Evernote Corporation SOFTWARE LICENSE AND SERVICE AGREEMENT Welcome to Evernote Corporation ("WE" or "Evernote Corporation"). We provide the software (the "Software") and services (the "Services") available at our Web site (the "Site")
to YOU ("you" or "Licensee"). The Software you seek to download and/or install is licensed only on the condition that YOU agree with Evernote Corporation to be legally bound by this Software License and Service Agreement ("Agreement") which sets forth the terms and conditions upon which the parties agree as they pertain to the licensing of Evernote Software and usage of Evernote Services. Please read them carefully before using this Software and Services. Should you have any questions concerning this Agreement, please contact Evernote Corporation via e-mail at [email protected]. IF YOU AGREE AGREE TO BE BOUND BOUND BY THE TERMS OF THIS AGREEMENT, AGREEMENT, ACCEPT THE LICENSE AGREEMENT AT WHICH TIME THE SOFTWARE WILL BE DOWNLOADED AND/OR INSTALLED, AND YOU WILL BE GRANTED A LICENSE TO USE THE SOFTWARE AND SERVICE. IF YOU DO NOT AGREE TO THE TERMS TERMS OF THIS AGREEMENT, DO NOT ACCEPT ACCEPT THE LICENSE AGREEMENT AT WHICH POINT THE SOFTWARE WILL NOT BE DOWNLOADED OR INSTALLED AND THE SOFTWARE AND SERVICE MAY NOT BE USED BY YOU. Please print a copy of this Agreement for future reference. In consideration for use of the Software and Service, Licensee hereby agrees to the following terms and conditions: 1. DEFINITIONS.
The following definitions shall apply to this Agreement:
"Software" shall mean the object code version of Evernote Corporation's Evernote software. "Service" shall mean any or all of the following Evernote Corporation's services as further specified in the Agreement: - Internet synchronization service (including its website, scripts, and programming code for providing synchronization functionality), which may be provided in connection with the Software. - Centralized file storage at an Evernote facility, which may be provided in connection with the Software.
2. GRANT OF LICENSE. Evernote Corporation hereby grants the Licensee a nonexclusive, non-transferable, non-sublicensable, revocable license ("License"), including the right to install and use up to three (3) copies of the Software on personal computers. This License is granted solely for Licensee's personal purposes in accordance with the terms of this Agreement. The Software is licensed, and not sold, to the Licensee. This License does not include Internet synchronization or file storage service which is provided under a separate terms of service as stated on the Site. 3. RESTRICTIONS. Licensee shall not, and shall not permit any third party to, (i) disassemble, reverse compile, reverse engineer, improve upon, make derivative works from or modify the Software or Service or take any action in order to derive a source code equivalent of the Software or Service; (ii) copy or distribute all or any part of the Software or Service, provided, however, if the Software is not copy protected, Licensee may make one internal back-up or archival copy, or transfer one copy of the Software to a single hard disk provided the Licensee keeps the original Software solely for backup or archival purposes. Any such copy of the Software made by the Licensee shall bear all copyright, trademark and other Evernote Corporation intellectual property rights notices on such copy; (iii) bundle, pre-load, rent, sell, lease, sublicense or transfer the Software or access to the Service; and (iv) illegally access the Service or attempt to acquire the password or personal information of others through the Service or its website. Any use of the Software or Service that is contrary to the restrictions set forth above is an unlicensed and illegal use. Evernote Corporation reserves the right to immediately terminate this Agreement and/or seek other remedial action in the event it becomes aware of any unlicensed or illegal use of the Software or Service. 4. TITLE AND PROPRIETARY INFORMATION. "Intellectual Property Rights" shall include all functional and ornamental aspects of the Software and Service, including of any screen displays, all websites provided by Evernote Corporation with its Services, technical notes, computer program code, scripts, training materials, and works of authorship that may form a part of the Software or Services or are generated or provided by Evernote Corporation as part of the Service, all related technology, all training methods and materials, all Evernote Corporation trademarks and names, and all other proprietary information of Evernote Corporation, including
patent, patent applications, patentable subject matter developed by Evernote Corporation, trade secrets (including data, programming code etc.) trademark, copyright, and all other intellectual property rights therein. Except for the limited license granted herein, the Software, Service and all related documentation and materials, and all Intellectual Property Rights contained therein, are and shall remain the sole and exclusive property of Evernote Corporation. All rights and licenses not expressly granted to the Intellectual Property Rights as part of this Agreement are reserved by Evernote Corporation. 