Evolution Digital Terms of Service Agreement
Last updated March 16, 2020
The Services defined herein are provided by Evolution Digital L.L.C. This document may refer to the service provider as “Evolution,” “we,” “us,” or “our.”
These are the rules and restrictions that govern your use of our website(s), products, services, mobile applications, and other software (collectively, the “Services”). Please read these Terms carefully before using the Services, because they affect your legal rights and obligations (e.g., requiring arbitration and no class action relief and limiting our liability). You acknowledge and agree that, except for physical Evolution products that you may have purchased such as routers, the Services are licensed, not sold, to you.
PLEASE READ THIS MASTER TERMS OF SERVICE AGREEMENT (“TOS AGREEMENT”) CAREFULLY. BY ACCESSING OR USING OUR MOBILE APPLICATIONS, PRODUCTS, SERVICES, WEBSITES (COLLECTIVELY, “THE SERVICES”) ITS AFFILIATES OR AGENTS WITH LINKS TO THIS TOS AGREEMENT IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA EVOLUTION DEVICES AND THE APPLICATION (EACH A “SERVICE” AND COLLECTIVELY THE “SERVICES”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE SITE OR DOWNLOADING EVOLUTION’S MOBILE APPLICATION (THE “APPLICATION”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS TOS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH EVOLUTION, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TOS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TOS AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, THAT VISITED EVOLUTION SERVICES OR THAT YOU IDENTIFIED AS THE USER WHEN YOU REGISTERED ON OUR SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE TOS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
PLEASE BE AWARE THAT THIS TOS AGREEMENT INCLUDES PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT INCLUDES AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
THE TOS AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE EVOLUTION DEVICES OR THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS TOS AGREEMENT.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY US AT ANY TIME.
Evolution may also require you to consent to material changes in the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such changes.
1. Use of the Company Properties
The Software, Services, Site and the information, data, text, sound, photographs, graphics, video, and/or other materials available on the Site and in the Application and the Services (collectively, the “Company Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Evolution grants you a limited license to reproduce portions of the Company Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Evolution in a separate agreement, your right to use any Company Properties is subject to this Agreement.
a. Application License
Subject to your compliance with the Agreement, Evolution grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on mobile devices that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
b. Evolution Software
Subject to these Terms, Evolution grants you a limited, non-exclusive and non-transferable license to download, install, and use Evolution’s mobile applications and its other software in connection with the Services for your personal, non-commercial use on a single device owned or otherwise controlled by you. You acknowledge and agree that Evolution’s mobile applications and its other software are provided under license, and not sold, to you. You do not acquire any ownership interest in any applications or software under these Terms, or any other rights thereto other than to use such applications and software in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. Evolution reserves and shall retain its entire right, title, and interest in and to its applications and software, including all IP Rights therein, except as expressly granted to you in these Terms.
You may access and display Material and any other content displayed on the Service only in connection with your non-commercial, personal use on personal devices (e.g., computer, tablet or mobile phone). The Material, Marks, and all other content on the Services may not otherwise be copied, reproduced, republished, uploaded, posted, transmitted, distributed, or used in any way unless specifically authorized by Evolution. Any authorization to copy Material granted by us in any part of the Services for any reason is subject to your keeping intact all copyright and other proprietary notices. Using any Material or Marks on any other website, app or networked computer environment is prohibited. Also, modifying, translating, adapting, or otherwise creating derivative works and improvements, decompiling, decoding, reverse engineering, disassembling, or otherwise reducing the code used in any software in connection with the Services into a readable form in order to examine the source code or construction of such software and/or to copy or create other products based (in whole or in part) on such software, is prohibited.
c. Updates
Evolution may from time to time develop patches, bug fixes, updates, upgrades and other modifications to the performance of the Services, the Application or the Software involving basic connectivity, setup, and over the air updates (“Updates”) for which it will not charge Registered Users any additional fee. By using the Services, Application or the Software, you hereby consent to the automatic downloading and installation of these Updates at no additional cost to you, which may be automatically downloaded and installed into your mobile device and Evolution Devices, as applicable, without providing any additional notice or receiving any additional consent.
