's (and its hosting company's) computer systems and infrastructure, or the technical delivery systems of Everdance's providers;
viii. provide any false personal information to Everdance;
ix. create a false identity or impersonate another person or entity in any way;
x. create a new account with Everdance, without Everdance's express written consent, if Everdance has previously disabled an account of yours;
xi. solicit, or attempt to solicit, personal information from other Users of the Service;
xii. restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about Users of the Service;
xiii. use the Service to send emails or other communications to persons who have requested that you not send them communications;
xiv. use the Service, without Everdance's express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
xv. gain unauthorized access to the Service, to other Users' accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
xvi. post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
xvii. interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers;
xviii. violate any applicable federal, state, or local laws or regulations or the terms of this Terms; or
xix. assist or permit any person in engaging in any of the activities described above.
7.2. External Sites
The Service may contain links to or the ability to share information with third party websites ("External Sites"). Everdance does not endorse any content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. Everdance is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk.
7.3. Feedback
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the User community. If you choose to contribute by sending Everdance or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, "Feedback"), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Everdance, you agree that:
a. Everdance has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and Everdance is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant Everdance perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
8. Limitation of Liability and Disclaimer of Warranties
a. EVERDANCE, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE "EVERDANCE PARTIES") MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED, TO THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE EVERDANCE PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
b. THE EVERDANCE PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO EVERDANCE PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE EVERDANCE PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
d. IN NO EVENT WILL ANY EVERDANCE PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH EVERDANCE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EVERDANCE'S LIABILITY, AND THE LIABILITY OF ANY OTHER EVERDANCE PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100.SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.IN SUCH STATES, THE LIABILITY OF THE EVERDANCE PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9. Dispute Resolution
You are solely responsible for your interactions with other members. Everdance reserves the right, but has no obligation, to monitor or mediate disputes between you and other members.
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
9.1. Informal Process First
You agree that in the event of any dispute between you and Everdance, you will first contact Everdance and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
9.2. Arbitration Agreement
After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, "Claim") relating in any way to your use of Everdance's services and/or products, including the Service, or relating in any way to the communications between you and Everdance or any other user of the Service, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Everdance. However, this arbitration agreement does not (a) govern any Claim by Everdance for infringement of its intellectual property or access to the Service that is unauthorized or exceeds authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases. If you are an individual you may opt out of this arbitration agreement within thirty (30) days of the first of the date you access or use this Service by following the procedure described below.
You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Everdance are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to:
Email Address: support@everdance.app
The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA's Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Service on behalf of an entity, the AAA's Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If you are an individual and have not accessed or used the Service on behalf of an entity, we will reimburse those fees for claims where the amount in dispute is less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the "Class Action Waiver" section below.
If you do not want to arbitrate disputes with Everdance and you are an individual, you may opt out of this arbitration agreement by sending an email to support@everdance.app within thirty (30) days of the first of the date you access or use the Service.
9.3. Class Action Waiver
Any Claim must be brought in the respective party's individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding ("Class Action"). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Everdance each waive any right to a jury trial.
If a counter-notice is received by Everdance's Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the Content Provider, member or user, the removed content may be replaced, or access to it restored, in ten business days or more after receipt of the counter-notice, at Everdance's sole discretion.
Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.
10. Term and Termination of the Terms
10.1. Term
As between you and Everdance, the Term of this Terms commences as of your first use of the Service and continues until the termination of this Terms by either you or Everdance.
10.2. Termination
You may terminate this Terms by sending written notification to Everdance at support@everdance.app, deleting the App from your mobile devices, and terminating all other uses of the Service. If you wish to delete any of your User Videos from the Service, then you may do so using the permitted functionalities of the App, but the removal or deletion of a User Video will not terminate this Terms. Everdance reserves the right, in its sole discretion, to restrict, suspend, or terminate this Terms and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this Terms or violate the rights of any third party copyright owner of musical works or sound recordings. Everdance may further terminate this Terms for any other reason upon ten (10) days' notice to you using the email address associated with your account credentials. Everdance reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
11. International Use
Due to the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
12. Consent to Electronic Communications
By using the Service, you consent to receiving certain electronic communications from us as further described in the Privacy Policy. Please read the Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
13. Additional Terms
We may also require you to follow additional rules, guidelines or other conditions in order to participate in certain promotions or activities available through the Service, to obtain certain premium Content through the Service, or for other reasons. These additional terms are part of this Agreement, and you agree to comply with them when you participate in those promotions, or otherwise engage in activities governed by such additional terms.
