Date Last Revised: January 7, 2017
Welcome to Evident! Evident ID, Inc. (“Evident”, “we”, “us”, or “our”) operates evidentid.com (the “Site”) and the Evident mobile application (the “App”) that allows our users (each user, “You”) to share information securely such that recipients can easily verify the authenticity of the information, as well as a number of related services enabled via the Site and App (collectively, the “Services”). The following terms and conditions (“Terms”) form a binding agreement between You and us regarding Your use of the Site, the App and the Services (collectively, the “Evident Properties”).
READ THESE TERMS CAREFULLY. ACCESSING THE SITE, DOWNLOADING THE APP, OR USING THE SERVICES IN ANY WAY, INDICATES THAT YOU HAVE BOTH READ AND AGREE TO BE BOUND THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO ALL OF THESE TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SITE, THE APP, OR THE SERVICES. YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATIONS IN ORDER TO ENTER INTO THESE TERMS, TO CREATE OTHER RECORDS AND TO THE ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS BETWEEN YOU AND EVIDENT WITH RESPECT TO THESE TERMS.
THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
EVIDENT MAY MAKE CHANGES TO THESE TERMS OR THE EVIDENT PROPERTIES AT ANY TIME. EVIDENT WILL POST NOTICE OF THE UPDATED TERMS AT WWW.EVIDENTID.COM. YOUR CONTINUED USE OF THE EVIDENT PROPERTIES AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS OR MODIFIED EVIDENT PROPERTIES. IF YOU OBJECT TO ANY SUCH MODIFICATIONS, YOUR SOLE RECOURSE SHALL BE TO CEASE USING THE EVIDENT PROPERTIES.
1. OUR SERVICES
a. Description. Our Services consist of secure platform, mobile and web interfaces that enable You to securely share Your information in a way that allows others (“Relying Parties”) to easily verify the authenticity of Your information. Relying Parties will request that You share Your information through the Services when You conduct a transaction with them (e.g., registering for access to their website).
b. Accounts. To use the Services, You must use our App or Site, register online, and set up an account (“Account”) with us. You can create the account by (i) providing Your email address and selecting a password or (ii) using a third-party login such as Google or Facebook (collectively, “Account Credentials”). You may not transfer or share Your Account Credentials with any third parties, and You are solely responsible for maintaining the confidentiality of Your Account Credentials. You acknowledge and agree that we rely on Account Credentials to know whether users using our Services are authorized to do so. You agree to be responsible for any act or omission of any users that access the Evident Properties with Your Account Credentials.
c. Use. You represent that You are (i) at least thirteen (13) years old (and if You are not yet eighteen (18) years old, You must have the permission of an adult to use the Services and agree to these Terms, and that adult must be a parent or legal guardian who is willing be responsible for Your use of the Services); (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Evident 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, as appropriate, use by minors, and You will accept full responsibility for any authorized or unauthorized use of the Evident Properties by minors.
d. Stored Data. We allow You to upload certain types of data about Yourself, including but not limited to Your contact information, educational history, professional qualifications and other information as prompted by the Services (collectively, “Stored Data”) during registration and regular use of the Services. You agree to (i) provide true, accurate, current, and complete Stored Data; and (ii) maintain and promptly update the Stored Data to keep it true, accurate, current, and complete. If You provide any information that is untrue, inaccurate, not current or incomplete, or Evident has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Evident has the right to suspend or terminate Your Account and refuse any and all current or future use of the Evident 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. Stored Data is stored using encryption. Still, Evident cannot and does not guarantee the security, completeness, or integrity of any Stored Data or that the Stored Data will not be corrupted or lost. You acknowledge that the Services limit the practical ability to modify certain Stored Data after it has been provided or verified. For example, if Your legal name has been verified by a state identification authority, You must change Your name first with the state before the change can be made using the Services. If You want to delete Your account, You may do so by logging into Your account.
e. Sharing Data. We allow Relying Parties using the Service to request that You share Your Stored Data with such Relying Parties. IF YOU ELECT TO SHARE YOUR STORED DATA WITH A RELYING PARTY, YOU CONSENT TO US PROVIDING SUCH RELYING PARTY WITH YOUR STORED DATA THROUGH OUR SERVICES AND YOU REAFFIRM THE ACCURACY AND CURRENCY OF THE SHARED DATA.