If you do not want such Updates, your sole remedy (i) for Evolution Application Updates is to turn off the auto-update functionality in your mobile device settings or delete the Evolution Application from your mobile device. If you later undo any of the foregoing (e.g. by turning on the auto-update functionality on your mobile device), you understand that the automatic download and installation of Updates will start again, and you consent to such automatic Updates. To the extent that any Updates are not automatically installed, you acknowledge that you may be required to install Updates to continue use of, or access to the full functionality of, the Services, Application, and Evolution Devices and you agree to promptly install such Updates.
If any Update incorporates new features or functionality that require Registered Users to pay an additional amount to use or access such feature or functionality (a “Premium Update”), Evolution will notify you in advance and offer you the opportunity to accept or decline such Premium Update.
d. Third-party materials
As a part of the Company Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Evolution to monitor such materials and that you access these materials at your own risk.
e. Forums
THE MATERIALS, INFORMATION AND OPINIONS INCLUDED AND/OR EXPRESSED IN OR ON USER FORUMS, BULLETIN BOARDS, COMMENT SECTIONS, COMMUNITY PAGES, OR OTHER FORUMS ON THE SERVICES (“FORUMS”) ARE NOT NECESSARILY THOSE OF EVOLUTION, ITS SUBSIDIARIES, AFFILIATED COMPANIES, PARENTS, SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, AND PARTNERS (COLLECTIVELY, “EVOLUTION AFFILIATE”). THE EVOLUTION AFFILIATE DOES NOT UNDERTAKE TO MONITOR OR REVIEW FORUMS, AND THE CONTENT OF FORUMS IS NOT THE RESPONSIBILITY OF EVOLUTION AFFILIATE. THE EVOLUTION AFFILIATE MAY REMOVE OR MODIFY ANY CONTENT WITHOUT NOTICE OR LIABILITY AT ANY TIME IN THE EVOLUTION AFFILIATE’S SOLE DISCRETION. ANY USE OF THE FORUMS WILL BE AT YOUR OWN RISK AND WILL BE SUBJECT TO THE DISCLAIMERS AND LIMITATIONS ON LIABILITY SET OUT BELOW.
2. Agreed Usage and Limitations
a. Our Use of Content
Evolution will consider anything you provide to us and/or contribute to the Services as available for our use free of any obligations to you (including any payment), except where Invited Submissions are expressly governed by Additional Terms appearing elsewhere on the Services, in which event those Additional Terms will determine how we will treat your Invited Submissions. Regardless of any industry custom or practice, we will not pay you for the use of any content that you submit to the Services.
b. User Content License
Reviews, responses, profile entries, posts, or questions may not be able to be deleted once uploaded. For some of our Services’ features, other users may be able to request email notifications of your new public content or publish their own comments to your comments. We may use this public content to develop aggregate ratings, personalize site views, market products, or identify or feature popular users. By posting or uploading any content to the Services (including posts, responses) and/or providing any communication or material to Evolution (collectively, “User Content”), you automatically and irrevocably:
(1) Grant and assign to Evolution a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to any and all rights in the User Content including without limitation copyright, together with all consents (if any) necessary to enable its reproduction, distribution, modification, publishing, and/or other exploitation by Evolution and/or by any person authorized by Evolution, by any means and in all media now known or hereafter devised, without payment or other reference to you or any other person, and to advertise and promote such exploitation, for the full period of all such rights (together with any extensions and renewals) and insofar as possible in perpetuity;
(2) Waive all moral rights in the User Content which may be available to you in any part of the world and confirm that no such rights have been asserted;
(3) Appoint Evolution as your agent with full power to enter into any document and/or do any act Evolution may consider appropriate to confirm the grant and assignment, consent and waiver set out above;
(4) Warrant that you have the rights to and are the owner of the User Content and entitled to enter into these Terms;
(5) Confirm that no such User Content will be subject to any obligation, of confidence or otherwise, to you or any other person, and that Evolution shall not be liable for any use or disclosure of such User Content.
c. Restrictions on Use
During your use of the Services, you may create connections between our hardware devices, third-party hardware devices, our Services, and/or third-party services. You agree that you will not connect to the Services any hardware devices or third-party services in a manner that could be dangerous to any person(s), or which could cause damage to or loss of any property.
