Platform Terms & Conditions

Last updated September 3, 2026

These Evertune Platform Terms (this “Agreement”) are entered into by and between Evertune, Inc., a Delaware corporation (“Evertune”), and you or the entity you represent (“Customer”), and govern Customer’s access to and use of the Offerings (as defined below), including the Platform and, if selected on an applicable Order Page, Ads Manager and any other self-serve offering that Evertune makes available for purchase through an Order Page. Evertune and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” This Agreement applies to all self-serve, non-negotiated purchases of the Offerings. It does not apply to Customer’s general use of Evertune’s public website (which is governed by Evertune’s website terms of use), and it does not apply to Customer’s use of the Offerings under a separately negotiated and signed Enterprise Agreement (as defined below), which governs in accordance with Section 15.

THIS AGREEMENT TAKES EFFECT ON THE DATE CUSTOMER FIRST CLICKS “I ACCEPT,” “SIGN UP,” OR A SIMILAR BUTTON OR SUBMITS AN ORDER THROUGH AN ORDER PAGE THAT REFERENCES THIS AGREEMENT (THE “EFFECTIVE DATE”). BY TAKING SUCH ACTION, YOU (I) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (II) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (III) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS, INCLUDING THE ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 14.

IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT SUBMIT AN ORDER, ACCESS THE PLATFORM, OR USE ANY OFFERING.

1. CERTAIN DEFINITIONS

“Ads Manager” means Evertune’s service for setting up, managing, and analyzing Customer’s advertising campaigns on ChatGPT and other supported large language model platforms, including budget allocation tools, prompt-tracker setup, and visibility scoring, as made available to Customer if selected on an applicable Order Page.

“Authorized User” means Customer, as an individual, or, if Customer is an organization, Customer’s employees who are authorized by Customer to access and use the Offerings under the rights granted to Customer pursuant to this Agreement.

“ChatGPT Advertising Spend” means, for any calendar month, Customer’s advertising spend on ChatGPT (or other supported advertising platform) for that month, as recorded by Evertune’s platform, and used to calculate Ads Manager usage-based fees as described on the applicable Order Page.

“Connected Ad Account” means any third-party advertising account (including a ChatGPT or OpenAI advertising account) that Customer connects to the Platform to enable Evertune to provide Ads Manager.

“Enterprise Agreement” means a separate written agreement, signed by both Evertune and Customer (or an affiliate of Customer), that expressly governs Customer’s access to and use of some or all of the Offerings.

“Offerings” means the Services, the Reports, the Platform, and, if selected by Customer on an applicable Order Page, Ads Manager.

“Order Page” means the online order page(s), checkout flow, or order form made available by Evertune through which Customer selects and purchases access to one or more Offerings, and which sets forth the applicable plan, fees, billing frequency, and other commercial terms for Customer’s account.

“Outputs” means the information, suggestions, prompt recommendations, visibility scores, budget allocations, and other outputs generated by Ads Manager, as further described in Section 5.2.

“Platform” means Evertune’s cloud-based brand monitoring and analytics platform made available to Customer pursuant to this Agreement, including any subsequent versions, modifications, or improvements that Evertune may, in its sole discretion, make available under this Agreement from time to time.

“Prompt” means a discrete query submitted programmatically by the Platform on Customer’s behalf to a large language model or similar generative artificial intelligence system in connection with the production of a Report, or, in connection with Ads Manager, the use of a prompt credit as described on the applicable Order Page.

“Report” means a deliverable provided by Evertune to Customer via the Platform, or by electronic mail or other method agreed by the Parties, showing the results of the Services for Prompts submitted by Customer.

“Services” means data analytics services provided by Evertune, which include the collection, analysis, and reporting of data regarding the positioning of Customer-related results on major AI large language models for a defined Report.

“Term” has the meaning set forth in Section 10.1.

2. THE OFFERINGS; ORDER PAGES

2.1 The Offerings. During the Term, Evertune will perform the Services for Customer and will compile the results into Reports. Customer may use the self-serve interface for reporting via the Platform. Reports may also be delivered to Customer via electronic mail. Evertune may grant Customer’s Authorized Users login credentials for the Platform to access and manipulate the data contained in the Reports. If Customer selects Ads Manager on an applicable Order Page, Evertune will also make Ads Manager available to Customer, subject to Section 5.