5. MAINTENANCE AND SUPPORT. During the term of this Agreement, Evernote Corporation shall use its reasonable efforts to provide technical support of the Software or Service according to its support policies. Such technical support shall be available by email communication in the English language and shall be available during Evernote Corporation’s regular business hours subject to further restrictions, which may be set forth in its web site(s) or published elsewhere in the form accessible by YOU. 6. SERVICE. If you are Licensed to use the Internet portion of the Service, then, during the term of the Internet Service portion of this Agreement, Evernote Corporation shall provide YOU with access to the Service. To use the Service on desktop or laptop computers, YOU must obtain access to the World Wide Web, and pay any service fees associated with such access. To use the Service on handheld computers and devices, YOU must either obtain access to the World Wide Web on such computers or devices or/and use a special version of the Software that allows YOU to use the Service, and pay any service fees associated with such access. YOU must also obtain all additional equipment and software necessary to make connections to the World Wide Web at YOUR own expense. 7. REGISTERING FOR THE SERVICE. This Section relates to the Internet portion of the Service. In consideration of Evernote Corporation enabling YOU to use the Service, YOU agree to: (i) provide to Evernote true, accurate, current and complete information about YOU (the "User Data") if and when requested by Evernote Corporation; and (ii) maintain and promptly update the User Data provided to Evernote Corporation to ensure that it is true, accurate, current and complete. All User Data that WE acquire about YOU shall be subject to OUR written Privacy Policy, available at the Evernote Corporation’s website. If YOU provide any information that is untrue, inaccurate, not current or incomplete, or if Evernote Corporation has reason to suspect that such information is untrue, inaccurate, not current or incomplete, Evernote Corporation may suspend YOUR account until
your User Data are verified or terminate YOUR account and refuse YOU any and all current or future use of the Service (or any portion thereof) if the User Data are proved untrue, inaccurate, not current or incomplete. Notwithstanding any other restrictions or limitations of this Agreement, YOU will not provide any information or data about YOURSELF to Evernote Corporation if YOU are under the age of 13, and YOU will not provide any information (including email addresses) about or associated with any individual other than YOURSELF. YOU acknowledge and agree that the loss of any and all current or future use of the Service may temporarily or permanently deprive YOU of access to information YOU have created or transferred using the Service. Unless explicitly stated otherwise in additional rules, terms and conditions that broaden access to certain areas of the Service, YOU must be at least 18 years old to access the Service. YOU will receive a User Name and Password upon completing the registration process. YOU are responsible for any and all activities that occur under YOUR User Name and Password, and YOU are responsible for maintaining the confidentiality of YOUR User Name and Password. YOU agree to (i) immediately notify Evernote Corporation of any unauthorized use of YOUR User Name and Password or any other breach of security of the Service, and (ii) ensure that YOU exit from the Service at the end of each use of the Service. It is YOUR sole responsibility to prepare archives and backups of YOUR data. YOU agree that Evernote Corporation shall not be liable for any loss or damage arising from YOUR failure to comply with the provisions of this Section. 8. USE OF THE SERVICE / MEMBER CONDUCT. This Section relates to the Internet portion of the Service. YOU are solely responsible for all information created and transmitted or received by YOU in the course of YOUR use of the Service, including, but not limited to, YOUR updates to other parties' information obtained by YOU in the course of YOUR use of the Service. Evernote Corporation does not control, edit or monitor information transmitted or stored in the Service and, as such, does not warrant the accuracy, integrity or quality of such information. YOU agree that under no circumstances will Evernote Corporation be liable in any way for any errors or omissions in any information, or for any loss or damage of any kind incurred as a result of the use of any information, emailed or otherwise transmitted via the Service. YOU agree to comply with all and any local, national, and international laws, rules and regulations ("Laws") regarding online conduct and the transmission of information on the Internet. Specifically, YOU agree to comply with all Laws regarding the transmission of technical data exported from the United States or in the country in which YOU reside. YOU agree to not use the Service to: (i)