Your use of the Services is subject to the following additional restrictions. You may not use the Services or interact with the Services in a manner that:
(1) Infringes or violates the intellectual property rights or any other rights of anyone else;
(2) Violates any law or regulation;
(3) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(4) Jeopardizes the security of your account or anyone else’s;
(5) Attempts, in any manner, to obtain the password, account, or other security information from any other user;
(6) Violates the security of any computer network, or cracks any passwords or security encryption codes or otherwise incorporates any disabling code designed to permit improper use, access, deletion or modification of software or hardware programs or systems or improperly to disable, deactivate, damage or shut down such programs or systems;
(7) Sends, creates, or replies to so called “mailbombs” (i.e., emailing copies of a single message to many users, or sending large or multiple files or messages to a single user with malicious intent) or engages in “spamming” (i.e., unsolicited emailing for business or other purposes);
(8) “Crawls,” “scrapes,” or “spiders” any page or portion of the Services (through use of manual or automated means);
(9) Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
(10) Copies or stores any significant portion of the content;
(11) Decompiles, reverse engineers, or otherwise attempts to obtain the source code of the Services; or
(12) Undertake any other activity which may adversely affect the operation or enjoyment of the Services by any other person, including placing malware on the Services.
d. Third-Party Services
You accept that Evolution is not responsible for the risks you take associated with links or connections to third-party applications or services. You understand that such third-party services may or may not carry their own terms, conditions, privacy policies or other policies that may or may not be related to the Services. We encourage you to be aware of such agreements when you connect third-party services to the Services. We cannot and do not have control over, nor do we assume any responsibility or risk for content, accuracy, practices, opinions, or policies of any third-party websites, applications, or services that you may be exposed to when you interact with the Services. Your interactions with third-party organizations and/or individuals found on or through the Services are solely between you and such organizations and/or individuals. You agree that we shall not be responsible for any liability for any loss or damage associated with any such interactions.
e. Termination
You are free to stop using the Services at any time. You understand and agree that we may or may not delete your User Content if you stop using the Services. You understand and agree that we may retain copies of such User Content indefinitely. If we elect to terminate your account, we will try to provide advance notice to you prior to termination so that you are able to retrieve any important User Content stored in your account. You understand and agree that we may provide no advanced notice for any reason, but usually because it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Evolution.
f. Registration
In order to access certain features of the Company Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account through the Application (“Account”) by either providing information directly to Evolution or to a third-party service operator/provider.
In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Company Properties by minors. You may not share your Account with anyone, and you agree to (1) notify your service provider immediately of any unauthorized use of your Account or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Evolution has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Evolution has the right to suspend or terminate your Account and refuse any and all current or future use of the Company Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Evolution reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party’s rights. You agree not to create an Account or use the Company Properties if you have been previously removed by Evolution, or if you have been previously banned from any of the Company Properties
g. No Critical Uses of the Services
The Company Properties are intended to be accessed and used for non-time-critical information and control of Evolution Devices and/or products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. Access to the Company Properties is subject to sporadic interruptions and failures for a variety of reasons beyond Evolution’s control, including service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that, to the fullest extent possible by law, Evolution is not responsible for any damages allegedly caused by the failure or delay of access to the Company Properties.
The Company Properties and the Evolution Devices are not designed or warranted for use in applications or environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, life support machines, surgically implanted devices, weapons systems, or other applications, devices, or systems in which the failure of the Company Properties or the Evolution Devices, or any part thereof, could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Notwithstanding any other provision of this Agreement, you may not use or permit any third party to use the Company Properties or the Evolution Devices, or any part thereof, in connection with any High Risk Activity. To the fullest extent possible by law, you assume all risk of such uses, and if you or any third party you permit, use of the Company Properties or the Evolution Devices, or any part thereof, in connection with High Risk Activities, you agree to indemnify, defend, and hold the Evolution Entities (as defined below) harmless from all claims, expenses, and liability arising as a result of such use. This provision does not require you to indemnify any Evolution Entity for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promises, misrepresentations, or concealment, suppression or omission of any material fact in connection with the Company Properties or the Evolution Devices. You agree that the provisions in this section will survive any termination of your Account, the Agreement, or your access to the Company Properties.