2.2 Order Pages. Customer selects and purchases access to the Offerings through an Order Page. Each Order Page is incorporated into, and forms part of, this Agreement. This Agreement governs Customer’s access to and use of the Offerings; the applicable Order Page governs the plan selected, the applicable fees, billing frequency, and other commercial terms for that purchase. If there is a conflict between this Agreement and an Order Page, this Agreement controls, except that the Order Page controls with respect to pricing, billing frequency, included usage, and other commercial terms expressly set forth on that Order Page for the applicable Offering.

2.3 Pricing at Time of Purchase. The fees applicable to Customer’s purchase of an Offering are the fees displayed on the applicable Order Page at the time Customer submits its order. Those fees will remain in effect for the plan and term selected, subject to Section 4.3 (Fee Changes); they will not change automatically because Evertune later updates the pricing displayed on its Order Pages generally.

3. ACCESS AND USE

Subject to the terms of this Agreement, including the timely payment in full of all amounts due to Evertune hereunder, Evertune hereby grants Customer a non-exclusive, revocable, terminable, non-transferable, and non-sublicensable license to use the Reports and to access the Reports and the other Offerings through the Platform during the Term. Customer will not distribute, sublicense, assign, sell, or otherwise commercialize the Platform, and will not permit third parties to access the Platform, whether directly or indirectly. Customer shall cause its Authorized Users to comply with the terms of this Agreement applicable to Customer and its Authorized Users, and Customer shall be liable and responsible for any breach of the terms of this Agreement by its Authorized Users. Customer and its Authorized Users shall comply with all applicable laws in connection with their access and use of the Offerings. Customer is responsible for safeguarding its Platform access credentials and Payment Method information and for preventing unauthorized use by third parties, and Customer will implement such controls as necessary to ensure its Authorized Users safeguard their access credentials and prevent unauthorized use by third parties. All feedback, comments, and suggestions for improvements that Customer provides to Evertune hereunder, whether solicited by Evertune or offered voluntarily, are referred to collectively as “Customer Feedback.” Evertune may, in its sole discretion, use any Customer Feedback to improve or develop the Offerings without compensation or obligation to Customer.

4. FEES; PAYMENT

4.1 Fees. The fees for each Offering purchased by Customer are set forth on the applicable Order Page and may include, as applicable, subscription or plan fees, usage-based fees (including per-Prompt fees), one-time setup fees, Ads Manager usage-based fees calculated as a percentage of ChatGPT Advertising Spend, managed service fees, and charges for optional add-ons, additional prompt credits, or overages, in each case calculated and billed as described on the applicable Order Page.

4.2 Payment Method; Authorization to Charge. Customer will provide Evertune, or Evertune’s third-party payment processor, with a valid credit card or other approved payment method (“Payment Method”) at the time of purchase. Customer authorizes Evertune to automatically charge the Payment Method on file for all fees due under this Agreement and the applicable Order Page, including recurring subscription or plan fees, usage-based fees, overages, and any other charges described on the Order Page, without further notice to Customer except as required by law or expressly stated in this Agreement. Customer is responsible for keeping its Payment Method and billing information current and accurate. Fees are charged in advance for subscription or plan fees and in arrears for usage-based charges and overages, in each case as described on the applicable Order Page.

4.3 Fee Changes. Evertune may change the fees for an Offering prospectively, effective (a) for Customer’s next Renewal Term (as defined in Section 10.1), upon at least thirty (30) days’ notice to Customer (which may be by email or by posting on the Platform), or (b) for new purchases, upgrades, or additional usage, immediately upon posting updated pricing on the applicable Order Page. No fee change will apply retroactively to fees already charged, and no fee change will alter the pricing applicable to Customer’s then-current Term unless Customer agrees to the change or the change corrects a pricing error.

4.4 Failed Payments; Suspension. If Evertune is unable to successfully charge Customer’s Payment Method for any amount due, Evertune may retry the charge, and Customer authorizes Evertune to update Customer’s Payment Method using updated information provided by Customer’s card network, bank, or payment processor. If payment remains overdue for more than ten (10) days, Evertune may suspend Customer’s and its Authorized Users’ access to the Offerings until payment is received, in addition to Evertune’s other rights and remedies under Section 8.