2. OUR APP
a. Availability. You acknowledge and agree that the availability of the App may be dependent on a third party service such as the Apple App Store or Google Play Store (“App Store”) and that Your use of the App is subject to the terms in the “App Stores” section. You acknowledge and agree You must have a mobile device that is compatible with the Service. We do not warrant that the App will be compatible with Your mobile device.
b. Updates. You acknowledge that we may from time to time issue updated versions of the App, and may automatically electronically update the version of the App that You are using on Your mobile device. You consent to such automatic updating on Your mobile device, and agree that these Terms will apply to all such updates.
c. Wireless Access. In order to use the App, You must have access to a wireless network, and You agree to pay all fees associated with such access.
a. Your Content. Evident does not claim ownership of any content, data, information, or other materials You post, upload to, or you personally otherwise make available on the Evident Properties, including Your Stored Data (collectively, “Your Content”). You grant us a non-exclusive, royalty-free, fully paid, fully sublicenseable, transferable, worldwide license, to reproduce digitally transmit and use Your Content for the purpose of providing You the Services. For avoidance of doubt, Your Content does not include Aggregated Statistics or Feedback (both as defined in herein).
b. Evident Properties. You agree that Evident and its licensors own all rights, title and interest in the Evident Properties, including all content, data, information, text, software, sound, photographs, graphics, video, messages, tags, and/or other materials accessible through the Evident Properties (“Evident Content”). For avoidance of doubt, the Evident Properties do not include Your Content and You maintain all rights to Your Content except as granted under these Terms.
“Evident” and “Evident ID” are trademarks that belongs to us. Other trademarks, names and logos on the Evident Properties are the property of their respective owners.
Unless otherwise specified in these Terms, all Evident Content, including the arrangement of them on the App and this Site are our sole property, Copyright © 2017 Evident ID, Inc. You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Evident Properties. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
c. Evident Properties License. In these Terms, we are granting You a limited, personal, non-exclusive and non-transferable license to (i) use and to display the Evident Content and (ii) ; Your right to use the Evident Content is conditioned on Your compliance with these Terms. You have no other rights in the Evident Properties or any Evident Content and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Site, the App or Evident Content in any manner. If You make copies of any of this Site or the App while engaging in Permitted Purposes then we ask that You retain all of our copyright and other proprietary notices as they appear on this Site or the App. If You breach any of these Terms the above license will terminate automatically and You must immediately destroy any downloaded or printed Evident Content (and any copies thereof).
d. App License. Subject to these Terms, we grant You a personal, limited, non-exclusive, revocable, non-sublicensable, and non-transferable license to download and install the App in object code on one or more computer(s) and/or mobile device(s) solely for Your own personal or internal business purposes. You may not: (i) modify, disassemble, decompile or reverse engineer the App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the App to any third-party or use the App to provide time sharing or similar services for any third-party; (iii) make any copies of the App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or (v) delete the copyright and other proprietary rights notices on the App.
The foregoing license grant is not a sale of the App or any copy thereof, and we and our third-party licensors or suppliers retain all right, title, and interest in and to the App (and any copy of the App). Standard carrier data charges may apply to Your use of the App.
e. Aggregated Statistics. We may collect and use information in an aggregate and anonymous manner about the use of the Services, and other information input into the Evident Properties by You or pertaining to You (collectively, “Service Information”), including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between You and us, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by us. You acknowledge that we will be compiling Aggregated Statistics based on Service Information, and You agree that we may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify You or Your Content.