transmit any information that is unlawful, threatening, harmful, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm or harass any person or entity in any way; (iii) impersonate any person or entity, including, but not limited to, Evernote Corporation, an Evernote Corporation agent or employee, forum leader, guide or host, or falsely state or otherwise misrepresent YOUR affiliation with any person or entity; (iv) forge or otherwise manipulate any identifying information in order to disguise the origin of any information transmitted through, or stored in the Service; (v) transmit any information that YOU do not have a right to transmit under any Law or under any contractual or fiduciary relationships (such as insider, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vi) transmit any information that infringes any party's intellectual property rights, including, but not limited to patents, trademarks, trade secrets, and copyrights; (vii) use the Service to upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional or commercial materials, generate spam or unsolicited email(s), spoof the email addresses of others, or send commercial solicitations, "junk mail", "chain letters" or promotions for "pyramid schemes"; (viii) transmit any material that contains any computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment, including, but not limited to software viruses, "warms", "bombs", etc.; (ix) interfere with or disrupt the Service or servers or networks utilized in the operation of the Service, or disobey any requirements, procedures, policies or regulations of networks utilized in the operation of the Service; (x) intentionally or unintentionally violate any applicable Law; (xi) collect, store or expose personal data about other users and/or content posted or otherwise transmitted via the Service by other users without their express permission. 9. MONITORING AND REMOVAL OF INFORMATION. YOU acknowledge that Evernote Corporation does not pre-screen information during the regular operation of the Service, but that Evernote Corporation and its designees shall have the right (but not the obligation), in their sole discretion, to refuse transmission of any information that Licensee seeks to send or receive via the Service. Without limiting the foregoing, Evernote Corporation and its designees shall have the right to refuse or remove any information that violates this Agreement or is otherwise objectionable, in Evernote Corporation sole judgment, or unlawful. YOU agree that YOU must evaluate, and bear all risks and costs associated with the use of any information
obtained through the Service, including any reliance on the accuracy, completeness, or usefulness of such information. Evernote Corporation and YOU agree that email transmitted via the Service is private correspondence between the sender and the recipient(s). Evernote Corporation will not monitor, edit, or disclose the contents of Licensee's private communications, except in the following circumstances: (i) if required to do so by applicable Laws, by any government entity or under subpoena; (ii) WE may disclose the contents of YOUR private communications to enforce the Agreement and any applicable additional rules, terms and conditions against YOU; (iii) to protect the rights, property, or personal safety of Evernote Corporation, its employees, agents, other licensees and the public. YOU understand that technical processing and transmission of information via the Service, including information posted by YOU, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Evernote Corporation disclaims all responsibility for faulty network transmission, interception of communications outside of the Service, and any links or other external resources accessible via the Service. Evernote Corporation further disclaims all responsibility for interruptions or suspensions of the Service (in a manner applicable to all licensees) for any reason. 10. SOFTWARE UPDATES The Software that you use may automatically download and install updates from time to time from Evernote Corporation. These updates are designed to improve, enhance, and further develop the Software and Services and may take the form of bug fixes, enhanced features, new software modules and completely new versions. You agree to receive such updates (and permit Evernote to deliver these to you) as part of your use of the Services. 11. INDEMNIFICATION. YOU agree to indemnify, defend and hold Evernote Corporation, its employees, members, managers, officers, subsidiaries, affiliates, agents or other partners, harmless from any claims, liabilities, (including third party claims and liabilities), demands, damages, losses, costs and expenses, including reasonable attorneys' fees, due to or arising out of or relating to YOUR use of the Software or the Service, including, but not limited to (i) any breach by YOU of this Agreement and (ii) any information or other content submitted, posted to or transmitted through the Service to or from YOU. 12. WARRANTY DISCLAIMERS; LIMITATION OF LIABILITY. IN ADDITION TO OTHER DISCLAIMERS SET FORTH HEREIN, EVERNOTE CORPORATION DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE AND THE SERVICE. THE
SOFTWARE AND THE SERVICE ARE PROVIDED "AS IS" AND WITHOUT WARRANTY, EXPRESS OR IMPLIED. EVERNOTE CORPORATION SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE OR THE LIKE. IN NO EVENT WILL EVERNOTE CORPORATION BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, RELIANCE, INCIDENTAL, SPECIAL, DIRECT OR INDIRECT DAMAGES SUFFERED BY LICENSEE (WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF CUSTOMERS, LOSS OF BUSINESS INFORMATION, LOSS OF USE OF ANY SOFTWARE, DATA, OR E-MAILS, COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE, SERVICES OR TECHNOLOGY, BUSINESS INTERRUPTION, DELAYS OR FAILURE TO DELIVER E-MAILS OR DATA, INCLUDING INTERRUPTION OF THE SERVICE, SOFTWARE OR COMPUTER FAILURE, BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE INTERNET OR OTHER MEANS, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, ANY PERSONAL INJURY OR INJURY TO PROPERTY, OR ANY OTHER CAUSE, EVEN IF EVERNOTE CORPORATION IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. Licensee agrees that regardless of any statute or law to the contrary, any claim or cause of action arising from this Agreement, the Software or the Service must be filed within one (1) year after such claim or cause of action arises. To the extent that Licensee may be entitled to any recovery, such recovery shall be limited to the fees collected by Evernote Corporation from such Licensee under this Agreement. 