4.5 Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, excise, gross receipts, value added, and other similar taxes, duties, and charges of any kind imposed by any federal, state, local, or foreign governmental entity on any amounts payable by Customer hereunder, unless Customer delivers evidence satisfactory to Evertune that Customer is exempt from payment of such taxes. Evertune may charge Customer, and Customer shall timely pay to Evertune in full, any such taxes as set forth on the applicable Order Page that Evertune is required to charge, collect, or remit in any jurisdiction. Notwithstanding the foregoing, in no event shall Customer pay or be responsible for any taxes imposed on Evertune’s income.

4.6 Ads Manager Fee Calculation. All fees calculated under this Agreement based on ChatGPT Advertising Spend will be determined using the ChatGPT Advertising Spend recorded by Evertune’s platform, which will be conclusive and controlling for purposes of calculating such fees. In the event of any discrepancy between the ChatGPT Advertising Spend recorded by Evertune’s platform and the advertising spend reported by OpenAI or any other third-party platform, the records of Evertune’s platform will control. OpenAI (or the applicable third-party advertising platform) bills Customer directly for the underlying media spend; Evertune’s Ads Manager usage-based fee is calculated separately based on that spend and charged separately by Evertune.

5. ADS MANAGER

5.1 Connected Ad Accounts. If Customer selects Ads Manager, Customer may connect one or more Connected Ad Accounts to the Platform to enable Evertune to set up, manage, or analyze Customer’s advertising campaigns. Customer represents and warrants that it has all necessary rights and authority to connect each Connected Ad Account to the Platform and to grant Evertune the access described in this Section 5.1. Customer authorizes Evertune to access, retrieve, and use data from each Connected Ad Account solely to provide Ads Manager and the other Offerings. Customer remains solely responsible for its relationship with, and obligations to, the provider of each Connected Ad Account, including for all media spend, fees, and charges billed by that provider, and for that provider’s terms of service. Evertune is not a party to, and has no responsibility for, any agreement between Customer and the provider of a Connected Ad Account.

5.2 Outputs; No Reliance. Ads Manager is powered by machine learning and artificial intelligence technologies. Outputs may be inaccurate, incomplete, outdated, or otherwise unreliable, and do not constitute professional, financial, legal, marketing, or media-buying advice. Customer is solely responsible for evaluating Outputs before relying on or acting upon them, including before allocating advertising budget or committing media spend in reliance on Outputs. Customer assumes all risks, decisions, actions, and omissions arising out of or relating to its use of Ads Manager or any Outputs. Outputs are Offerings, and any data, aggregated insights, models, or derivative works generated by or in connection with Ads Manager are New I/P (as defined in Section 9), in each case for purposes of the ownership provisions of this Agreement.

5.3 Managed Services. If Customer elects Evertune-managed campaign services on an applicable Order Page, the scope of those services and the associated managed service fee will be as set forth on that Order Page or as otherwise agreed in writing between the Parties.

6. PROHIBITED USES

In connection with Customer’s use of the Offerings, Customer will not, and will not permit any third party to: (a) copy, reproduce, modify, disable, interfere with, misuse, damage, reverse engineer, disassemble, decompile, create derivative works of, or allow third party access to the Platform, any I/P or New I/P (each as defined in Section 9) of Evertune, or any portion of the foregoing; (b) transmit material containing viruses, malware, or other harmful or deleterious computer code, files, scripts, agents, or programs; (c) bypass, exploit, defeat, or disable limitations or restrictions placed on the Platform, or attempt any of the foregoing; (d) conduct any denial of service (DoS) attack on the Platform or otherwise attempt to disrupt, disable, or overload the Platform; (e) use automated means, such as bots, or otherwise use bots, botnets, or any cryptocurrency mining operations with respect to the Platform; (f) attempt to gain unauthorized access to the Platform or the computer systems or networks related to the Platform; (g) create a false identity or attempt to mislead others as to the identity of the sender or the origin of any data or communications; (h) use the Offerings to violate any applicable law; (i) interfere with another user’s use and enjoyment of the Offerings; (j) manipulate, falsify, or distort the data, analytics, or Reports generated by the Services, including for purposes of deceiving or misleading third parties; (k) use the Offerings to engage in behavior that is offensive, threatening, discriminatory, or harmful to others, including harassment, bullying, or abusive conduct; (l) use the Offerings to develop, promote, or deploy competing products or services that might conflict with or directly undermine the Offerings; or (m) use Ads Manager or a Connected Ad Account in a manner that violates the terms of service of the applicable third-party advertising platform.

