COMMERCIAL TERMS EFFECTIVE DATE: APRIL 29, 2015 - What's new These “Commercial Terms” apply to our commercial transactions with you, including your purchase of any paid service from us, your purchase of a product from the Evernote Market (“Market”) or the acquisition or redemption of any Evernote gift card, Upgrade Codes or Evernote Points (as those terms are defined below). We refer to any service for which we charge a fee, including Evernote Plus, Evernote Premium and Evernote Business, as a “Paid Service” and any product we sell in the Market as a “Product.” You should carefully read through these Commercial Terms to understand your rights and responsibilities, as these Commercial Terms constitute a contract between you and Evernote Corporation or its affiliate from which you are purchasing the Paid Service or Product, or acquiring or redeeming an Evernote Upgrade Codes or Evernote Points. By purchasing a Paid Service or Product, or obtaining any Evernote Upgrade Codes or Evernote Points, you agree to be legally bound by these Commercial Terms. (Please see our explanation of who you are contracting with in different circumstances in the section below entitled “Who Am I Contracting With?”.) We may update these Commercial Terms from time to time. The Commercial Terms published on our site at the time you purchase a new Paid Service or Product, or acquire or redeem any Evernote Upgrade Codes or Evernote Points, will apply to your transaction (a “Commercial Transaction”). Please be sure to review these Commercial Terms before you finalize any Commercial Transaction. If you do not agree to the changed Commercial Terms, you may cancel your Paid Service and/or elect not to enter into the Commercial Transaction. If you do not cancel the Paid Service(s) within thirty days after you have learned of the change, or you proceed with any Commercial Transaction, you will be legally bound by the updated Commercial Terms. PAYMENT OF FEES; TAXES When you elect to purchase a Paid Service or any Product from us or any third party reseller and enter a form of payment, you agree that: (i) you will fulfill your obligation to pay for the Paid Service or Product by the date on which payment is due; (ii) any payment information you provide is true and accurate; (iii) you are authorized to use the payment method you provide; (iv) we have permission to retain the payment information and method, including all submitted debit and credit card information, submitted by you and your issuing bank or the applicable payment network; and (v) we or our reseller (as applicable) are authorized to charge you for the Paid Service or Product using the established payment method and the information you provide that is stored in your account as of the applicable date for payment. Your assurances of payment and our rights to collect payment include any obligation you may have to pay any taxes or delivery charges described as being applicable to the Product you are buying. In addition, you agree that you will be responsible for any credit card chargeback fees as well as any reasonable collection costs we incur as a result of your failure to pay on a timely basis. You agree to pay the charges for the Paid Service or Product in the currency specified by Evernote (or any reseller or payment processor from which you may purchase the Paid Service or Product) when you enter into the Commercial Transaction, and you assume all risks associated with any changing value in the currency compared with other currencies. The specified charge for a Paid Service or Product may include certain taxes and delivery or similar charges applicable to your purchase. If any tax or charge applicable to a purchase is not charged by us, you acknowledge that you are solely responsible for paying the tax or other charge, such as any charge for a cash on delivery (“COD”) purchase, where COD is available. Our prices for a Paid Service or Product do not include any of the third-party fees you incur in connection with using a Paid Service including, without limitation, fees charged by your Internet access provider, any wireless carrier charges for cellular or data services and any other third party applications or services with which you may use the Paid Service or Product; you are responsible for selecting and managing these other services, and paying the fees for such services. CHANGES IN FEES We may change the price of any Paid Service or the cost of any Product from time to time, and add new fees and charges for certain features or to reflect a change in business or legal rules, but we will send advance notice of changes in recurring subscription fees by email to the address in your account information. Any increase in charges for the same Paid Service or Product would not apply until the expiration of your then current billing cycle, unless otherwise specifically provided in our notice to you, and would become effective no sooner than the next time you would be charged for that Paid Service or Product. If you do not agree to pay the new price or other applicable charges, you may elect not to renew the Paid Service or Product subscription before the price change goes into effect, which cancellation would be effective at the expiration of your then current billing cycle. See “Cancellation” below for information on how you must cancel a Paid Service or other Product subscription. AUTORENEWAL Evernote accepts certain debit and credit cards as well as other forms of cash payment (e.g., Paypal transfers) as payment methods (each, an “Accepted Payment Method”) for Paid Services or Products, subject to the procedures and rules contained in these Commercial Terms and any applicable contract with the Accepted Payment Method. Accepted Payment Methods may vary by country, by Product or Paid Service and may change from time to time. When you purchase with an Accepted Payment Method, the fees for your Paid Service or Product will be billed on or near the date of your purchase or, for Products that are not delivered or made available on the date of purchase, when your Product is shipped or becomes