14. Modification and Discontinuation
We reserve the right at any time to modify, edit, delete, suspend or discontinue, temporarily or permanently the Service or any portion thereof with or without notice. You agree that we will not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance of the Service.
15. Miscellaneous
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Everdance as a result of this Terms or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Everdance other than pursuant to this Terms. If any provision of this Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Terms, which will remain in full force and effect. Failure of Everdance to act on or enforce any provision of this Terms will not be construed as a waiver of that provision or any other provision in this Terms. No waiver will be effective against Everdance unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Everdance and you, this Terms constitutes the entire agreement between you and Everdance with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein.
The Section headings are provided merely for convenience and will not be given any legal import. This Terms will inure to the benefit of our successors and assigns. You may not assign this Terms or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior express written consent of Everdance. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. Everdance may assign this Terms, including all its rights hereunder, without restriction.
16. Additional Terms for App Store Apps
If you accessed or downloaded the App from the Apple Store, then you agree to use the App only: (i) on an Apple-branded product or device that runs iOS (Apple's proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple Store Terms of Service.
If you accessed or downloaded the App from an App Provider, then you acknowledge and agree that:
17. Contact Information
If you have any questions about these Terms or the Services, please contact Everdance at support@everdance.app.
EVERDANCE, INC.
Our mailing address:
651 North Broad Street
Middletown
DE 19709
Tax ID: 86-3348546
Welcome to Everdance mobile software application (the "App"), which is provided by Everdance Inc. (collectively such entities will be referred to as "Everdance", "we," "us" or "our") and is designed to provide you with interactive videos to learn dance from our community of choreographers.
This Terms of User Agreement (this "Terms") is a binding contract between you, an individual user ("you") and Everdance governing your use of the App and the related website located at www.everdance.app ("Site," and collectively with the App, the "Service").
PLEASE READ THIS TERMS OF USE AGREEMENT VERY CAREFULLY BEFORE USING THE SERVICE
Agreement to Terms
BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS Terms. IF YOU DO NOT AGREE TO THE TERMS OF THIS Terms, YOU MAY NOT USE THE SERVICE.
Material Terms:
As provided in greater detail in this Terms (and without limiting the express language of this Terms), you acknowledge the following:
- please read these Terms (in particular, Section 6 "Terms of Sale") and Subscription Terms carefully before starting a free trial or completing a purchase for the App auto-renewing subscription services. To avoid being charged you must affirmatively cancel your subscription or a trial at least 24 hours before the end of the free trial or the current subscription period. If you are unsure how to cancel a subscription or a free trial, please visit Apple Support, Google Play Help (or any other relevant app stores support pages), or our website depending on where you have purchased your subscription. Deleting the App does not cancel your subscriptions or free trials.
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator's (the "Carrier") terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- you consent to the collection, use, and disclosure of your personally identifiable information in accordance with Everdance Privacy Policy, including with respect to the collection of location information;
- the App is provided "as is" without warranties of any kind and Everdance's liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration. By accepting this Terms, as provided in greater detail in Section 9 of this Terms, you and Everdance are each waiving the right to a trial by jury or to participate in a class action;
- the App requires access to the following services on your mobile device: your device identifier and location; and
- if you are using the App on an iOS-based device, you agree to and acknowledge the "Additional Terms for App Store Apps," below.
1. General Terms and Conditions
1.1. Privacy Policy
Your access to and use of the Service is also subject to Everdance's Privacy Policy ("Privacy Policy"), the terms and conditions of which are incorporated herein by reference.
