Everflow Marketplace Terms (between Everflow and Advertisers/Partners)

These Everflow Marketplace Terms apply to you and your participation in the Everflow Marketplace platform (the “Marketplace”) owned and operated by Everflow Technologies Inc. (“Everflow”) (the “Marketplace Agreement”). The Marketplace is an online platform provided by Everflow to connect Everflow customers with select advertisers, publishers, or partners that may provide promotional or advertising services for those customers, pursuant to separate agreements, as provided below.

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In consideration for the mutual covenants and for other good and valuable consideration provided herein, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, you and Everflow hereby agree to the following:

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1. Marketplace Participation as Advertiser or Partner

a. Access to Marketplace. Subject to your compliance with this Marketplace Agreement, Everflow provides you with the limited right to use and access the Marketplace. Notwithstanding the above, Everflow reserves the right to terminate your access to marketplace at its own discretion if the advertising company (“Advertiser”) or publisher partner (“Partner”) fails to comply with marketplace policies, or for violations such as fraud, spamming, among others. Without limiting the foregoing, you must at all times utilize the Marketplace for its intended purpose of facilitating legitimate and mutually beneficial business relationships between Everflow customers, Advertisers, and Partners. Failure to do so may result in suspension or termination of your participation in the Marketplace by Everflow.

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b. Direct Relationships Between Everflow Customers and Advertisers / Partners. You, as an Advertiser or Partner, may elect, at your sole direction, to contact other Advertisers or Partners participating in the Marketplace. Advertisers and Partners may contract directly with one another and are solely responsible for negotiating the terms of their agreements to provide or receive promotional or advertising services (“Advertiser Agreements”). Everflow is not, and will not be a party to, or beneficiary of any Advertiser Agreements. Everflow is not responsible for the terms, performance, or termination of any Advertiser Agreement. You agree that Everflow makes no representations or warranties as to the individuals or companies participating in the Marketplace, and your participation in the Marketplace is done entirely at your own risk. Any Advertiser Agreement shall not conflict with this Marketplace Agreement.

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c. Prohibited Use of Marketplace. If you elect to enter into an Advertiser Agreement, you may only promote an Advertiser using methods approved of or prescribed by the Advertiser. It is a condition of your use of the Marketplace that all the information you provide is correct, current, and complete. You shall not use the Marketplace to infringe on the intellectual property rights of Everflow or any other individual or company participating in the Marketplace, including trademark, trade dress, copyright, and trade secret rights. You shall not promote an Advertiser, or otherwise participate in the Marketplace, in any manner that is illegal, fraudulent, exploitative, or improper. Furthermore, you shall not use, share, link to, or encourage the use of any of the following (“Prohibited Uses”):

1. any technology intended to obtain data without end user consent (e.g. scraping, data mining, or compilations of personal data);
2. fake redirects, automated software, or other mechanisms to generate actions;
3. actions that are not in good faith, such as those using any device, robot, iframes or hidden frames;
4. illegal actions, or activity that could advocate, promote, or assist any unlawful act, deceive others, or impersonate any person, or misrepresent your identity or affiliation with any person or organization, or give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case;
5. applications to deliver Advertiser’s creative in an illegal or non-compliant manner, including but not limited to, without end user’s permission;
6. end user incentives;
7. adware;
8. spyware;
9. malware;
10. file-sharing and the dissemination of pirated or copyrighted material;
11. hate speech, harassment, bullying, threats, or similar content that advocates for violence or discrimination against any group, organization, or individual; and/or
12. “Prohibited Websites” which include the following
    1. contain misleading, unsubstantiated, or dangerous health claims, advice, or remedies;
    2. depict extreme acts of violence;
    3. redirect users to unwanted, unexpected, misleading, or malicious websites or contain automatic downloads;
    4. promote the use or acquisition of firearms;
    5. promote the use or acquisition of illegal drugs, illegal substances, or other illegal items; or
       
    6. contain nudity.

d. Term and Termination. Your participation in the Marketplace shall continue indefinitely until:

• You Terminate. You may terminate this Marketplace Agreement at any time by deleting your Account and discontinuing your use of the Marketplace. If you use the Marketplace after cancelling your Account, you will be deemed to have agreed to this Marketplace Agreement.
• We Terminate. You agree that Everflow, in its sole discretion, and for any or no reason, may terminate this Marketplace Agreement and suspend and/or terminate your access to the Marketplace without prior notice, and that Everflow will not be liable to you or to any third party for any such suspension or termination.
• Other Remedies Available. If Everflow terminates this Marketplace Agreement or suspends or terminates your access to Marketplace due to your breach of this Agreement or any suspected fraudulent, abusive, or illegal activity (including, without limitation, if you engage in any of the Prohibited Uses outline above), then termination of this Marketplace Agreement will be in addition to any other remedies we may have at law or in equity.
• Effect of Termination. Upon any termination of this Marketplace Agreement, whether by you or Everflow, you may no longer have access to the Marketplace or information that is related to your Account, and you acknowledge that Everflow will have no obligation to maintain any such information in our databases or to forward any such information to you. All obligations and rights provided for herein shall survive termination unless otherwise stated.

e. Payments. You are solely responsible for negotiating the payment terms for any Advertiser Agreements facilitated by your participation in the Marketplace. You, and all Advertisers and Partners, agree that you are solely and exclusively responsible for any federal, state, or local taxes that might apply in connection with such payments. Everflow is not responsible for any payment, taxes, default, or delay in payment by, for, or to you or any party participating in the Marketplace.

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f. Non-Solicitation. You agree that for one (1) year after termination of any Advertiser Agreement you will not solicit, directly or indirectly, any Everflow customers for in-house or third-party performance marketing programs.