13.TERM; TERMINATION. (i) This provision relates to the Internet portion of the Service. Unless earlier terminated pursuant to the terms of this Agreement, the term of the Service shall commence upon YOUR registration for the Service and shall terminate automatically without notice from Evernote Corporation according to the term of the Service purchased by YOU from Evernote Corporation or its licensed distributors, resellers, dealers, agents or partners, or granted to YOU otherwise by Evernote Corporation. (ii) This Agreement shall also terminate automatically upon notice from Evernote Corporation to Licensee if (a) YOU fail to comply with any term(s) of this Agreement; (b) YOU attempt to transfer any or all of YOUR rights under this Agreement to another person or entity; or (c) Evernote Corporation sends YOU a new software license agreement, which conditions YOUR continued use of the Software and/or the Service upon acceptance of such new agreement. (iii) Termination of this Agreement shall be without prejudice to
any rights or liabilities accrued at the date of the termination. Upon effectiveness of the termination, all rights and licenses of Licensee to use the Software and the Service under this Agreement shall terminate. Upon termination of this Agreement, YOU shall cease all use of the Software and Service and destroy all copies of the Software and all associated documentation in YOUR possession or control. (iv) The following Sections shall survive termination: 10, 11 and 12. (v) This provision relates to the Internet portion of the Service. In addition to the foregoing, Evernote Corporation may, in its sole discretion, temporarily suspend or terminate YOUR User Name, Password, and remove and discard any information posted within the Service on YOUR behalf, if Evernote Corporation reasonably believes that YOU have violated or acted inconsistently with the terms and conditions of this Agreement and/or any additional rules, terms and conditions that have been made available to YOU on Evernote Corporation’s web site in conjunction with this Agreement. Evernote Corporation may also, in its sole discretion and at any time, discontinue providing the Service, or any portion thereof, with or without notice, whether or not the Software license remains valid. YOU agree that any termination of YOUR access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Evernote Corporation may immediately deactivate or delete YOUR account and all related information in YOUR account and/or bar any further access to such files or the Service. Further, YOU agree that Evernote Corporation shall not be liable to YOU or any third-party for any termination of YOUR access to the Service. 14. EXPORT CONTROL. Licensee shall comply with all applicable export laws, restrictions and regulations of the United States or the applicable foreign agency or authority. Licensee will not export or re-export or allow the export or re-export the Software, or any product, technology, or information it obtains or learns of pursuant to this Agreement in violation of any such laws, restrictions or regulations. 15. ASSIGNMENTS AND TRANSFERS. This Agreement may not be assigned, sublicensed, re-marketed or otherwise transferred, voluntarily or otherwise, without the prior written approval of Evernote Corporation. 16. SEVERABILITY / GOVERNING LAW / ENTIRE AGREEMENT. Should any provision of this Agreement be deemed by a court of competent jurisdiction to be invalid, ineffective, unenforceable, or unlawful, under present or future laws, the remainder of the provisions shall remain in full force and effect
and shall in no way be affected, impaired or invalidated. This Agreement is governed by the laws of the State of California, without regard to its conflicts of laws provisions or the United Nations Convention on Contracts for the International Sale of Goods. Licensee agrees that venue for any dispute arising hereunder shall be proper in the applicable state or federal court sitting in California. Licensee acknowledges it has read this Agreement and agrees that it is the complete and exclusive statement of the agreement between the parties, and that this Agreement supersedes all prior proposals and understandings, oral and written, relating to the subject matter of this Agreement. This Agreement shall not be modified or rescinded except in a written instrument signed by both parties. The terms and conditions of any present or future documents submitted by Licensee which conflict with, or in any way purport to amend this Agreement, are specifically objected to by Evernote Corporation and shall be of no force or effect. 17. U.S. GOVERNMENT RESTRICTED RIGHTS The Software is provided with RESTRICTED RIGHTS. The use, duplication, or disclosure by the Government is subject to restrictions as set forth in subdivision (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at 52.227-7013. The contractor/ manufacturer of this Software is: Evernote Corporation 333 West Evelyn Avenue Mountain View, CA 94041 USA