1.2. Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we'll let you know either by posting the modified Terms on the Site or through other communications. It's important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don't agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
1.3. Health Disclaimer
Dancing, in all of its forms and and moves that may be suggested by a Everdance instructor, is a strenuous physical activity. Accordingly, you are urged and advised to seek the advice of a physician before learning the choreography/moves shown in any of the video clips on the App. Everdance is not a medical organization and its instructors or staff cannot give you medical advice or diagnosis. All suggestions and comments relating to the moves and choreography are not required to be performed by you and are carried out at your election while viewing Everdance videos. Nothing contained in this Website should be construed as any form of such medical advice or diagnosis.
By using the App you represent that you understand that physical exercise involves strenuous physical movement, and that such activity carries the risk of injury whether physical or mental. You understand that it is your responsibility to judge your physical and mental capabilities for such activities. It is your responsibility to ensure that by participating in classes and activities from Everdance, you will not exceed your limits while performing such activity, and you will select the appropriate level of classes for your skills and abilities, as well as for any mental or physical conditions and/or limitations you have. You understand that, from time to time instructors may suggest physical adjustments or the use of equipment and it is your sole responsibility to determine if any such suggested adjustment or equipment is appropriate for your level of ability and physical and mental condition. You expressly waive and release any claim that you may have at any time for injury of any kind against Everdance, or any person or entity involved with Everdance, including without limitation its directors, principals, instructors, independent contractors, employees, agents, contractors, affiliates and representatives.
1.4. Eligibility
You may use the Services only if you are 13 years or older and are not barred from using the Services under applicable law. To make a purchase via the Services, you must be 18 years or older and capable of forming a binding contract.
If you are a minor, or if you are below the applicable minimum age, you may only use Everdance if your guardian has provided us with valid consent for you to use Everdance. You may not falsely claim you have reached the minimum age if you are actually not.
2. The Service
2.1. Description
Subject to Everdance's potential blocking of certain content owned or controlled by the third parties, which blocking you hereby authorize, the Service enables you to create up to 60-second videos that incorporate locally stored sound recordings from your personal music library ("User Videos"). They person will be referred to herein as a "Creator". Creators, and all other users of the Service will be referred to herein collectively as "Users."
In addition to allowing you to create videos, the Service may also allow you to
(i) save your User Videos locally to your device;
(ii) upload your User Videos to the App or certain third party social media platforms (e.g., Instagram, Facebook, YouTube, Twitter) subject to the terms and conditions in this Terms and any usage restrictions imposed by any licensors (e.g., sound recording and/or musical work copyright owners);
(iii) communicate your User Videos to friends via different messaging services; and
(iv) publicly display and perform your User Videos and the embedded sound recordings and musical works to other Users of the Service. If the Service does not permit you to Post User Videos directly to one or more third party social media platforms, then you are not authorized by Everdance to Post your User Videos on such platforms and you are solely responsible for obtaining any necessary rights, clearances, permissions or authorizations for such Posting and may be subject to liability for your failure to do so in the event of any Posting of User Videos.
Private Accounts. You control whether the User Videos you create are made publicly available on the Service or only available to people you approve. To restrict access to your User Videos, you should elect "private account" in the profile settings page within the App.
2.2. Mobile Services
The Service will be accessible via a mobile phone, tablet or other wireless device (collectively, "Mobile Services").Your mobile carrier's normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the App and the related Mobile Services must be in accordance with this Temps.
3. Registration
3.1. Log-In Credentials
While you may always browse the public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, you must download the App and register an account with us (an "Account"). You may register using your email address or your Facebook credentials.
3.2. Accuracy of Information
When creating an Account, you will provide true, accurate, current, and complete information as Everdance requests. You agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don't, we might have to suspend or terminate your Account.
3.3. Account Security
You are responsible for the security of your account, and are fully responsible for all activities that occur through the use of your credentials, whether or not you know about them. You will notify Everdance immediately at support@everdance.app if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Everdance will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Everdance of such unauthorized use or loss of your credentials.
3.4. Messages
You may send messages to Users through the App. You represent and warrant you will only send messages through the App to Users who have given you their express consent to receive such messages, and you will indemnify and hold Everdance harmless from any and all claims arising out of your sending these messages to any Users. You are responsible for all fees and charges associated with such messages.
