Last updated on September 22, 2018
Please review the Arbitration section below carefully, as it contains an arbitration provision and class action waiver, which requires User to resolve disputes with Everee through final, binding arbitration on an individual basis. By entering into this Agreement, User is acknowledging that User has read and that User understands the terms of this Agreement and that User agrees to be bound by the arbitration provision and class action waiver.
Your Use of the Service
You may not provide any Everee Content, or use the Service in any way that violates any laws, infringes on anyone’s rights, is offensive, or interferes with the Service or any Service feature. Except as expressly provided above, you may not otherwise copy, display, download, distribute, modify, reproduce, republish or retransmit any Everee Content or any portion of the Everee Content in any electronic medium or in hard copy, or create any derivative work based on such Everee Content, without our express written permission.
All trademarks, logos and service marks (“Marks”) displayed on the Service are our property or the property of third parties. You are not permitted to use these Marks without the Marks’ owner’s prior written permission.
We reserve the right to (i) modify the Everee Content or to (ii) modify or suspend the Service with cause with or without notice to you. You agree that we will not be liable to you or to any third party for any modification of the Everee Content or any modification or suspension of the Service.
All information, ideas, suggestions or other communications you submit or provide to us will be non-confidential and non-proprietary (“Feedback”). Accordingly, do not submit or provide us with any feedback you consider confidential or proprietary. Unless you and Everee agree otherwise in a written agreement, we will be entitled to use, disclose or distribute any Feedback for any purpose whatsoever (including commercial purposes) without any obligation to you (monetary or otherwise).
Service Fees and Charges
In order to secure Service, User must be enrolled in one of the Service Plans each of which is governed by these Terms. User accepts these Terms and features which coincide with User’s Service Plan selection (as defined at www.everee.com/pricing) as noted by buying, accessing, or using the Services. By taking any of the aforementioned actions, User agrees to be bound by the Terms as of the time that such action occurs. If User chooses to subscribe to one or more Add-On services, then User agrees to be bound by these Terms and Add-On features (each defined at www.everee.com/pricing). Everee’s provision of any Add-On is contingent upon User being actively enrolled in a Service Plan.
User agrees to pay the fees for the Services in accordance with the applicable fee schedules listed at www.everee.com/pricing, and User authorizes Everee to debit User’s designated bank account, as specified by User through the Software Platform for all fees as they become payable. Fees for the Services are based on the calendar month in which User is enrolled in any Service Plan or Add-On (for example, if User is enrolled in a Service Plan or Add-On for a given calendar month, User would be charged for such month even if User does not use any Service Plan or Add-On feature in such month), and such fees are applied in full for a given calendar month, regardless of whether User is only enrolled in the Service Plan or Add-On for a portion of such month. Fees for the Services will be billed to User and debited from User’s Bank Account on a monthly calendar basis, in arrears. Notwithstanding the foregoing, Everee may invoice User for any applicable, outstanding fees, and User shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check, or any other payment method Everee may deem acceptable in its sole discretion. All fees are non-refundable. User agrees to reimburse Everee for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose.
Everee reserves the right to change the fees for its Service Plans or Add-Ons from time to time. User will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to User, User may cancel the Services prior to the time when such fee increase or change to this Agreement takes effect. User’s continued use of the Services beyond the cancellation window constitutes User’s agreement to those changes. If Everee is unable to collect fees due or perform any function on any Service Plan (for example debit money from the User’s bank account to process payroll) because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
User Obligations and Responsibilities Relating to the Service
User will designate and authorize one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Service (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Service by entering a confidential user ID and Password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to provide or input information and access, review, modify, and/or provide approvals on User’s behalf.
Any actions taken under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that Everee reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs Everee to take on its behalf.
In addition, User is solely responsible for (i) following instructions that Everee provides to User with respect to the Service, whether such instructions are provided via the Software Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Service, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.
User will, and will cause authorized users of User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify Everee. Everee reserves the right to prevent access to the Services if Everee has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.
User is responsible for timely providing Everee with the information required for Everee to perform the Services. User may furnish such information directly to Everee or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to Everee that for any information that User shares with Everee, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to Everee, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Everee, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Everee.
In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Software Platform by Everee (or otherwise made available to User by Everee) for User’s review, and User or its Account Administrators or Authorized Representatives must notify Everee of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Everee.
User, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Everee of any third-party notices that User may receive which could affect Everee’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Everee in connection with the Service, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services.
User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to Everee by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Software Platform or, will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
USER ACKNOWLEDGES AND AGREES THAT EVEREE IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER CONTENT OR DATA INITIATED BY ANY USER ACTION AND THAT THE USER’S OF THE SERVICE ARE RESPONSIBLE FOR THE DATA AND USE THE SERVICE AT USER’S OWN RISK.