7. PRIVACY; USE OF INFORMATION; USER CONTENT

Except with the prior written consent of Evertune, or for information regarding Customer or its Authorized Users expressly required by Evertune for access to or use of the Offerings, Customer shall not import, upload, or incorporate into the Platform or other Evertune systems or technology, or take any other action that could result in the access, storage, identification, or discovery through the Platform or by Evertune of, personal information or personally identifiable information that is subject to privacy laws (collectively, “PII”). To the extent Customer provides or makes PII available on the Platform or to Evertune, Customer represents and warrants that Customer has complied with all applicable privacy laws and received the proper authority or consent to allow Evertune to collect, store, process, and use such PII on the Platform or otherwise by Evertune as permitted by this Agreement. Customer agrees that, with respect to PII that Customer provides or makes available on the Platform or to Evertune, Customer is the “controller,” “business,” or similar designation and Evertune is the “processor,” “service provider,” or similar designation, as those terms may be used under applicable privacy laws. Evertune may process such PII only in accordance with this Agreement and Evertune’s Privacy Policy posted at https://www.evertune.ai/legal/privacy-policy (as updated from time to time, the “Privacy Policy”), which is incorporated into this Agreement, or in accordance with lawful and reasonable instructions given by Customer, including those contained in this Agreement. Customer is responsible for all compliance with applicable privacy law, including responding to data subject requests and providing data subjects with required notifications, including notifications of breach. To the extent Evertune assists Customer with its compliance obligations under applicable privacy law, Customer shall reimburse Evertune for any time spent by Evertune for such assistance at Evertune’s then-standard or other reasonable professional services rate and any out-of-pocket costs reasonably incurred. Evertune may use any data (including PII) provided by Customer and/or derived from Customer’s use of the Offerings for the following purposes: (a) performing this Agreement; (b) exercising Evertune’s rights and discharging its obligations under this Agreement; (c) improving the Offerings; (d) as necessary to comply with any applicable law; and/or (e) as otherwise agreed to in writing between Evertune and Customer; provided, that Evertune may not use PII to improve the Offerings unless Evertune has anonymized or de-identified such PII so that it is no longer PII.

8. SUSPENSION OF USE & ACCESS

In addition to any other of Evertune’s available rights or remedies, Evertune may suspend Customer’s and/or its Authorized Users’ access to and use of the Offerings immediately and without notice if any payment payable to Evertune is not paid in full when due, or if Evertune, in good faith, believes: (a) Customer or an Authorized User has accessed or used the Offerings for a prohibited purpose or breached any representation, warranty, term, or condition of this Agreement; (b) Customer or any Authorized User is accessing or using the Offerings in a manner that threatens the security, integrity, or reliability thereof; (c) there has been unauthorized access or fraud related to Customer’s account, Customer’s Payment Method, or Customer’s or its Authorized Users’ access to or use of the Offerings; and/or (d) such access to or use of the Offerings will or is reasonably likely to expose Evertune to legal, regulatory, or compliance risk.

9. OWNERSHIP

Customer acknowledges and agrees that title to and ownership of the Offerings, and all written materials, systems, software, code, documentation, tools, utilities, methodologies, specifications, techniques, and other materials, data, inventions, know-how, and hardware, and all legal rights in and to the foregoing (including all derivative works and/or modifications and enhancements thereof, “I/P”), together with the intellectual property rights therein, is and will remain the property of Evertune or its licensors. All rights, title, and interest in and to intellectual property resulting from Evertune’s provision of the Offerings, including Customer Feedback and Outputs, together with the intellectual property rights therein (the “New I/P”), is from inception and will remain the sole property of Evertune. Evertune retains the right to aggregate and combine Report data, any data Evertune retrieves or creates to compile such Report data, and insights relating to such Report data for improving the Platform and/or Offerings and developing and providing new services or offerings. Customer will not earn or acquire any rights or licenses in the Offerings or in any other Evertune I/P or New I/P on account of this Agreement or Customer’s or Evertune’s performance under this Agreement. Customer retains all right, title, and interest in and to any intellectual property owned by Customer prior to entering into this Agreement or developed by Customer outside of the scope of this Agreement (“Customer’s Pre-Existing IP”). Nothing in this Agreement transfers or otherwise affects Customer’s ownership of its Pre-Existing IP.