The Company Properties are intended to be accessed and used for non-time-critical information and control of Evolution Devices and/or products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. Access to the Company Properties is subject to sporadic interruptions and failures for a variety of reasons beyond Evolution’s control, including service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that, to the fullest extent possible by law, Evolution is not responsible for any damages allegedly caused by the failure or delay of access to the Company Properties.
h. Reliability of notifications
You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR EVOLUTION DEVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. The information provided by Evolution on what to do in an emergency is based on authoritative safety sources, but there is no way for Evolution to provide specific information relating to a situation in your home or elsewhere. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
i. Temporary Suspension
The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Evolution does not offer any specific uptime guarantee for the Services.
j. System Requirements
The Services will not be accessible without: (i) an Account; (ii) mobile clients, such as a supported phone or tablet that is running the Application (required for some functionality); (iii) always-on broadband Internet access in your home; and (iv) other system elements that may be specified by Evolution. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. In addition, you acknowledge that Evolution may activate Bluetooth on your smartphone or tablet, with or without prior notification, to facilitate proper operation of the Services and enable certain features when you use the Application to set up new Evolution Devices and manage Evolution Devices connected to the same Evolution Account.
k. Device Information
The Services provide you information (“Device Information”) regarding the Evolution Devices in your home and their connection with other products and services. All Device Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date.
l. Specifications, Pricing, Typographical Errors
We do our best to describe every product or service offered on the Services as accurately as possible. However, we are human, and therefore we do not warrant that product specifications, pricing, or other content on the Services is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, Evolution shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge. Additional Terms may apply. If a product you purchased from Evolution is not as described, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging.
m. User Conduct
You warrant, represent and agree that you will not use the Company Properties (or permit any third party to use the Company Properties) to (a) take any action or (b) make available any Content on or through the Company Properties that: (i) violates the rights of any third party including by infringing or misappropriating any third party intellectual property rights, rights of publicity or privacy, or other rights; (ii) violates any local, state, national, or international law, statute, ordinance or regulation; (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, embarrassing, hateful or otherwise inappropriate; (iv) constitutes unauthorized or unsolicited advertising, junk, or bulk e-mail; (v) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes, without Evolution’s prior written consent; (vi) impersonates any person or entity, including without limitation any employee or representative of Evolution, claims a false affiliation, accesses any other Account without permission, or falsifies your age or date of birth; (vii) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; (viii) jeopardizes the security of your Evolution Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (ix) attempts, in any manner, to obtain the password, account, or other information about any other User or third party without consent; (x) violates the security of any computer network, or cracks any passwords or security encryption codes; (xi) interferes with security-related features of the Services, including by disabling or circumventing features that prevent or limit use or copying of any content; (xii) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Company Properties, or any processes that otherwise interfere with the proper working of the Company Properties (including by placing an unreasonable load on the Services’ infrastructure); (xiii) copies or stores any portion of the Content made available on or in any of the Company Properties; (xiv) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Company Properties; or (xv) uses the Services to support or carry out emergency calls to any emergency services, such as public safety answering points; or (xvi) attempts to do any of the acts described in this section.
n. Interactions with Other Users
If you comment on any blogs or forums available on through the Company Properties, you are solely responsible for your interactions with other Users; provided, however, that Evolution reserves the right, but has no obligation, to intercede in any disputes. You agree that Evolution will not be responsible for any liabilities incurred as the result of such interactions. Evolution has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to any comments posted on Company Properties. You interact with other Users at your own risk. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE COMPANY PROPERTIES. YOU UNDERSTAND THAT EVOLUTION DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE COMPANY PROPERTIES.
o. Energy Savings and Other Benefits
Evolution does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Devices or Services or any feature of them. Actual energy savings and monetary benefits vary with factors beyond Evolution’s control or knowledge.
p. Applicable Laws
Data protection, privacy, and other laws where you live may impose certain responsibilities on you and your use of the Evolution Devices and Services. You agree that you (and not Evolution) are responsible for ensuring that you comply with any and all applicable laws when you use the Evolution Devices and Services.
q. Investigations
Evolution reserves the right to investigate suspected violations of these Terms, including without limitation, any violation arising from any submission, posting or emails you make or send to any Forum. Evolution may seek to gather information from the user who is suspected of violating these Terms and from any other user. Evolution may suspend any users whose conduct or postings are under investigation and may remove such material from its servers as it deems appropriate and without notice. If Evolution believes, in its sole discretion, that a violation of these Terms has occurred, it may edit or modify any submission, posting or emails, remove the material permanently, cancel postings, warn users, suspend users and passwords, terminate accounts, or take other corrective action it deems appropriate. Evolution will fully cooperate with any law enforcement authorities or court order requesting or directing Evolution to disclose the identity of anyone posting any emails, or publishing or otherwise making available any materials that are believed to violate these Terms.
