Terms and Conditions

Last Updated October 11th, 2024

1.SaaS Services and Support

1.1 Subject to the terms and conditions (this “Agreement”) and the Order Form executed by you (“You” or the “Customer”), into which this Agreement is expressly incorporated and made part, Eva Commerce, Inc whose principal place of business is situated at 5770 Aster Meadows Pl, San Diego, CA 92130 (“We” or the “Company”) will use commercially reasonable efforts to provide Customer with the Services (as defined in the Order Form). As part of the registration process, the Customer will identify an administrative username and password for the Customer’s Company account. The Company reserves the right to refuse registration or cancel passwords it deems inappropriate. The Customer and the Company may each be referred to herein as a “Party” and collectively as the “Parties.”

1.2 Subject to the terms hereof, the Company will provide Customer with reasonable technical and business support services by the Company’s standard practice.

1.3 Should there be any conflict between this Agreement and the Order Form, the terms of the Order Form shall control. 

2. Eva Software Restrictions and Responsibilities

2.1 Customer will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software.

2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software, or anything related to it, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items,” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement. It will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with the Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer, at this moment, agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the preceding or otherwise from Customer’s use of Services. Although the Company has no obligation to monitor the Customer’s use of the Services, Company may do so. It may prohibit any use of the Services it believes may be (or alleged to be) in violation of the preceding.

2.4 Access to Marketplaces and Equipment Responsibility: Customer shall ensure access to their Amazon, Walmart, or similar marketplace accounts. The Customer is responsible for acquiring and maintaining all necessary equipment (e.g., hardware, software, servers) to connect to and use the services. Additionally, the Customer is responsible for the security of their equipment, accounts, passwords, and files and all activity conducted through their accounts or equipment, regardless of their knowledge or consent.

2.5 Account Requirements. To set up an Eva Account and use the Services, you must:

Be 18, or the age of majority in your province, territory, or country, to become a Member. Individuals under the age of 18, or the applicable age of majority, may utilize the Service only with the involvement of a parent or legal guardian, under such person’s account and otherwise subject to these Terms.

Provide your full legal name, valid email address, phone number, and any other information we request to complete your account signup process.

Provide us with one or more Payment Methods. “Payment Method” means a current, valid, accepted payment method, which may be updated occasionally and includes payment through your account with a third party.

Personally and manually create your account without using any automated means, except for any auto-complete feature offered by your internet service provider. A third party may not create an account for you, and you must not allow any third party to use your information to create an account.

Duly execute an Order Form memorializing the scope of the Services governed by this Agreement. 

Account Ownership: The member who created the account and whose Payment Method is charged (the “Account Owner”) has access to and control over the account and is responsible for any activity that occurs through the account. To maintain control over the account and prevent anyone from accessing the account, the Account Owner should maintain control over access to the Service and not reveal the password or details of the Payment Method associated with the account to anyone. Account owners are not allowed to share their account, log-in, or access-related credentials with any other party unless explicitly stated otherwise in the details related to the specific plan they purchased. The Company may, at its sole absolute discretion, elect to terminate or suspend your account for any reason if it deems such action in its best interest. You must immediately notify us of any unauthorized use of your account. We will not be liable for any loss or damage from your failure to comply with this security obligation.

2.6 Non-Solicitation of Employees, Consultants, Contractors, and Agents

Both the Customer and the Company agree not to solicit, hire, or engage each other’s employees, consultants, or contractors, including for short-term projects, during the term of this Agreement and for one year after its termination unless the other party provides written permission. If either party breaches this term, they will compensate the other party with a fixed amount of $100,000, plus legal fees. This amount will serve as the sole remedy for such a breach.

2.7 No Poaching of Customer’s Clients: The Company is committed to maintaining the highest standards of integrity and professionalism in its business relationships. To avoid potential conflicts of interest, we will not provide services to any company or individual that, to our knowledge, is concurrently engaged in a contractual relationship with the Customer.

3. Confidentiality; Proprietary Rights

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (from now on referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Company includes non-public information regarding the Service’s features, functionality, and performance. Proprietary Information of Customer includes non-public data provided by Customer to the Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i)to take reasonable precautions to protect such Proprietary Information, and (ii)not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the preceding shall not apply concerning any information after one(1) year following the disclosure thereof or any information that the Receiving Party can document (a)is or becomes generally available to the public, or (b)was in its possession or known by it before receipt from the Disclosing Party, or (c)was rightfully disclosed to it without restriction by a third party, or (d)was independently developed without the use of any Proprietary Information of the Disclosing Party or (e)is required to be disclosed by law.

3.2 Customer shall own all rights, titles, and interests in and to the Customer Data. Company shall own and retain the all right title and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications to it, (b) any software, applications, inventions, or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the preceding.

3.3 Notwithstanding anything to the contrary, the Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived from there). Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business.No rights or licenses are granted except as expressly set forth herein.

4. Payment of Fees

4.1 Customer will pay Company the applicable fees described in the Order Form for the Services. Should Customer elect to use the Services in a manner that exceeds the scope defined within the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall incur additional Fees at the Company’s then-current rate for such additional Services. 