User gives Everee permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Service. Everee may ask for User’s name, address, date of birth, social security number, phone number, and other information that will allow Everee to identify User. Everee may also ask to see User’s driver’s license or other identifying documents. User consents to and authorizes Everee to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including but not limited to the Internal Revenue Service and any applicable state taxing authorities. We may, at our discretion, decline to offer the Services or use of any particular feature for any reason, including in the event that the Services enrollment process is not satisfactorily completed, we are unable to verify satisfactory credit of User’s business, the User doesn’t meet eligibility requirements, and/or for other lawful business reasons.
By providing User’s mobile phone number(s) to Everee, User agrees that we may send Short Message Service (“SMS”) or Multimedia Messaging Service (“MMS”) messages as required to perform functions related to certain features related to a Service Plan, messages about activity in User’s account, messages about service updates, or notifications designed to enhance the experience of the Service. Standard message and data rates may apply. Everee will not send User autodialed marketing SMS or MMS messages unless User expressly agrees in writing to receive such messages. If user would like to opt out of receiving SMS or MMS messages, User should contact us at firstname.lastname@example.org.
User agrees not to take any of the following actions:
- Post, upload, publish, submit, share, distribute, or transmit any User Content that: (i) User lacks the authority to post, upload, publish, submit, share, distribute, or transmit; (ii) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (iii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iv) is fraudulent, false, misleading, or deceptive; (v) is defamatory, indecent, obscene, pornographic, vulgar, or offensive; (vi) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (viii) promotes illegal or harmful activities or substances; or (ix) contains software viruses, worms, defects, Trojans, adware, spyware, malware, or other similar computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware device;
- Use the Services other than as authorized in this Agreement;
- Resell, sublicense, timeshare, or otherwise share the Services with any third party;
- Display, mirror, or frame (i) the Site, or the layout or design of any page on the Site or form contained on a page; (ii) the Platform; (iii) the Services; or (iv) Everee Content or any individual element within the Site, Platform, or Services, including Everee’s name and any Everee trademark, logo, or other proprietary information, in each case, without Everee’s express prior written consent;
- Access, tamper with, or use non-public areas of the Platform, Services, Everee’s computer systems, or the technical delivery systems of Everee’s providers;
- Interfere or attempt to interfere with the proper working of the Platform or the Services (including but not limited to any application, function, or use of the Services) or any activities conducted on the Services;
- Take any action that imposes or may impose (as determined by Everee in our sole discretion) an unreasonable or disproportionately large load on Everee’s (or Partners’) infrastructure;
- Use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site;
- Harvest or scrape any Content from the Platform or Services;
- Attempt to probe, scan, or test the vulnerability of any Everee system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Everee or any of Everee’s providers or any other third party (including another User) to protect the Platform, Services, or Content;
- Attempt to access or search the Platform, Services, or Content or download Content from the Platform or Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like), other than the software and/or search agents provided by Everee or other available third-party web browsers;
- Access the Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation through the Platform or Services;
- Use any meta tags or other hidden text or metadata utilizing an Everee trademark, logo, URL, or product name without Everee’s express written consent;
- Use the Platform, Services, or Content, or any portion thereof, (i) for any purpose other than User’s internal business purposes, or (ii) for the benefit of any third party or in any manner not permitted by this Agreement;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Platform, Services, or Content to send altered, deceptive, or false source-identifying information;
- Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, or underlying ideas, or algorithms of any of the software used to provide the Platform, Services, or Content;
- Modify, translate, or otherwise create derivative works of any part of the Platform, Services, or Content other than User’s own User Content;
- Interfere with, or attempt to interfere with, the access of any User, host, or network, or use any device, software, or routine that is intended to damage, surreptitiously intercept, or expropriate any system, data, or communication, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Platform or Services;
- Collect from or store on the Platform or Services any personally identifiable information or protected health information of other Users without their express permission;
- Impersonate or misrepresent User’s affiliation with any person or entity;
- Engage in any fraudulent, deceptive, or illegal practices or activities, or use the Services to directly or indirectly support any such practices or activities;
- Violate any applicable law, rule, or regulation, or the National Automated Clearing House Association Operating Rules, as they may be amended from time to time (as amended, the “NACHA Rules”); or
- Encourage, assist, or enable any other individual to do any of the foregoing.