3. Third Party Products and Service
a. General
The Services rely on or interoperate with certain third party products and services (“Third Party Products and/or Services”). These Third Party Products and/or Services are beyond Evolution’s control, but their operation may impact or be impacted by the use and reliability of the Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on the operators of these Third Party Products and/or Services, (ii) these Third Party Products and/or Services may not operate in a reliable manner 100% of the time, and they may impact the way that Services operate, and (iii) to the fullest extent possible by law, Evolution is not responsible for damages and losses due to the operation of these Third Party Products and/or Services. Use of any Third Party Products and/or Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third Party Products and/or Services.
The Site may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. Evolution provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors.
b. Third Party Service Providers used by Evolution
You acknowledge that Evolution uses third party service providers to enable some aspects of the Services.
c. Equipment, ISP and Carrier
You acknowledge that the availability of the Services is dependent on (i) your computer, mobile device, home wiring, and other related equipment (“Equipment”), (ii) your Internet service provider (“ISP”), and (iii) your mobile device carrier (“Carrier”). You acknowledge that you are responsible for all fees charged by your ISP and Carrier in connection with your use of the Services. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service, and other policies of your ISP and Carrier.
d. App Stores
You acknowledge and agree that the availability of the Application(s) is dependent on the third party websites from which you download the Application(s), e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that this Agreement is between you and Evolution and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Application(s) from it. You agree to comply with, and your license to use the Application(s) is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of this Agreement, the more restrictive or conflicting terms and conditions in this Agreement apply.
e. Release regarding Third Parties
You acknowledge and agree that Evolution makes no representation or warranty about the safety of any Third Party Product and/or Service, Third Party Site, Referred Vendor, Equipment, ISP or Carrier, and that Evolution is not responsible for the operation of the App Stores. Accordingly, to the fullest extent possible by law, Evolution hereby disclaims and you hereby discharge, waive and release Evolution for the use of any such products or services, or any personal injury, death, property damage (including without limitation, to your home), or other harm or losses arising from or relating to your use of such products or services. You should contact the third party vendor of the product or service with respect to any services provided by it.
4. Ownership
a. Company Properties
You agree that Evolution and its suppliers own all rights, title and interest in the Company Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site or the Company Properties.
b. Trademarks
The Services and materials incorporated by Evolution in the Services (“Material”) are protected by copyrights, patents, trade secrets or other proprietary rights (collectively, “IP Rights”). Some of the IP Rights as well as characters, logos, trade dress, symbols, emblems, designs, designations, slogans, color combinations, insignias or other images incorporated by Evolution in the Services are also protected as registered or unregistered trademarks, trade names, and/or service marks owned by Evolution or others (collectively “Marks”). Evolution respects the intellectual property rights of others and asks users of the Services to do the same.
c. Your Account
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Evolution.
d. Miscellaneous
You will be responsible for withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. You and Evolution agree that these Terms, in the form of this Agreement and the Privacy Policy incorporated herein are the complete set of understanding between both parties and that they supersede and cancel all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms; it being understood that the terms of express warranties accompanying the purchase of Evolution products are in addition to such Terms. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Evolution in any respect whatsoever. Except as expressly set forth in the section above regarding the Apple Application, you and Evolution agree there are no third-party beneficiaries intended under this Agreement. 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 these Terms shall otherwise remain in full force and effect and enforceable.
5. Term and termination
a. Term
These Terms will remain in effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of this Agreement. At any time, Evolution may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate this Agreement with respect to you, if Evolution in good faith believes that you have used the Services in violation of this Agreement, including any incorporated guidelines, terms or rules.
b. Effect of termination
Upon termination of this Agreement, your Account and your right to use the Company Properties will automatically terminate.
6. Indemnity
You agree that you will be responsible for your use of the Company Properties, and you agree, to the fullest extent possible by law, to defend, indemnify, and hold harmless Evolution, its licensors, and their officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Evolution Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Company Properties at any time; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. Evolution reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with Evolution’s defense of such claim. This provision does not require you to indemnify the Evolution Entities for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation, or concealment, suppression or omission of any material fact in connection with the Site, Application or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement, or your access to the Company Properties.