4.2 Term, Renewal, and Invoicing: The term of this Agreement consists of the Initial Term, as specified in the Order Form, and any subsequent Renewal Term(s), which will automatically renew for the same duration unless otherwise specified. The first month of the Initial Term is prorated to align with the billing cycle. The first full month following the prorated period defines the starting month of the Initial Term. The start and end dates of the term will follow the invoicing cycle, with invoices issued from the 2nd of each month to the 2nd of the following month.

Example: If the customer starts the service on September 16, 2024, the first month will be prorated from September 16 to October 2, 2024. The first full month of the Initial Term will then run from October 2 to November 2, 2024. If the Initial Term is six months, the Agreement will continue until April 2, 2025. Subsequent Renewal Terms, unless otherwise specified, will follow this same billing cycle, with each new term beginning on the 2nd of the month.

4.3 Pricing Amendments: The Company reserves the right to amend the pricing terms (including applicable fees) for any Renewal Term, provided written notice is given to the Customer, unless a specific contract with a set duration is in place. Any changes will apply to the following term after the current one ends. For inquiries, please contact the Company’s customer support at finance@eva.guru.

4.4 Billing and Payment Terms: The Company will issue invoices based on the contract. Unless a specific payment term is outlined in the contract, payment is due immediately upon receipt. If payment for Platform and Recovery Services is not received within 30 days, services will be suspended. If payment is not received within 60 days, all services will trigger the cancellation of the next term and suspension of Managed Services. Invoices will continue to be sent to the Customer until the end of the current term by the cancellation. A finance charge of 4.3% per month (or the maximum allowed by law) will apply to any outstanding balance. The Company may recover attorney’s fees and costs for collection, and the Customer is responsible for all applicable taxes.

4.5 Payment Methods: To use the Service, you must provide one or more authorized payment methods. We do not accept payment via physical checks. Please use one of our accepted digital payment methods for all transactions. You authorize us to charge these methods for any fees under this agreement. You are still responsible for the outstanding amount if the Company cannot collect the fees owed. Failure to pay may result in suspension or termination of services. Some payment methods may incur additional processing fees from their issuers, which the Company will specify on the invoice as service surcharges. 

4.6 Refunds: No refunds or credits will be provided for partially used periods, and all payments are non-refundable. If you cancel, you can still access the Services until your term ends. You agree not to initiate a chargeback of payments through your payment provider. Doing so will be deemed a material breach of this Section, and the Company may hold you liable for such action, including recovery of its attorney’s fees and costs.

4.7 Upgrades: Certain subscription packages on the website’s pricing page are subject to potential upgrades. The customer acknowledges and agrees that the subscription fee for such packages may be contingent upon fluctuations in the customer’s revenue. In the event of an increase in the customer’s revenue, the customer agrees to pay any associated surplus by the terms outlined on the website and within the subscription agreement. 

4.8 Subscription Suspension Due to External Factors: If services are suspended due to external factors beyond the control of both the Customer and the Company, the suspension may last for a maximum of two months. The suspension will not alter the overall contract duration; however, the current term end date will be postponed by the length of the suspension. No invoices will be issued to the customer during the suspension period.

5. Term and Termination

5.1 Term and Renewal The term of this Agreement consists of two parts: the Initial Term, as specified in the Order Form, and the Renewal Term(s). The Agreement will automatically renew for additional periods, equal in duration to the Renewal Term, even if the Initial Term was different. Each renewal period will be the same length as the previous one unless otherwise specified. The start and end dates of the term will be determined following clause 4.2 of this Agreement.

5.2 Termination by Customer: The Customer may not terminate the current term but may request the cancellation of the following (Renewal) term during the current term. To cancel, the Customer must provide notice via email to the assigned Key Account Director, Cluster Leader, POD Leader, Brand Manager, or through the Eva Platform. Eva will offer a feedback meeting to address concerns and propose solutions if the request is made, though the Customer can choose whether to proceed with or cancel the request. If the current term is month-to-month, cancellation will take effect at the end of the current term, after a two-month exit period. For terms longer than one month, the cancellation will take effect at the end of the current term, following a one-month exit period.

5.3 Termination Due to Dissatisfaction: If the Customer is dissatisfied with the results of a month-to-month service due to promised but not delivered outcomes, the Customer may request a cancellation call with Customer Success to discuss and set KPIs that can be achieved within a 30-day cure period. If no resolution is completed within the cure period, the Customer’s contract will be canceled without requiring two full months of exit notice.

5.4  Amazon Reimbursement and Vendor Recovery Services: If the Customer revokes access to the Marketplace platform (such as Amazon, Walmart, or similar) and the Company is unable to perform activities, such as Amazon reimbursement services, during the cancellation period, the Company will calculate the monthly loss. This calculation will be based on the average monthly invoice of the service over the last three months. Subsequently, the Company will charge the Customer for two months of the invoice amount, determined by the calculated monthly loss. 