Term, Termination, and Suspension
The Services and this Agreement will continue in force until they are terminated by either party. User may terminate the Services and this Agreement through User’s Account. Everee may terminate the Services and this Agreement by giving User at least thirty (30) days’ prior written notice. In addition to Everee’s foregoing termination right, Everee may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Service; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to User, in the event that: (i) Everee has any reason to suspect or believe that User may be in violation of this Agreement; (ii) Everee determines that User’s actions are likely to cause legal liability for or material negative impact to Everee; (iii) Everee believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) Everee has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within five (15) days of Everee providing User with notice of the non-payment; (v) User files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against User; or (vi) Everee becomes aware of any circumstance changing eligibility for any particular feature. Furthermore, while Everee strives to support a multitude of business and organization types, in certain unique situations, if Everee cannot support the payroll-related filings for User’s business or organization type, Everee may immediately terminate the Services and this Agreement upon written notice to User.
The termination of any of the Services or this Agreement will not affect User’s or Everee’s rights with respect to transactions which occurred before termination. Everee will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Everee’s termination of this Agreement or Services.
Upon termination of any of the Service(s) and/or termination of this Agreement, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that Everee will generally continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While User has Limited Access Rights, User must use reasonable efforts to secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. Everee may deny the Limited Access Rights to User, or Everee may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that User may have at any time breached Prohibited Activity as noted in this Agreement.
Everee provides an electronic signature service as part of the Software Platform, which allows parties to sign documents electronically. Each time that User uses the electronic signature service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the electronic signing service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many Users prefer the convenience of electronic signatures User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform us of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the electronic signature service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and Everee has no responsibility or liability with respect to such matter.
Everee has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Everee makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
Everee makes no representation or warranties about the Service’s uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled maintenance or emergency maintenance may be conducted and during such maintenance periods the Service may not be accessible with or without notice to the User.
Everee is not responsible or liable for any delays or failures in performance from any cause beyond our control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of User.
The Service relies on third-party technology and services, such as application programming interfaces, for Third-Party Services and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Service.
Third Party Links
The Service may contain links to websites that are owned and/or operated by third parties. Such websites are not under our control. We provide these links only as a convenience and we do not review, approve, monitor, endorse, warrant, or make any representations with respect to such websites. We are not responsible for such websites’ content or for any link(s) they may contain.
EVEREE DOES NOT MAKE ANY WARRANTIES OR PROMISES ABOUT THE SERVICE OR EVEREE CONTENT. FOR EXAMPLE, INFORMATION ON THIS SERVICE MAY NOT BE CURRENT, OR COMPLETE WHEN YOU VISIT THE SERVICE AND IT MAY CONTAIN ERRORS AND INACCURACIES. ADDITIONALLY, WE DO NOT MAKE ANY COMMITMENTS OF THE SERVICE’S FUNCTIONALITY, AVAILABLITY, RELIABLITY OR ALBITY TO MEET YOUR NEEDS. EVEREE PROVIDES THE SERVICE AND EVEREE CONTENT “AS IS” AND FOR YOUR USE AT YOUR OWN RISK. SOME JURISDICTIONS PROVIDE CERATIN WARRANTIES, SUCH AS NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT WE ARE PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS IMPLIED, OR STATUTORY, INCLUDING ALL THE WARRANTIES LISTED ABOVE, AND ANY WARRANTIES OF TITLE, ACCURACY, AND QUIET ENJOYMENT
You agree to indemnify and hold Everee, its affiliates, officers, employees, agents, partners and licensors (collectively, the “Everee Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your Content or (b) your violation of any applicable laws, rules or regulations. We reserve the right, at its own cost, to assume the exclusive defense and control of any matter requiring indemnification by you, in which event you will fully cooperate with Everee in asserting any available defenses. You agree that the provisions in this section will survive your access or use of the Service.
Limitation of Liability
International Website Visitors
The Service can be accessed from countries around the world and may contain references to products and services that are not available in your country. These references do not imply that Everee intends to provide any product or service offerings in your country. We make no representations that the Service, the Everee Content and any of our offerings are or will be appropriate or available for use in foreign countries. Those who access or use Service or the Everee Content from other jurisdictions do so at their own volition and are responsible for compliance with all applicable laws.
Governing Law; Venue
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either User or Everee has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between User and Everee, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in San Francisco, California or any other location that is mutually agreed upon by User and Everee. A single arbitrator will be mutually selected by Everee and User and shall be (i) a practicing attorney licensed to practice law in Utah or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Everee and User cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and Everee. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Everee may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of Salt Lake City, Utah, for any monetary amounts that User owes to Everee (each, an “Action”). User hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Everee in such courts.
User and Everee agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. USER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND EVEREE ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
This Agreement constitutes the entire agreement between Everee and User regarding the Service and Content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement and the remaining terms will be valid and enforceable. User may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Any attempt by User to assign or transfer this Agreement, without such consent, will be null. We may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by us under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; (ii) by posting to the Website, or (iii) by posting to the Software Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Our failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Everee. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.