4. Content and Content Rights
4.1. The content used on the platform includes:
1. Everdance content that is owned by or licensed by Everdance.
2. User content, the exclusive rights to which belong to the persons who upload content to the platform.
4.2. Everdance Content
Everdance content includes: software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photos, audio, video, music and "appearance" of the Service, as well as all related intellectual property rights ("Everdance Content").
Use of the Everdance Content or materials on the Service for any purpose not expressly permitted by these Terms is strictly prohibited. Such content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors' prior written consent. We and our licensors reserve all rights not expressly granted in and to their content.
You acknowledge and agree that we may generate revenues, increase goodwill or otherwise increase our value from your use of the Services, including, by way of example and not limitation, through the sale of advertising, sponsorships, promotions, usage data and Gifts (defined below), and except as specifically permitted by us in these Terms or in another agreement you enter into with us, you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that, except as specifically permitted by us in these Terms or in another agreement you enter into with us, you
(i) have no right to receive any income or other consideration from any User Content (defined below) or your use of any videos, musical works, sound recordings or audiovisual clips made available to you on or through the Services, including in any User Content created by you, and
(ii) are prohibited from exercising any rights to monetize or obtain consideration from any User Content within the Services or on any third party service ( e.g. , you cannot claim User Content that has been uploaded to a social media platform such as YouTube for monetization).
Subject to the terms and conditions of the Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, worldwide license to access and use the Services, including to download the App on a permitted device, and to access the Everdance Content solely for your personal, non-commercial use through your use of the Services and solely in compliance with these Terms. Everdance reserves all rights not expressly granted herein in the Service and the Everdance Content. You acknowledge and agree that Everdance may terminate this license at any time for any reason or no reason.
NO RIGHTS ARE LICENSED WITH RESPECT TO SOUND RECORDINGS AND THE MUSICAL WORKS EMBODIED THEREIN THAT ARE MADE AVAILABLE FROM OR THROUGH THE SERVICE.
You acknowledge and agree that when you view content provided by others on the Service, you are doing so at your own risk. The content on our Service is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our Service.
We make no representations, warranties or guarantees, whether express or implied, that any Everdance Content (including User Content) is accurate, complete or up to date. Where our Service contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them. You acknowledge that we have no obligation to pre-screen, monitor, review, or edit any content posted by you and other users on the Service (including User Content).
4.3. User-Generated Content
4.3.1. Definition.
Users of the Service may be permitted to upload, post or transmit (such as via a stream) or otherwise make available content through the Service including, without limitation, any text, photographs, user videos, sound recordings and the musical works embodied therein, including videos that incorporate locally stored sound recordings from your personal music library and ambient noise ("User Content"). Users of the Service may also extract all or any portion of User Content created by another user to produce additional User Content, including collaborative User Content with other users, that combine and intersperse User Content generated by more than one user. Users of the Service may also overlay music, graphics, stickers, Virtual Items and other elements provided by Everdance ("Everdance Elements") onto this User Content and transmit this User Content through the Service.
All Content uploaded or otherwise published on the Service must comply with this Agreement and the law.
4.3.2. Screening User Content.
Users the ability to submit User Content to the Service.
In relation to user content - Everdance is an information intermediary and is not responsible in case of violation of the rights of third parties, since Everdance does not conduct a preliminary check of any User Content and reserves the right to remove or delete any User Content in case of violation of the rights of third parties.
In addition, we have the right – but not the obligation – in our sole discretion to remove or delete any User Content:
(i) that we consider to violate this Terms, applicable law or otherwise constitute Objectionable Content (defined in Section 4.2.8. below); or
(ii) in response to complaints from other Users or licensors of any Everdance Content, with or without notice and without any liability to you. As a result, we recommend that you save copies of any User Content that you Post to the Service on your personal device(s) in the event that you want to ensure that you have access to copies such User Content. Everdance does not guarantee the accuracy, integrity, appropriateness or quality of any User Content, and under no circumstances will Everdance be liable in any way for any User Content.