7. Warranty Disclaimer
a. THE WARRANTY FOR EVOLUTION DEVICE IS SET FORTH IN THE LIMITED WARRANTY THAT ACCOMPANIES THE DEVICE. THIS SECTION DOES NOT AFFECT IN ANY WAY OUR LIMITED WARRANTY.
b. THE COMPANY PROPERTIES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. EVOLUTION ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE COMPANY PROPERTIES, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. EVIKYTUIB ENTITIES DO NOT WARRANT THAT THE COMPANY PROPERTIES OR ANY PART THEREOF, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
c. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY PROPERTIES WILL CREATE ANY WARRANTY OR CONDITION REGARDING EVOLUTION ENTITIES, OR THE COMPANY PROPERTIES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE COMPANY PROPERTIES IS AT YOUR OWN DISCRETION AND RISK.
d. EVOLUTION MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
e. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
8. Limitation of Liability
a. IN NO EVENT WILL EVOLUTION ENTITIES BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT EVOLUTION ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING THE FOREGOING, EVOLUTION DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF AN EVOLUTION ENTITY OR FOR (B) ANY INJURY CAUSED BY AN EVOLUTION ENTITY’S FRAUD OR NEGLIGENCE.
b. TO THE FULLEST EXTENT POSSIBLE BY LAW, YOU AGREE THAT THE AGGREGATE LIABILITY OF EVOLUTION ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE COMPANY PROPERTIES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS (IF ANY) YOU HAVE PAID TO EVOLUTION OR EVOLUTION’s AUTHORIZED RESELLER FOR THE COMPANY PROPERTY AT ISSUE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF EVOLUTION FOR (A) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF AN EVOLUTION ENTITY , OR (B) ANY INJURY CAUSED BY AN EVOLUTION ENTITY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
c. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
d. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. Allocation of Risk
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU ACKNOWLEDGE AND AGREE THAT EVOLUTION HAS OFFERED THE COMPANY PROPERTIES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN; THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND EVOLUTION; AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND EVOLUTION.
10. Accessing and downloading the Application(s) from the Apple App Store
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
a. You acknowledge and agree that (i) the Agreement is concluded between you and Evolution only, and not Apple, and (ii) Evolution, not Apple, is solely responsible for the App Store Sourced Application and Content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
b. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
c. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you, and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Evolution and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Evolution.
d. You and Evolution acknowledge that, as between Evolution and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e. You and Evolution acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Evolution and Apple, Evolution, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
f. You and Evolution acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
g. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
11. Miscellaneous
a. Severability
In the event that any provision of the Agreement is held to be invalid or unenforceable, then: (a) such provision shall be of no force and effect and shall be severed from the Agreement; and (b) the remainder of the Agreement shall continue in full force and effect.
b. Compliance with laws
You agree to abide by all applicable laws in your use of the Site and Evolution Device, including export control laws and similar regulations governing the transfer of software and other technology outside of the United States or other jurisdictions.
Evolution’s mobile application and other software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Services as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
c. Assignment
You may not assign this Agreement without the prior written consent of Evolution, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. Evolution may assign this Agreement without restriction. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns.
d. Force majeure
You acknowledge and understand that if Evolution is unable to provide the Site or Evolution Device as a result of a force majeure event Evolution will not be in breach of this Agreement. A force majeure event means any event beyond the control of Evolution.
e. Waiver
The failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. Evolution’s waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of this Agreement.
f. Export
You may not use, export, import, or transfer Evolution Devices, or any services accessible via the Site, except as authorized by U.S. law, the laws of the jurisdiction in which you obtained access to the Site or are using Evolution Devices, and any other applicable laws. In particular, but without limitation, Evolution Devices and services accessible via the Site may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Evolution devices and services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
g. Contacts
The following Evolution entity is responsible for delivering the Services depending on where you are using the Services:
• The Americas: Evolution Digital L.L.C
Thus, if you have any questions, complaints, or claims with respect to the Services, you may contact us at the following addresses (as applicable):
Evolution Digital L.L.C.
7347 South Revere Parkway Building A Centennial CO. 80112, USA
Corporate Office Phone: 877-504-9626
Email: [email protected]