10. TERM; TERMINATION

10.1 Term. This Agreement begins on the Effective Date and continues, with respect to each Offering purchased, for the term set forth on the applicable Order Page, which may be month-to-month or a fixed subscription period (the “Term”). Unless Customer cancels in accordance with Section 10.3, or the applicable Order Page states otherwise, each Term automatically renews for successive renewal periods of the same duration as the original Term (each, a “Renewal Term”) at Evertune’s then-current pricing for the applicable plan, subject to Section 4.3.

10.2 Termination for Cause. Either Party may terminate this Agreement, including with respect to any Offering, immediately upon written notice to the other Party (a) following a material breach by the other Party (which, in the case of Customer, includes payment more than ten (10) days past due) that remains uncured ten (10) days after receipt of written notice of such breach from the non-breaching Party; or (b) if performance under this Agreement becomes illegal or unenforceable under applicable law.

10.3 Termination for Convenience; Cancellation. Customer may cancel its subscription to an Offering at any time through its account settings on the Platform or by written notice to Evertune, with such cancellation effective at the end of the then-current Term or Renewal Term unless a different notice period is stated on the applicable Order Page. Evertune may terminate this Agreement or decline to renew any Offering for convenience upon at least thirty (30) days’ written notice to Customer. Except as required by law or expressly stated on the applicable Order Page, fees already paid are non-refundable, and cancellation does not relieve Customer of its obligation to pay fees accrued through the effective date of cancellation.

10.4 Effect of Termination. Upon any termination or expiration of this Agreement or an Offering for any reason, Customer’s and its Authorized Users’ rights to access and/or use the affected Offering(s) shall automatically terminate, and (a) Customer shall return to Evertune all property, I/P, New I/P, and Confidential Information of Evertune in Customer’s possession; and (b) Evertune shall return to Customer all property, Customer’s Pre-Existing IP, and Confidential Information of Customer in Evertune’s possession. Sections 1, 4 (with respect to fees accrued but unpaid), 6 through 9, this Section 10, and Sections 11 through 16 shall each survive any termination or expiration of this Agreement for any reason, in accordance with their respective terms.

11. DISCLAIMERS

THE OFFERINGS AND CONNECTIVITY THERETO ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY STATED HEREIN, NEITHER EVERTUNE NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS, THIRD PARTY PROVIDERS, REPRESENTATIVES, CONTRACTORS, SUBCONTRACTORS, CUSTOMERS, MERCHANTS, OR LICENSORS (EACH, AN “EVERTUNE PARTY”) MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO THE OFFERINGS, AND ALL SUCH WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THE OFFERINGS. EVERTUNE DOES NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR DEFECT-FREE, THAT THE SERVICES WILL NOT BE INTERRUPTED, OR THAT ANY OFFERINGS OR OUTPUTS WILL BE SECURE, ACCURATE, OR RELIABLE, NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS, REVENUES, INCOME, ADVERTISING OUTCOMES, OR PROFITS THAT MAY BE OBTAINED FROM THE USE THEREOF. EVERTUNE WILL HAVE NO OBLIGATION TO UPDATE OR MODIFY ANY OFFERING, FIX ANY ERRORS IN ANY OFFERING, OR TAKE ANY SIMILAR ACTION WITH RESPECT TO ANY OFFERING. THE OFFERINGS MAY ONLY BE USED FOR CUSTOMER’S INTERNAL BUSINESS PURPOSES AND ARE NOT INTENDED FOR PERSONAL USE OR USE BY CONSUMERS. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER ACKNOWLEDGES AND AGREES THAT CONSUMER PROTECTION LAWS DO NOT APPLY TO CUSTOMER’S OR ITS AUTHORIZED USERS’ ACCESS OR USE OF THE OFFERINGS. THE OFFERINGS MAY INCLUDE LINKS, INTEGRATIONS, OR CONNECTIONS TO THIRD-PARTY WEBSITES, APPLICATIONS, OR SERVICES, INCLUDING CONNECTED AD ACCOUNTS. SUCH LINKS, INTEGRATIONS, AND CONNECTIONS DO NOT IMPLY REVIEW OR ENDORSEMENT BY EVERTUNE, AND EVERTUNE DISCLAIMS ANY REPRESENTATION, WARRANTY, LIABILITY, OR OBLIGATION REGARDING ANY THIRD-PARTY WEBSITE, APPLICATION, SERVICE, PRODUCT, STATEMENT, OR CLAIM FROM, MADE BY, OR ABOUT A THIRD PARTY, AND ANY REPRESENTATION, WARRANTY, LIABILITY, OR OBLIGATION REGARDING THE ACTIONS OR OMISSIONS OF ANY THIRD PARTY. CUSTOMER MUST REVIEW AND COMPLY WITH ANY THIRD-PARTY TERMS OF SERVICE AND/OR OTHER APPLICABLE THIRD-PARTY TERMS, RESTRICTIONS, OR AGREEMENTS.