Whenever you access or use a feature that allows you to upload or transmit User Content through the Service (including via certain third party social media platforms such as Instagram, Facebook, YouTube, Twitter), or to make contact with other users of the Service, you must comply with the standards set out at 2.2. above. You may also choose to upload or transmit your User Content, including User Content that includes Everdance Elements, on sites or platforms hosted by third parties. If you decide to do this, you must comply with their content guidelines as well as with the standards set out at 2.2. above. As noted above, these features may not be available to all users of the Service, and we have no liability to you for limiting your right to certain features of the Service.
You warrant that any such contribution does comply with those standards, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.
4.3.3. Through-To-The-Audience Rights.
Any User Content will be considered non-confidential and non-proprietary. You must not post any User Content on or through the Services or transmit to us any User Content that you consider to be confidential or proprietary. When you submit User Content through the Services, you agree and represent that you own that User Content, or you have received all necessary permissions, clearances from, or are authorised by, the owner of any part of the content to submit it to the Service, to transmit it from the Service to other third party platforms, and/or adopt any third party content.
4.3.4. You Must Have Rights to the Content You Post
You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not post such sound recordings to the Service unless you have all permissions, clearances from, or are authorised by, the owner of any part of the content to submit it to the Service.You represent and warrant that:
(i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this Terms;
(ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content;
(iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
4.3.5. Licenses to User Content
You or the owner of your User Content still own the copyright in User Content sent to us, but by submitting User Content via the Service, you hereby grant us an unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide licence to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute and to authorise other users of the Services and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented.
You further grant us a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content; provided, however, that your ability to provide an image, voice, and likeness may be subject to limitations due to age restrictions.
4.3.6. Waiver of Rights to User Content.
By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
4.3.7. Objectionable Content.
You are not permitted to and agree not to Post any User Content to the Service that is or could be interpreted to be
(i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar;
(ii) promoting any product, good or service, or bigotry, discrimination, hatred, racism, inciting violence or physical harm of any kind against any group or individual;
(iii) furthering or promoting any criminal activity or enterprise or providing instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
(iv) harassing or advocating harassment of another person;or
(iii) making a political message for or against any person, party, political belief or issue, of a religious nature, or harshly critical , the copyright owner(s) thereof, or any author, contributor or royalty participant , in each of clauses (i), (ii) and (iii) of this Section, as Everdance may determine in its sole discretion (collectively, "Objectionable Content").
The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this Terms may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. If you encounter any Objectionable Content on the Service, then please email Everdance at support@everdance.app or inform us through the functionality offered on the Service. You acknowledge and agree that Everdance provides you the right to report Objectionable Content as a courtesy, and Everdance has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. Everdancer may terminate, suspend, warn or take other appropriate actions against Users for Posting Objectionable Content to the Service, including, but not limited to, the removal of all Content uploaded to the Service by a User.
4.3.8. No Liability.
For the avoidance of doubt, Everdance will not be liable for any unauthorized use of User Content by any User.
5. Intellectual Property Rights
5.1. Everdance respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
Copyright is a legal right that protects original works of authorship (e.g., music, videos, etc.). Generally, copyright protects an original expression of an idea but does not protect underlying ideas or facts.
We do not allow any content that infringes copyright. Any use of copyrighted content of others without proper authorization or legally valid reason may lead to a violation. In some cases, you may be required to provide evidence to prove that you are entitled to use copyrighted content.
If you think that any content available on or through the Service has been used or exploited in a way that violates the intellectual property rights that you own or control, please immediately send an Email Notification to: support@everdance.app.
The notification may be transmitted by Everdance to a User who has allegedly violated the rights that you own or control, and you hereby consent to such disclosure by Everdance.
5.2. Procedure for Reporting Claimed Infringement
In the case of a request from third parties whose copyrights have been violated by posting material in the Everdance application, the responsibility for such violation lies with the persons who made such placement.
From the moment of receiving such requests, Everdance takes the following measures:
1) Appeals to the person who violated the copyright, with a request for the written consent of the author confirming the right to use the content.