available to you, as described below. If you purchase a Paid Service or a subscription for a Product that renews automatically, such as monthly or annually, you agree that we may process your Accepted Payment Method on each monthly, annual or other renewal term (based on the applicable billing cycle), on or near the calendar day corresponding to the commencement of your Paid Service or Product subscription, as applicable. In addition, you agree that we have permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms we retain in the future) information regarding your purchase and your submitted payment information in order to process your purchase. If your Paid Service or Product subscription began on a day not contained in a subsequent month (e.g., your service began on January 30, and there is no February 30), Evernote will process your payment on or near the last day of such month. (This is what we mean by paying on an autorenewal basis.) See below for information describing what you must do to change your Accepted Payment Method. PAYING BY INVOICE Evernote may, in our sole discretion, agree to permit you to pay us for certain Paid Services or Products pursuant to invoices issued by Evernote. Unless otherwise expressly provided in our Separate Agreement with you, we will issue our invoice on or shortly after the date on which the Paid Service or Product is purchased (and on any monthly, annual or other renewal term as described under “Autorenewal,” above), and the charges are payable upon your receipt of the invoice. All payments of invoiced amounts must be made in the currency specified on the invoice by check, wire or other electronic transfer to a bank and account number designated by Evernote. Any invoice that remains unpaid thirty (30) days after the invoice date is considered delinquent. Any wire transfer fees or other similar fees incurred on account of the payment method selected by you are your responsibility and may not be deducted from the amount due Evernote. PAYING OUR RESELLER OR PAYMENT PROCESSOR Evernote may, in our sole discretion, enable you to purchase and/or pay for certain Paid Services or Products through an Evernote-authorized reseller or payment processing firm (including, for example, a telecommunications provider or a mobile app marketplace). Unless otherwise expressly provided in a Separate Agreement with you, your obligation for payment to, and relationship with, such reseller or payment processor is a contractual matter between you and such third-party; Evernote is not a party to, or responsible on account of, such contract. While we select our resellers and payment processors carefully and enter into detailed agreements imposing performance obligations (including confidentiality) on them, we cannot and do not guaranty their performance. We encourage you to provide any feedback regarding any reseller or payment processor with which you do business to us, as we value and use your input in determining whether to continue or end such relationships. If you have any concerns or problems with a reseller or payment processor, please contact our Customer Support team as promptly as you can. And, if you seek information about any party acting as an Evernote reseller or payment processor before you enter into any agreement with them, please feel free to contact our Customer Support team. UPGRADE CODES Evernote may from time to time make available, directly or through a third party, gift cards and coupons or activation codes that are redeemable for a specified Paid Service for a fixed period of time (individually, an “Upgrade Code” and collectively, “Upgrade Codes”). The period of time for which you have purchased the Paid Service using the Upgrade Code or Evernote Points, as described below, is the “Promotional Period”). An Upgrade Code has no cash value, is non-transferable (except where expressly permitted by Evernote for certain gift cards) and may specify an expiration date, after which the Upgrade Code shall be void. Evernote is under no obligation to accept an expired Upgrade Code. An Upgrade Code may be specifically limited for a certain level of Paid Service, in which event Evernote is under no obligation to accept such Upgrade Code for any other level of Paid Service, or other products or services. At the conclusion of the Promotional Period, you will be required to pay the then-applicable charges for the Paid Service in order to continue using such Paid Service. If you are already subscribed to a Paid Service when you elect to redeem an Upgrade Code, Evernote will credit your account with Evernote Points which, as described below, can be used to obtain a Paid Service for the Promotional Period or may be used for other eligible rewards, purchases or payments. Evernote has no obligation to you with respect to any third party product or service with which any Points or an Upgrade Code was provided. Unless you have a separate contract with Evernote permitting you to distribute Points or Upgrade Codes, you are prohibited from selling or otherwise distributing or transferring Points or Upgrade Codes. Evernote reserves the right to invalidate any Points or Upgrade Codes that have been improperly issued or distributed, and we do not owe you any compensation with respect to any Points or Upgrade Codes you obtained from a third party that was acting improperly. EVERNOTE POINTS Evernote may from time to time make available, directly or through a third party, Evernote Points. Evernote Points provide our users enhanced flexibility to customize their Evernote experience. Evernote Points may be applied as payment for all or part of the cost of a certain product, service and/or special feature or promotional item offered by Evernote and indicated as being available for purchase with Evernote Points (a “Points Purchase”). Evernote Points may also be used as tokens or credits in connection with an eligible promotional event or campaign, subject to the applicable terms therefor (a “Points Swap” and, together with a Points Purchase, the “Points Transactions”). The number of Evernote Points required