5.5 Amazon Reimbursement Clawback An Amazon reimbursement clawback occurs when Amazon reclaims funds previously reimbursed to a seller. In such cases, the Customer may request a refund from Eva for any clawback amounts within 60 days of Eva issuing an invoice related to that reimbursement. After these 60 days, Eva is not responsible for processing any refund requests associated with clawbacks.

6. Warranty and Disclaimer

The company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled Service disruption. HOWEVER, THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL SUCH WARRANTIES OTHER THAN THAT WHICH IS EXPRESSLY STATED HEREIN ARE EXPRESSLY DISCLAIMED.

7. Indemnity for Breach of Terms of Use

Customer agrees to indemnify and hold the Company, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims, or expenses (including attorneys’ fees), made against the Company by any third party due to or arising out of or in connection with your use of the Service or Website.

8. Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES OF THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A)FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B)FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C)FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR(D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 3 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE COMPANY PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS OF THIS SECTION SHALL NOT APPLY TO LIABILITY RESULTING FROM THE COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. 

Disclaimer of Warranties. THE COMPANY MAKES NO WARRANTIES EXCEPT FOR THAT WHICH ARE EXPRESSLY PROVIDED HEREIN. ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES, ARE EXPRESSLY DISCLAIMED.

Results Not Guaranteed. THE COMPANY MAKES NO REPRESENTATION REGARDING THE RESULTS AND/OR OUTCOMES OF THE SERVICES DESCRIBED ON THE ORDER FORM, INCLUDING (BUT NOT LIMITED TO) RESULTS FROM SEO-RELATED SERVICES, STATUS OF THIRD PARTY SALES PLATFORM ACCOUNTS, PROFIT MAXIMIZATION, OR SERVICES OTHERWISE LISTED ON ANY ORDER FORM. 

Third-Party Resources. The Website and the Service may contain links to third-party websites or other resources. Customer acknowledges and agrees that the Company is not responsible or liable for the availability, accuracy, content, or policies of third-party websites or other resources. Links to such websites or resources are provided only as a convenience to the Customer and do not imply any endorsement by or affiliation with the Company. The customer acknowledges sole responsibility for and assumes all risk arising from their use of any such third-party websites or resources.

9. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 

This Agreement is not assignable, transferable, or sublicensable by Customer except with Company’s prior written consent. The company may transfer and assign any of its rights and obligations under this Agreement without consent. T

his Agreement, the Order Form, and any other documents incorporated by reference therein is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. 

No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind the Company in any respect whatsoever. 

In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. 

All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; a day after it is sent, if transmitted by facsimile or e-mail; the day after it is sent if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail. 

This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be brought against any of the parties only in the courts of the State of California, County of San Diego, and each of the parties consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and irrevocably waives any objection to venue laid therein.

No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure by Company to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise by Company of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Depositor to make payments to Warehouse Operator hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within seven (7) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 14, the other Party may thereafter terminate this Agreement upon thirty (30) days’ written notice. For avoidance of doubt, (i) any payment obligations shall not be excused pursuant to this Section; and (ii) with regard to the Company’s 3PL Services offered pursuant to Section 9, if Warehouse Operator has been unable to remove or deliver the Goods due to any reason specified in this Section such Goods shall be subject to storage charges until such Goods are actually removed/delivered.

Security. The privacy and protection of the Customer’s data are of the utmost importance to the Company. The Company takes all reasonable technical and organizational precautions to protect the confidentiality, security, and integrity of the Customer’s Personal Data. Although the Company uses multiple and various security measures to help protect the Customer’s Personal Data against loss, misuse, or unauthorized disclosure, Company cannot %100 guarantee the security of information transmitted to the Company over the Internet.

Storage. The Personal Data that the Customer provides to the Company is generally stored on servers located in the United States. If the Customer is located in another jurisdiction, the Customer should be aware that once the Personal Data is submitted through the Company’s Service, it will be transferred to the Company’s servers in the United States and that the United States currently does not have uniform data protection laws in place.

Retention. The company will retain the Customer’s information for as long as needed to provide the Customer with the Service. If the Customer wishes to cancel the account or requests that the Company no longer uses the information to provide the Services, contact the Company at success@eva.guru. The company will retain only the information necessary to comply with the legal obligations, resolve disputes, and enforce the agreements.

International Users. The Service is controlled, operated, and administered by the Company from the offices within the USA. If the Customer accesses the Service from outside the USA, the Customer is responsible for compliance with all local laws. Customer agrees that they will not use the content accessed through the Website in any country or in any manner prohibited by any applicable laws, restrictions, or regulations.

Electronic Communications. When the Customer uses the Service or sends emails, text messages, and other communications from your desktop or mobile device to us, the Customer is communicating with the Company electronically. You consent to receive communications from the Company. The company will communicate with the Customer in various ways, such as by email, text, or posting notices and messages on this Website. Customer agrees that all agreements, notices, disclosures, and other communications that Company provides to the Customer electronically satisfy any legal requirement that such communications are in writing.

10. 3PL – warehousing

In case you are a 3PL – warehousing customer the following Terms and Conditions are applicable.