2) Removes such material, if the user refuses to provide the written consent of the author confirming the right to use this material and if we do not receive a response within 72 hours.
3) Provides information about the copyright infringer to the Copyright Holder.
Account may be blocked due to numerous copyright violations in connection with your use of the Everdance application.
5.3. Designated Agent Contact
Information.Everdance's designated agent for receipt of Notifications of Claimed Infringement (the "Designated Agent") can be contacted at:
Via E-mail: support@everdance.app
5.4. Counter Notification
If you receive a notification from Everdance that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Everdance with what is called a "Counter Notification." To be effective, a Counter Notification must be in writing, provided to Everdance's Designated Agent through one of the methods identified in Section 5.2. and include substantially the following information:
1) A physical or electronic signature of the subscriber;
2) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, then for any judicial district in which Everdance may be found, and that the subscriber will accept service of process from the person who provided notification under Section 5.2. above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party's obligations to provide a valid counter notification under the Copyright Act.
5.5. Reposting of Content Subject to a Counter Notification
If you submit a Counter Notification to Everdance in response to a Notification of Claimed Infringement, Everdance will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Everdance will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Everdance will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Everdance's Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Everdance's system or network.
5.6. False Notifications of Claimed Infringement or Counter Notifications
The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Everdance] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Everdance reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
6. Terms of Sale
To purchase any products or services on the Service, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence. If you wish to purchase any products or services on the Service and are under the applicable age of majority in your jurisdiction of residence, you must have your parents' permission to do so.
6.1. Methods of Payment and Taxes
To purchase any products or services on the Service may be made through in-app purchases through the Apple App Store or Google Play Store (or other application platforms authorized by Everdance) (each, a "Software Store"). If you choose to make an in-app purchase, you will be prompted to enter details for your account with the mobile platform you are using (e.g., Apple, Android, etc.) ("your IAP Account"), and your IAP Account will be charged for the in-app purchase in accordance with the terms disclosed to you at the time of purchase as well as the general terms for in-app purchases that apply to your IAP Account. If your purchase is not made through your IAP Account, you will be required instead to provide us or our payment processor with a valid credit card number and associated payment information, including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For any Membership that you order on the Services, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order as posted on the Services. Either the Software Store or Everdance will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Your card issuer agreement governs your use of your esignated card, and you must refer to that agreement and not this Terms to determine your rights and liabilities as a cardholder. You hereby represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT EVERDANCE, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. For example, if you purchase with a credit card that is issued through a bank that is based outside of the United States, your bank or Everdance's bank may charge foreign transaction fees and other similar currency exchange fees and you agree to reimburse Everdance for any such fees or charges, if charged to Everdance, upon Everdance's demand. Unless you notify Everdance of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Everdance does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Everdance or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes. Everdance shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with its order policy in effect at the time of purchase.
6.2. Free Trial
We require that you provide a valid credit or debit card at the time you register for a free trial to ensure that you have continued access to your membership after the expiration of the free trial period ("Free Trial"). Everdance will not bill your account until the Free Trial has expired and provided that you have not cancelled your account during the Free Trial period. You may only use a Free Trial once. Everdance reserves the right to terminate any account that is using or trying to use more than one Free Trial.
6.3. Return Policy
All purchase transactions made through the Service are subject to Everdance's Money-Back Policy in effect at the time of purchase.
6.4. Order Acceptance Policy
You'll receive a confirmation email after we confirm the payment for your order. Your order is not binding on Everdance until accepted and confirmed by Everdance. The service for providing access to our Service is considered to be rendered in full after you receive a payment confirmation letter and provide a unique link to download the application (when purchased through a web page).
If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card or third party payment processing charges unless you have made a reasonable attempt at resolving the matter directly with Everdance.
Everdance reserves the right to not process or to cancel your order in certain circumstances, for example, if your credit card is declined, if we suspect the request or order is fraudulent, or in other circumstances Everdance deems appropriate in its sole discretion. Everdance also reserves the right, in its sole discretion, to take steps to verify your identity in connection with your order. You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). Everdance will either not charge you or refund the charges for orders that we do not process or cancel.