12. LIMITATION OF LIABILITY; INDEMNIFICATION; FORCE MAJEURE

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS, COST OF COVER, LOST REVENUE, LOSS OR THEFT OF DATA, AND/OR UNAUTHORIZED ACCESS TO DATA, WHETHER OR NOT ANY SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE. EXCEPT FOR EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, EACH PARTY’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED AMOUNTS ACTUALLY RECEIVED BY EVERTUNE FROM CUSTOMER DURING THE PRECEDING SIX-MONTH PERIOD. THE LIMITATIONS PROVIDED IN THIS SECTION 12 WILL APPLY REGARDLESS OF THE LEGAL THEORY APPLICABLE TO ANY SUCH LIABILITY OR ANY RELATED CLAIM, WHETHER IN TORT, CONTRACT, STATUTORY, AT LAW, IN EQUITY, OR OTHERWISE. Each Party will indemnify and defend the other Party and its directors, managers, officers, employees, representatives, and affiliates from and against any and all claims, actions, proceedings, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and expenses) suffered or incurred by any of such indemnitee(s) arising out of or related to a Party’s, and in respect of Customer any of its Authorized Users’: (a) breach of this Agreement; or (b) fraud, willful misconduct, or gross negligence in connection with this Agreement or access to or use of the Offerings. Notwithstanding anything to the contrary in this Agreement, no failure, delay, or default in performance of any obligation pursuant to this Agreement by either Party shall constitute an event of default or breach to the extent that such failure to perform, delay, or default arises out of an unforeseeable cause, existing or future, beyond the reasonable control of such Party, including labor strikes, supply shortages, riots, earthquakes, epidemics, pandemics, terrorist actions, wars, insurrections, political instability, fires, floods, extreme weather, power failure, telecommunications outage, traffic, crime, and/or acts of God (each, a “Force Majeure Event”). If a Party relies upon a Force Majeure Event in relation to a failure, delay, or default in performance, such Party shall, as promptly as reasonably practicable after the Force Majeure Event first affects its performance, provide the other Party with written notice of the facts constituting such Force Majeure Event and, to the extent such Force Majeure Event is continuing, reasonable updates on its progress in resolving such Force Majeure Event.

13. CONFIDENTIALITY

For purposes of this Agreement, all non-public information delivered (a) by Customer to Evertune in connection with this Agreement is Customer’s confidential information if conspicuously marked or identified in writing as “Confidential,” or (b) by Evertune to Customer in connection with this Agreement is Evertune’s confidential information (in each instance, the disclosing Party’s “Confidential Information”). Each of Evertune and Customer will maintain the other Party’s Confidential Information in the strictest confidence, and neither Party may disclose any Confidential Information of the other Party to any other person or entity, or use any Confidential Information of the other Party, except as expressly permitted by this Agreement, as necessary to perform this Agreement, as required by applicable law or governmental or judicial authority, or with the prior written consent of the other Party. This Agreement and its provisions are Evertune’s Confidential Information. The Parties’ respective obligations under this Section 13 are in addition to, and do not supersede or modify, any other non-disclosure or non-use agreements between the Parties relating to the use of information disclosed between them.

14. DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION WAIVER

14.1 Agreement to Arbitrate. Except as set forth in Section 14.4, Evertune and Customer agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the Offerings (a “Dispute”) will be resolved exclusively through final and binding arbitration rather than in court, subject to the small claims court and equitable relief carve-outs in Section 14.4.

14.2 Arbitration Procedures. The arbitration will be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules then in effect (or, if Customer is an individual acting primarily for personal purposes rather than on behalf of a business, the AAA Consumer Arbitration Rules then in effect), as modified by this Agreement. The arbitration will be conducted by a single arbitrator and, unless the Parties agree otherwise, will take place in New York, New York, or be conducted by videoconference or on written submissions. The arbitrator’s decision will be final and binding, and judgment on the award may be entered in any court of competent jurisdiction.

14.3 Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO PURSUE A DISPUTE ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. If a court or arbitrator determines that this class action waiver is unenforceable as to a particular Dispute, that Dispute may proceed only in court and may not be arbitrated.

14.4 Exceptions. Either Party may bring an individual action in small claims court for a Dispute within the scope of that court’s jurisdiction. Notwithstanding Section 14.1, either Party may seek injunctive or other equitable relief in a court of competent jurisdiction to protect its Confidential Information or intellectual property rights.

14.5 Opt-Out. Customer may opt out of this Section 14 by sending Evertune written notice at legal@evertune.ai within thirty (30) days of the date Customer first becomes bound by this Agreement, stating Customer’s name, account email, and intent to opt out of arbitration. If Customer opts out, neither Customer nor Evertune will be required to arbitrate Disputes with the other, but all other provisions of this Agreement, including Section 16.5 (Governing Law), will continue to apply.

15. ENTERPRISE AGREEMENT

If Customer separately enters into an Enterprise Agreement with Evertune covering some or all of the Offerings, then, as of the effective date of that Enterprise Agreement, the Enterprise Agreement will govern Customer’s access to and use of the covered Offerings and will supersede this Agreement to the extent of any conflict, provided that: (a) this Agreement will continue to govern fees paid or accrued under this Agreement prior to the effective date of the Enterprise Agreement, and any Offerings not covered by the Enterprise Agreement; and (b) any obligations under this Agreement that are expressly stated to survive termination will continue to apply, except to the extent the Enterprise Agreement expressly addresses the same subject matter.

16. MISCELLANEOUS

16.1 Publicity. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that Evertune may, without Customer’s consent, include Customer’s name and other indicia in its lists of Evertune’s current or former customers in promotional and marketing materials.

16.2 Platform Modifications. Evertune reserves the right to continually evolve the Offerings with or without notice, and to discontinue the Platform or Ads Manager on ninety (90) days’ notice. Evertune will provide this notice when Customer logs into the Platform, on the Evertune website, or by email, and the notice shall be effective immediately. Upon any discontinuation of the Platform, Evertune will deliver Reports via email or other method agreed between Evertune and Customer.

16.3 Entire Agreement; Amendment/Waiver; Assignment; Severability. This Agreement, together with all Order Pages, constitutes the entire agreement between the Parties with respect to the subject matter hereof. No amendment or waiver of this Agreement or any provision hereof may be made except by means of a written instrument signed by each Party or, with respect to modifications made in accordance with Section 16.7, as provided therein. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder to any person or entity without Evertune’s prior written consent. Evertune may assign or transfer this Agreement or any of its rights or obligations hereunder to an affiliate or to an acquiror of all or a majority of its business or assets, in each case without notice to, or the consent of, Customer. If any provision of this Agreement is found by a court or arbitrator to be void, invalid, or unenforceable, that provision will be reformed to comply with applicable law or stricken if not so curable, so as not to affect the validity or enforceability of the remainder of this Agreement.