4. GENERAL RULES OF USER CONDUCT
We invite You to use the Evident Properties for legitimate purposes (“Permitted Purposes”) and only Permitted Purposes. You are responsible for complying with these Terms when You use or access the Evident Properties. You agree not to, and represent and warrant that You will not:
a. Falsely claim an identity other than Your own identity, impersonate any person, or otherwise misrepresent Yourself;
b. Falsely claim or misrepresent any Stored Data, any of Your Content, or any other information about Yourself;
c. License, sell, rent, lease, reproduce, resell, transfer, assign, distribute, modify, host or otherwise commercially exploit the Evident Properties or any portion of the Evident Properties;
d. Reverse engineer, disassemble, decompile, or translate or jeopardize the correct functioning of the Evident Properties, or otherwise attempt to derive the source code of the software including the tools, methods, processes, and infrastructure) that enables or underlies the Evident Properties;
e. Upload or make available any of Your Content that violates the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
f. Violate or promote the violation of any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
g. Upload, distribute or print any content to the Evident Properties that is or may be harmful to minors;
h. Stalk, harass, or harm another individual;
i. Attempt to gain access to any portion of the Evident Properties to which You do not possess access rights including any other accounts, computer systems, or networks connected to the Evident Properties, whether through hacking or any other means;
j. Access the Evident Properties in any way that masks or attempts to mask the site or networked computer environment from which Your access originates;
k. Upload or transmit any form of virus, worm, Trojan horse, or other malicious code to the Evident Properties;
l. Interfere in any way with the proper functioning of the Evident Properties or interfere with or disrupt any servers or networks connected to the Evident Properties, or disobey any requirement procedures, policies or regulation of networks connected to the Evident Properties;
m. Institute, assist, or become involved in any type of attack, including, without limitation, distribution of a virus, denial of service attacks upon the Evident Properties, or other attempts to disrupt the Evident Properties or any other person’s use of the Evident Properties;
n. Attempt to probe, scan, or test the vulnerability of any Evident Property or any servers or networks connected to the Evident Properties, or breach any security or authentication measures;
o. Disrupt or interfere with the security of, or otherwise cause harm to, the Evident Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through the Evident Properties or any affiliated or linked sites;
p. Mirror or frame the Site or any content, place pop-up windows over its pages, or otherwise affect the display of its pages;
q. Use any automatic, electronic or manual process to harvest, mine, or extract information from the Evident Properties (including without limitation robots, spiders, or scripts)
You agree that the submission by You of any ideas, thoughts, criticism, suggested improvements or other feedback related to Evident, or the Evident Properties (collectively “Feedback”), is at Your own risk and that Evident has no obligation (including without limitation any obligation of confidentiality) with respect to such Feedback. You represent and warrant that You have all rights necessary to submit the Feedback. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
6. APP STORES
The following additional terms and conditions apply with respect to any App that we provide to You designed for use on an Apple iOS-powered mobile device (an “iOS App”):
a. You acknowledge that these Terms are between You and us only, and not with Apple, Inc. (“Apple”).
b. Your use of our iOS App must comply with Apple’s then-current App Store Terms of Service.
c. We, and not Apple, are solely responsible for our iOS App and the Services and Evident Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
d. You agree that we, and not Apple, are responsible for addressing any claims by You or any third-party relating to our iOS App or Your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
e. You agree that we, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or Your possession and use of our iOS App.
f. 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. You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., You must not be in violation of Your wireless data service terms of agreement when using the iOS App).
h. The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to Your license of our iOS App. Upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as they relate to Your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any App that we provide to You designed for use on an Android-powered mobile device (an “Android App”):
i. You acknowledge that these Terms are between You and us only, and not with Google, Inc. (“Google”).
j. Your use of our Android App must comply with Google’s then-current Android Market Terms of Service.
k. Google is only a provider of the Android Market where You obtained the Android App. We, and not Google, are solely responsible for our Android App and the Services and Evident Content available thereon. Google has no obligation or liability to You with respect to our Android App or these Terms.
l. You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to our Android App.
8. FEES AND PURCHASE TERMS
a. Fees. Certain features available through Evident Properties are available at no cost to You. Services that require payment (“Premium Services”) are clearly indicated in the Evident Properties and require Your consent.
b. Payment. You agree to pay all fees or charges to Your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide Evident with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or other payment provider (such as PayPal) (“Payment Provider”). Your Payment Provider agreement governs Your use of the designated credit card, and You must refer to that agreement and not these Terms to determine Your rights and liabilities. By providing Evident with Your credit card number and associated payment information, You agree that Evident is authorized to immediately invoice and charge Your Account for all fees and charges due and payable to Evident hereunder and that no additional notice or consent is required. You agree that Evident may securely store Your credit card or Payment Provider details for future payment processing and You agree to immediately notify Evident of any change in Your billing address and/or the credit card and/or other payment account (e.g. PayPal) used for payment hereunder. Evident reserves the right at any time to change its prices and billing methods, either immediately up on posting on the Evident Properties or by email delivery to You.