6.5. Subscriptions Automatically Renew Until You Cancel & How to Cancel Your Subscription
All amounts are payable and charged: (i) for one-off purchase , at the time you place your order; and (ii) For monthly or yearly subscriptions, at the beginning of the subscription and, because each such subscription renews automatically for an additional period equal in length to the expiring subscription term until you cancel it, at the time of each renewal until you cancel, using the Payment Information you have provided. You must cancel your monthly or yearly Subscription before it renews to avoid the billing of the fees for the next Subscription period. If you purchase your Subscription via an App Provider, you can cancel the renewal of your subscription at any time with the App Provider. You will not receive a refund for the fees you already paid for your current subscription period and you will continue to receive the Services ordered until the end of your current Subscription period. You can find out more about this in our Subscription Terms.
6.6. Changes to Price Terms for Subscriptions
Everdance reserves the right to change its pricing terms for Subscriptions at any time and Everdance will notify you in advance of such changes becoming effective. Changes to the pricing terms will not apply retroactively and will only apply for Subscription renewals after such changed pricing terms have been communicated to you. If you do not agree with the changes to Everdance's pricing terms then you may choose not to renew your Subscription in accordance with the section "Subscriptions Automatically Renew Until You Cancel & How to Cancel Your Subscription."
6.7. Future Functionality
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Everdance regarding future functionality or features.
7. Restrictions on Use of the Service.
7.1. In using the Service, you agree not to:
i. use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
ii. attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up the Service;
iii. delete or alter any material Everdance or any other person or entity Posts on the Service;
iv. frame or link to any of the materials or information available on the Service;
v. alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available;
vi. use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Everdance or obtained from the Service;
vii. access, tamper with, or use non-public areas of the Service, Everdance's (and its hosting company's) computer systems and infrastructure, or the technical delivery systems of Everdance's providers;
viii. provide any false personal information to Everdance;
ix. create a false identity or impersonate another person or entity in any way;
x. create a new account with Everdance, without Everdance's express written consent, if Everdance has previously disabled an account of yours;
xi. solicit, or attempt to solicit, personal information from other Users of the Service;
xii. restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about Users of the Service;
xiii. use the Service to send emails or other communications to persons who have requested that you not send them communications;
xiv. use the Service, without Everdance's express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
xv. gain unauthorized access to the Service, to other Users' accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
xvi. post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
xvii. interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers;
xviii. violate any applicable federal, state, or local laws or regulations or the terms of this Terms; or
xix. assist or permit any person in engaging in any of the activities described above.
7.2. External Sites
The Service may contain links to or the ability to share information with third party websites ("External Sites"). Everdance does not endorse any content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. Everdance is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk.
7.3. Feedback
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the User community. If you choose to contribute by sending Everdance or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, "Feedback"), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Everdance, you agree that:
a. Everdance has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and Everdance is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant Everdance perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
8. Limitation of Liability and Disclaimer of Warranties
a. EVERDANCE, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE "EVERDANCE PARTIES") MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED, TO THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE EVERDANCE PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
b. THE EVERDANCE PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO EVERDANCE PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE EVERDANCE PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
d. IN NO EVENT WILL ANY EVERDANCE PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH EVERDANCE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EVERDANCE'S LIABILITY, AND THE LIABILITY OF ANY OTHER EVERDANCE PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100.SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.IN SUCH STATES, THE LIABILITY OF THE EVERDANCE PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9. Dispute Resolution
You are solely responsible for your interactions with other members. Everdance reserves the right, but has no obligation, to monitor or mediate disputes between you and other members.
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
9.1. Informal Process First
You agree that in the event of any dispute between you and Everdance, you will first contact Everdance and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
9.2. Arbitration Agreement
After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, "Claim") relating in any way to your use of Everdance's services and/or products, including the Service, or relating in any way to the communications between you and Everdance or any other user of the Service, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Everdance. However, this arbitration agreement does not (a) govern any Claim by Everdance for infringement of its intellectual property or access to the Service that is unauthorized or exceeds authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases. If you are an individual you may opt out of this arbitration agreement within thirty (30) days of the first of the date you access or use this Service by following the procedure described below.