to consummate Points Transactions shall be determined by Evernote, in our sole discretion, and may change from time to time, without advance notice. The terms and conditions for consummating any Points Transactions are set forth here and may be amended in connection with any particular items available for a Points Purchase or any Points Swap event. Evernote Points awarded to your account may only be redeemed for Points Transactions through your account, and Evernote Points associated with multiple accounts cannot be combined for any Points Transaction, even if those accounts belong to or are controlled by you. You may review the number of Evernote Points in your account by visiting the Evernote Points page under your Account Settings at the Evernote web site. If Evernote Points are issued to you in exchange for an Upgrade Code, the number of Evernote Points exchanged shall be equivalent in redemption value to the value of the Upgrade Code. (For example, if you have an Upgrade Code redeemable for twelve months of a Paid Service, you may receive in exchange a number of Evernote Points that you may elect to use to obtain twelve months of such Paid Service.) Please review our Knowledge Base article entitled “How do I earn and use Evernote Points?” for an explanation of the alternative ways you may earn and use Evernote Points. You may apply Evernote Points towards an Evernote Paid Service for which an Upgrade Code was intended or, in some cases, apply your Evernote Points toward one or more other valuable products, services or features. Evernote Points have no cash value, cannot be tendered for any cash amount, are non-transferable and may specify an expiration date, after which such Evernote Points are void (but they will not expire prior to the expiration of the Upgrade Code or other item for which they were exchanged). Evernote is under no obligation to accept or provide any compensation on account of any expired Evernote Points. If you elect to apply your Evernote Points towards the payment of fees for a Paid Service, you will be required to pay the then-applicable charges for the Paid Service at the conclusion of the Promotional Period in order to continue using the Paid Service. If you are paying for a Paid Service or other subscription at the time you request Evernote to apply Evernote Points for payment of the subscription fees, we will apply your Evernote Points in alternative ways, depending on your method of payment for the current subscription. Please review our Knowledge Base article entitled “How do I earn and use Evernote Points?” for an explanation of the alternative ways Evernote Points are redeemed for an existing Paid Service. Depending upon the item purchased with Evernote Points, you may be required to pay separately for any sales tax, VAT, GST or similar taxes and other charges incurred in connection with such purchase. Rewards obtained using Evernote Points are not transferable. If any items you obtain in a Points Purchase are returned to Evernote and a refund is available according to the terms of sale or applicable law, the Evernote Points used as payment for that Points Purchase are returned to your account, subject to any expiration or other applicable terms and conditions associated with the Points Purchase. In no event shall Evernote provide you with any monetary refund for the portion of a purchase paid with Evernote Points. When Evernote Points associated with your account are used in a Points Transaction, you will be deemed by Evernote to have caused that Points Transaction, inasmuch as the username and password for that account are required in order to consummate the Points Transaction. Accordingly, Evernote will not reinstate any Evernote Points once they have been applied, and Evernote shall not have any liability for such use, even where you claim such use was unauthorized. Evernote does not authorize the use of Evernote Points to obtain any product, service or other items from any party other than Evernote, and Evernote shall not provide any third party any compensation or items of value on account of any Evernote Points you may provide to such third party. Evernote reserves the right, from time to time, to impose limitations on the use of Evernote Points including, without limitation, the maximum number of Evernote Points used in Points Transactions in any period of time and the maximum number of Evernote Points that may be accumulated in your Evernote Service account. Evernote reserves the right to carry out the following actions without notice if we determine that any Evernote Points used in a Points Transaction were fraudulently obtained or invalid: (i) setoff the value of all goods, products or services obtained in such Points Transaction against any amounts payable by Evernote to you; (ii) bill to a credit card account registered to your account or invoice you the value of all goods, products or services obtained in such Points Transaction; and/or (iii) pursue any other method of recovery permissible under law. If you receive an invoice for payment from Evernote on account of the use of any invalid Evernote Points, you agree to pay the required amount promptly within 30 days of receiving such invoice. If your Evernote Service account is deactivated or closed, you shall lose all rights relating to the Evernote Points attributed to your account, and you forfeit and waive the right to demand any compensation from Evernote relating to such deactivation or closure. THE EVERNOTE MARKET The Evernote Market is a collection of curated Products available for purchase by registered users of the Evernote Service. We’ve worked to describe these Products in the Market as accurately as possible, but we realize that, on occasion, Product pictures or descriptions may not be perfect. Accordingly, Evernote cannot assure you that the Product images and descriptions are 100% accurate, complete, current or error-free. We will do our best to ensure that you are satisfied with the Product you purchase so, if you feel that a Product shown in the Market is not accurately described, and you want