16.4 Notices. All notices, demands, and other communications provided for or permitted under this Agreement will be made in writing by personal delivery or by email, if to Evertune to the contact address set forth on its website, and if to Customer, to the contact information associated with Customer’s account.

16.5 Governing Law; Jurisdiction. This Agreement and any Dispute not subject to arbitration under Section 14 are governed by and will be construed in accordance with the substantive and procedural laws of the State of New York, without regard to conflicts of laws principles that would result in the application of another state’s laws. Any legal suit, action, or proceeding not subject to arbitration under Section 14 may be instituted in the federal courts of the United States of America or the courts of the State of New York, in each case located in the City of New York and County of New York, and each Party irrevocably submits to the non-exclusive jurisdiction of such courts for any such suit, action, or proceeding. Service of process on a Party in accordance with Section 16.4, or in any other manner permitted by applicable law, will be effective service of process for any suit, action, or other proceeding brought in any such court.

16.6 Independent Contractor; Certain Representations and Warranties. Each Party is acting as an independent contractor with respect to the other Party, and not as a partner or joint venturer of the other Party. Each Party represents and warrants that (a) it has all necessary legal rights, power, capacity, authority, permissions, and approvals to execute, deliver, and perform this Agreement; (b) it is currently, and at all times during the Term will be, in compliance with all applicable laws in connection with this Agreement and its operations and business; (c) this Agreement and its performance of this Agreement does not, and at all times during the Term will not, violate or conflict with any other legal obligation or restriction applicable to it or its assets or operations; and (d) in respect of Customer, neither Customer nor any of its Authorized Users is on any government prohibited, denied, or unverified party, sanctions, debarment, or exclusion list, or export-controlled restricted party list, including any list maintained by the U.S. Office of Foreign Assets Control (“OFAC”) (collectively, “Sanctions Lists”). If Customer or any Authorized User is included on any Sanctions List, Customer will immediately notify Evertune and discontinue Customer’s and such Authorized User’s access to and use of the Offerings, as applicable. Customer further represents and warrants that it, and the individual accepting this Agreement, is at least eighteen (18) years of age or the age of legal majority in its jurisdiction, and that Customer is entering into this Agreement for business purposes and not as a consumer.

16.7 Modifications to Terms, Offerings, and Pricing. Evertune reserves the right to modify the terms and conditions of this Agreement, including available Platform features and the scope of the Offerings, at any time. Evertune will provide notice of any material modification by posting the updated Agreement on its website or the Platform, updating the “last updated” date, and, where required by law, providing additional notice (which may be by email). If Customer does not agree to a modification, Customer’s sole remedy is to terminate this Agreement by ceasing use of the Offerings and cancelling its subscription(s) prior to the effective date of the modification. Customer’s continued access to or use of the Offerings following the effective date of a modification constitutes Customer’s acceptance of the modified terms. For the avoidance of doubt, this Section 16.7 does not permit Evertune to retroactively change the pricing applicable to fees already charged or to a Term already in progress, except as provided in Section 4.3.

16.8 Electronic Acceptance; Consent to Transact Electronically. By clicking “I Accept,” “Sign Up,” or any similar acknowledgment button or checkbox on the Platform, an Order Page, or Evertune’s website, Customer agrees to be legally bound by this Agreement in its entirety. Such electronic acceptance constitutes a valid and binding signature for all purposes under applicable law, including the Electronic Signatures in Global and National Commerce Act (E-SIGN) and the Uniform Electronic Transactions Act (UETA), and has the same legal force and effect as a handwritten signature. Customer further consents to conduct business and receive communications electronically, and acknowledges that this Agreement and all related documents may be executed and delivered in electronic form. Evertune shall maintain a record of Customer’s acceptance, including the date, time, and version of the Agreement in effect at the time of acceptance, which record shall be admissible as evidence of Customer’s agreement to be bound.

16.9 Periodic Review of Terms. Customer is solely responsible for periodically reviewing the then-current version of this Agreement, which will be posted and accessible on Evertune’s website and/or the Platform at all times. The date of the most recent modification to this Agreement will be identified at the top of this Agreement. Customer’s continued access to or use of the Offerings following any modification to this Agreement constitutes Customer’s binding acceptance of that modification, regardless of whether Customer has actually reviewed the updated terms, subject to Section 16.7.