You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Everdance are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to:
Email Address: support@everdance.app
The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA's Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Service on behalf of an entity, the AAA's Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If you are an individual and have not accessed or used the Service on behalf of an entity, we will reimburse those fees for claims where the amount in dispute is less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the "Class Action Waiver" section below.
If you do not want to arbitrate disputes with Everdance and you are an individual, you may opt out of this arbitration agreement by sending an email to support@everdance.app within thirty (30) days of the first of the date you access or use the Service.
9.3. Class Action Waiver
Any Claim must be brought in the respective party's individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding ("Class Action"). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Everdance each waive any right to a jury trial.
If a counter-notice is received by Everdance's Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the Content Provider, member or user, the removed content may be replaced, or access to it restored, in ten business days or more after receipt of the counter-notice, at Everdance's sole discretion.
Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.
10. Term and Termination of the Terms
10.1. Term
As between you and Everdance, the Term of this Terms commences as of your first use of the Service and continues until the termination of this Terms by either you or Everdance.
10.2. Termination
You may terminate this Terms by sending written notification to Everdance at support@everdance.app, deleting the App from your mobile devices, and terminating all other uses of the Service. If you wish to delete any of your User Videos from the Service, then you may do so using the permitted functionalities of the App, but the removal or deletion of a User Video will not terminate this Terms. Everdance reserves the right, in its sole discretion, to restrict, suspend, or terminate this Terms and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this Terms or violate the rights of any third party copyright owner of musical works or sound recordings. Everdance may further terminate this Terms for any other reason upon ten (10) days' notice to you using the email address associated with your account credentials. Everdance reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
11. International Use
Due to the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
12. Consent to Electronic Communications
By using the Service, you consent to receiving certain electronic communications from us as further described in the Privacy Policy. Please read the Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
13. Additional Terms
We may also require you to follow additional rules, guidelines or other conditions in order to participate in certain promotions or activities available through the Service, to obtain certain premium Content through the Service, or for other reasons. These additional terms are part of this Agreement, and you agree to comply with them when you participate in those promotions, or otherwise engage in activities governed by such additional terms.
14. Modification and Discontinuation
We reserve the right at any time to modify, edit, delete, suspend or discontinue, temporarily or permanently the Service or any portion thereof with or without notice. You agree that we will not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance of the Service.
15. Miscellaneous
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Everdance as a result of this Terms or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Everdance other than pursuant to this Terms. If any provision of this Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Terms, which will remain in full force and effect. Failure of Everdance to act on or enforce any provision of this Terms will not be construed as a waiver of that provision or any other provision in this Terms. No waiver will be effective against Everdance unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Everdance and you, this Terms constitutes the entire agreement between you and Everdance with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein.
The Section headings are provided merely for convenience and will not be given any legal import. This Terms will inure to the benefit of our successors and assigns. You may not assign this Terms or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior express written consent of Everdance. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. Everdance may assign this Terms, including all its rights hereunder, without restriction.
16. Additional Terms for App Store Apps
If you accessed or downloaded the App from the Apple Store, then you agree to use the App only: (i) on an Apple-branded product or device that runs iOS (Apple's proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple Store Terms of Service.
If you accessed or downloaded the App from an App Provider, then you acknowledge and agree that:
- These Terms are concluded between you and Everdance, and not with App Provider, and that, as between Everdance and the App Provider, Everdance, is solely responsible for the App.
- App Provider has no obligation to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify App Provider and App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of an App to conform to any warranty will be the sole responsibility of Everdance.
- App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third-party claim that the App or your possession and use of the App infringes that third party's intellectual property rights, Everdance will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third party beneficiary thereof.
- You must also comply with all applicable third-party terms of service when using the App.
- You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App 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.
17. Contact Information
If you have any questions about these Terms or the Services, please contact Everdance at support@everdance.app.
EVERDANCE, INC.
Our mailing address:
651 North Broad Street
Middletown
DE 19709
Tax ID: 86-3348546