to obtain a refund or exchange, please contact our Customer Support team within 14 days of your receipt of the item for assistance; otherwise, you will be considered to have accepted the Product. When you order a Product, Evernote will confirm your order via email to the email address associated with your Evernote Service account. This does not mean that your order has been accepted or shipped, however. As part of our shipping procedures, we verify the availability of an item for you before we accept your order. If the item is no longer available, not permitted for sale in your area or if we determine that there were inaccuracies in our Product information, including incorrect pricing or availability information, we will cancel your order and notify you of such cancellation via email. We will not charge your Accepted Payment Method until after your order has entered the shipping process or, in the case of a Paid Service or digital Product, until we complete our process to enable you to access the purchased item. Any Product you purchase requiring delivery will ship as it becomes available. Evernote charges reasonable fees that are intended to cover the costs of delivering your purchase. While we try to ensure that only the most reliable delivery services are used, the actual delivery of your order can be impacted by many events beyond our control once your purchase leaves our facilities. We will generally provide you information so that you can track your package, and we will work with you to ensure a smooth delivery. We also work closely with carriers to make sure the Product you order arrives safely. If you believe a shipment may be delayed or you receive a Product and feel it is damaged or not operating properly, please contact our Customer Support team to report the problem immediately. Please be aware that all purchases are subject to Evernote’s Return Policy. Please note that Products are subject to the customs and export control laws of the United States and may be subject to customs laws and regulations of the country in which you reside. By purchasing a Product, you agree to abide by the customs and export control laws applicable to that Product, including but not limited to the U.S. Export Administration Act and the Arms Export Control Act, and you agree that you will not transfer a Product to a foreign national or foreign destination in violation of the law. Also, please note that not all Products are available in all geographic locations. CHANGES TO PAYMENT METHODS AND ACCOUNT INFORMATION You are responsible for ensuring that all of your account information, including your email address and all payment information (address, debit or credit card number and expiration date), is accurate and up to date at all times. You may change this information at any time. If you’re an Evernote Plus or Premium user, you may log in to your account through the Evernote website, access your “Account Summary” from the Settings page and make the changes. Evernote Business Customers may change payment information as described in the Evernote Business Agreement. If you are not the account holder but you control the means of payment for a Paid Service account and wish to make any change to the payment method, you must notify us by contacting Customer Support and demonstrating to our satisfaction your control of the payment method used for the Paid Service. If your credit card expires or the information is otherwise invalid, or you or another party controlling the payment method make changes to your billing account too close in time to when we charge for any Paid Service or Product subscription (so we cannot reasonably act on your changes prior to billing), we will probably not be aware of this, and we will bill the current charges to the card we had on record; the continuation of your Paid Service or Product subscription constitutes your authorization for us to do so, and you remain responsible for any uncollected amounts and any charges incurred by you or us as a result of billing to an invalid card. CANCELLATION OF A PAID SERVICE OR PRODUCT SUBSCRIPTION You may elect to cancel a Paid Service at any time. Any cancellation of a Paid Service will be effective as of the end of the then-current billing period, except (i) as described below for an upgrade in Paid Service, (ii) as provided in the Terms of Service and (iii) where we materially modify the Terms of Service, Privacy Policy, the Evernote Business Agreement or these Commercial Terms during a billing period, and such modification adversely affects you (a “Terms Modification”). In the event of a Terms Modification, you may cancel your subscription for the Paid Service prior to the end of the then current billing period if we receive notice from you no later than thirty days after the effectiveness of such Terms Modification. Your notice must be delivered according to the requirements in the Terms of Service (under “How Can I Send A Notice to Evernote?”) or, for Evernote Business, the requirements of the Evernote Business Agreement, and must identify your account and request cancellation of the specific Paid Service; the cancellation shall be effective upon our receipt of your notice and our determination that you are authorized to effect such cancellation, as detailed below. If you wish to upgrade your existing Paid Service subscription to a more expensive level of Paid Service, and if you purchased your current Paid Service directly from Evernote (and not from a reseller or payment processor), Evernote will permit you to cancel your existing Paid Service subscription prior to the end of the subscription term. In that event, Evernote will apply the pro-rated balance of your pre-paid subscription fees towards the initial subscription fee for the new Paid Service, provided that no refund will be provided for any amounts in excess of the initial subscription fee for the upgraded Paid Service. If you have purchased a Paid Service from a reseller or payment processor, you may be required to contact the reseller or payment processor to process your cancellation request, as