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2. ‍Limitations of Liability

a. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE CONTENT, MARKETPLACE, AND SOFTWARE ARE PROVIDED "AS IS," AND NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EVERFLOW MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE CREDIBILITY OF THE CLIENTS OF THE MARKETPLACE; THAT CLIENTS  WILL  PERFORM  AS  PROMISED;  ABOUT  THE  TRUTHFULNESS, ACCURACY, OR COMPLETENESS OF THE MARKETPLACE’S CONTENT OR THE CONTENT OF ANY DATA, INFORMATION OR PRODUCTS AVAILABLE THROUGH THE MARKETPLACE. FOR AVOIDANCE OF DOUBT, ADVERTISERS AND PARTNERS ACKNOWLEDGES AND AGREES THAT EVERFLOW IS NOT THE AGENT OR REPRESENTATIVE OF ANY MARKETPLACE PARTICIPANT FOR ANY PURPOSE WHATSOEVER

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b. EXCEPT AS IT RELATES TO (A) THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (B) A PARTY'S FAILURE TO COMPLY WITH APPLICABLE LAWS; (C) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER; OR (D) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (COLLECTIVELY, “EXCEPTIONAL CIRCUMSTANCES”), IN NO EVENT WILL EITHER PARTY, ITS SUBSIDIARIES OR AFFILIATES, OR ITS OR THEIR RESPECTIVE DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

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3. ‍Indemnity

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a. You agree to defend, indemnify, and hold Everflow, and its respective directors, members, managers, officers, employees, agents, successors and assigns harmless from and against all third-party claims, actions, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Claims”), arising out of or incurred in connection with your breach of this Agreement.

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b. You as the indemnifying party, shall assume the defense or settlement of any Claim with counsel of its choice; provided that the Everflow shall have the right to participate in the defense or settlement of such Claims at its own cost and expense. You, as the indemnifying party shall not consent to entry into judgment or enter into any settlement that admits liability of the Everflow, provides for injunctive or other non-monetary relief affecting Everflow, or that does not include as an unconditional term given by each claimant or plaintiff to Everflow of a release from all liability with respect to such claim without the prior consent of Everflow. Your liability under this clause shall be reduced to the extent that you are actually prejudiced by Everflow’s failure to give notice promptly after Everflow learns of such Claim.

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4. Confidentiality

a. Obligations. "Confidential Information" means (subject to the exclusions below) any non-public information relating to or disclosed in the course of participating in the Marketplace that should be reasonably understood to be confidential, including business  information,  financial  information,  client  lists,  and  intellectual  property (including but not limited to Everflow API, software, research and development, etc.). The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization of the disclosing party (unless disclosure is required by law, regulation, or other legal process), and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under this Marketplace Agreement, and as necessary to comply with legal obligations. The receiving party will promptly return or destroy the other party's Confidential Information upon request.

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b. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the disclosing party, as evidenced by written records; or (iii) was independently developed by the receiving party. If a receiving party is required to disclose Confidential Information by law, regulation, or legal process, the receiving party will not be in violation of these confidentiality provisions on account of making the required disclosure.

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5. Privacy And Communications

a. Privacy Policy. Please refer to our Privacy Policy for information about how we collect, use and share your personal information. By submitting your personal information through the Services, you expressly consent to the collection, use, and disclosure of personal information in accordance with the Privacy Policy.

b. Communications. By participating in the Marketplace, you agree to receive electronic communications from Everflow, including messages regarding your access to Marketplace (e.g., login and password changes). You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.  We have no obligation to store for your later use or access any such electronic communications that we make to you. We may also send you marketing or promotional communications via email that we think will be of interest to you. You may opt out of receiving these communications at any time by following the unsubscribe or opt-out instructions provided therein.

c. Links from the Marketplace. If the Marketplace contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in any advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Marketplace, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

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6. Miscellaneous

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a. Modifications. Everflow reserves the right to modify this Marketplace Agreement. All changes are effective immediately when posted, and apply to all access to and use of the Marketplace thereafter. Your continued use of Marketplace following the posting of a revised Marketplace Agreement means that you accept and agree to the changes. You are expected to check this page frequently so you are aware of any changes, as they are binding on you.

b. Publicity. You agree that Everflow may identify you, by name and by logo, as a Marketplace participant on Everflow's website and other marketing materials, unless you provide written notice that you would like to opt-out.

c. Independent Contractor. Everflow and you are each independent contractors and neither party shall be, nor represents itself to be, the franchiser, partner, broker, employee, servant, agent, or legal representative of the other party for any purpose whatsoever. Neither party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other party, or to bind the other party in any manner or thing whatsoever. The parties do not intend to form a partnership or joint venture as a result of this Agreement.

d. Governing Law and Venue. This Marketplace Agreement will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein.

e. Entire Agreement. This Marketplace Agreement, along with the  Privacy Policy , is the complete and exclusive statement of the agreement between the you and Everflow regarding your participation in the Marketplace and supersedes all prior or concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Marketplace Agreement.

f. Compliance. You agree to follow all applicable international, federal, state, and local laws, rules and regulations, including, without limitation, privacy and data security laws, and export laws.

g. Severability. If any part of this Marketplace Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of this Marketplace Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

h. Waiver. No forbearance or delay by either you or Everflow in exercising or enforcing the provisions of the Agreement shall prejudice or restrict the rights (whether provided by the Agreement or by law) of that party. The waiver of a breach of any provision of this Marketplace Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.

i. Notices. All notices permitted or required under this Marketplace Agreement shall be emailed to legal@everflow.io.

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