Evernote may have no ability to process the cancellation for you. Please note that this is the case even where you are upgrading from one Paid Service to a new Paid Service. If you desire to cancel your subscription for the Evernote Paid service as of the end of the current billing period, you may do so by logging into your account through the Evernote website, accessing your “Account Summary” from the Settings page and choosing “Cancel Subscription.” An Evernote Business account is only terminable according to the terms of your Evernote Business agreement. If you are taking part in any trial period offer that enables you to use a Paid Service without charge, and that trial period converts into a Paid Service upon the expiration of the trial period, you must cancel the Paid Service prior to the end of the trial period in order to avoid incurring the charges for the Paid Service. If you are taking part in any trial period and you utilize a number of Evernote Business account seats exceeding the maximum permitted without charge during such trial period, you will be charged for such excess seats. If you are the authorized legal representative for a deceased or legally incapacitated individual or a legal entity that has been formally dissolved or otherwise ceased to be authorized to act for his, her, or its own account (without opportunity for revival), and you wish to cancel a current Paid Service subscription for such individual or entity, you must notify us according to the requirements in the Terms of Service (under “How Can I Send A Notice to Evernote?”), identify the account in question and request cancellation of the Paid Service. We will cancel the Paid Service subscription if you demonstrate to our satisfaction your legal authority to act and be legally responsible for such individual or entity and your ability to validate the details of the payment method used for such Paid Service. Your ability to cancel a subscription for any Product offered by a third party in the Market will be subject to the applicable terms for such Product. If any third party Product may be cancelled prior to the expiration of the subscription period, you will be required to follow the directions provided in order effect such a cancellation. We may cancel any Paid Service or Product subscription you have purchased if you fail to pay the applicable subscription fees and any applicable taxes in full and in a timely manner according to these Commercial Terms or any agreement with a third-party reseller or payment processor. A failure to pay occurs in any situation where Evernote has not received timely payment, including where any credit card issuer or payor bank refuses to transmit the funds that are then due, or the reseller or payment processor you have contracted with notifies us of your failure to pay. We may, in our discretion, elect not to cancel a Paid Service or Product subscription immediately for non-payment, in which case you will continue to be responsible for the fees due for the duration of the applicable subscription. In addition, if you fail to pay for a Paid Service, we may elect to suspend your rights to use that Paid Service or we may change the type of privileges you have to a non-paid version of the service (e.g., changing from Evernote Premium to Evernote Basic). We will endeavor to provide you notice promptly after any failure to make a payment to us in full and on time, but we are not obligated to do so. COSTS OF COLLECTION; CREDIT CARD CHARGEBACKS In addition to the published fees for a Paid Service or the price for a Product in the Market, you agree to pay any reasonable costs we incur to collect any unpaid or past due amounts, including reasonable attorneys' fees and other associated costs. Delinquent payments will bear interest at the rate of 1% per month or the highest rate permitted under applicable law, whichever is less, from the payment due date until paid in full. If you purchase a Paid Service or Product with a credit card and then subsequently request your credit card issuer to reverse that payment, Evernote is charged a fee that may be a significant multiple of the amount we initially received. Accordingly, in order to enable you to pay relatively minor fees with a credit card, you acknowledge and agree that we reserve the right to suspend your ability to add additional Content to your Evernote Service account until such time as you reimburse us the amount of the fee we were charged by the card issuer and/or return the Product. WHO AM I CONTRACTING WITH? As we describe in our Terms of Service, if you purchase a Paid Service or Product from us you will be entering into a contract with one of several Evernote affiliated companies, based upon your geographical location. Those provisions regarding contracting parties and governing law continue to apply to our contracts for the Evernote Service and if you acquire or redeem an Evernote gift card or Evernote Points (including any Points Transactions). However, with the launch of the Evernote Market, we need to inform you that any purchase from the Market of any Product other than a Paid Service will be deemed to be a purchase from Evernote Corporation, a corporation headquartered in California in the United States, unless the Evernote Market page where you complete your order informs you that you are purchasing from a third-party reseller. Please note that all of the provisions of the Terms of Service continue to apply to a contract to purchase Products or services in the Market. If you elect to pay a third-party reseller or payment processing firm for any Paid Service or Product, the contract regarding your payment will be with such third-party, but such third-party is not authorized to provide you with any contract terms or other assurances that affect Evernote’s obligations relating to our delivery of the Paid Service or Product; our obligations to you are governed by the Terms of Service, Privacy Policy these Commercial Terms and, with respect to Evernote Business, the Evernote Business Agreement.
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