c. Subscription, Subscription Period and Subscription Fees. You can sign up to for a subscription to the Premium Services (the “Subscription”) for monthly or annual periods (the “Subscription Period”). You will be responsible for payment of the applicable fee for any Premium Services (each, a “Subscription Fee”) at the time You consent to the Premium Service (each, a “Service Commencement Date”) for the Subscription Period and any Renewal Periods (as defined herein). Except as set forth in the Terms, all fees for the Premium Services are non-refundable. No contract will exist between You and Evident for the Premium Services until Evident accepts Your order by a confirmatory email, SMS/MMS message, or other appropriate means of communication.
d. Automatic Renewal. YOUR SUBSCRIPTION WILL CONTINUE UNTIL YOU TERMINATE YOUR SUBSCRIPTION IN ACCORDANCE WITH THESE TERMS. After Your initial Subscription Period, and again after any subsequent Subscription Period, Your subscription will automatically commence on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an additional equivalent period as the Subscription Period (the “Renewal Period”) at Evident’s then-current price for such Subscription. EVIDENT WILL AUTOMATICALLY RENEW YOUR SUBSCRIPTION ON EACH RENEWAL COMMENCEMENT DATE FOR THE RENEWAL PERIOD AND, AS AUTHORIZED BY YOU DURING THE PREMIUM SERVICES SIGN-UP PROCESS, EVIDENT WILL CHARGE YOUR PAYMENT PROVIDER WITH THE APPLICABLE SUBSCRIPTION FEE AND ANY SALES OR SIMILAR TAXES THAT MAY BE IMPOSED ON YOUR SUBSCRIPTION FEE PAYMENT, UNLESS YOU CANCEL YOUR SUBSCRIPTION AT ANY TIME PRIOR TO THE RENEWAL COMMENCEMENT DATE.
e. Subscription Cancellation. IF YOU WANT TO CHANGE OR CANCEL YOUR SUBSCRIPTION, YOU CAN LOG INTO THE APP AND CHANGE YOUR ACCOUNT SETTINGS. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME, PROVIDED THAT ANY SUBSCRIPTION FEES CHARGED PRIOR TO THE EFFECTIVE DATE OF CANCELLATION WILL NOT BE REFUNDED, IN WHOLE OR IN PART. YOU WILL NOT BE ELIGIBLE FOR A PRO-RATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR ANY UNUSED DAYS OF THE THEN-CURRENT SUBSCRIPTION PERIOD. IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION PERIOD. YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT SUBSCRIPTION PERIOD EXPIRES.
f. Failure to Pay. If Evident does not receive payment from Your Payment Provider, (i) You agree to pay all amounts due on Your Account upon demand, and/or (ii) You agree that Evident may either terminate or suspend Your Subscription and continue to attempt to charge Your Payment Provider until payment is received.
g. Taxes. Evident’s fees are net of any applicable Sales Tax. If any of the Services, under the Terms are subject to Sales Tax in any jurisdiction and You have not remitted the applicable Sales Tax to Evident, You will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and You will indemnify Evident for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, You will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that You have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Evident is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
h. Free Trials and Other Promotions. Certain Evident services are available at no cost. In addition to these free services, we may make certain Premium Services (each, a “Trial Service”) be made available to You on a free trial basis for a limited period of time. At the end of the trial period, Your use of that Trial Service will expire and any further use of the Trial Service is prohibited unless You pay the applicable fee. We may cease to offer, change or terminate Your use of the Trial Service at any time in our sole discretion.
i. Disputes. You must notify us in writing within seven (7) days after receiving Your Payment Provider statement if You dispute any of our charges on that statement, or such dispute will be deemed waived. Billing disputes should be notified to the following address: email@example.com.
a. Term. These Terms will commence as of the date You accept them (as described in the preamble above) and remain in full force and effect while You use the Evident Properties, unless terminated earlier in accordance with the terms herein.
b. Termination of Services by Evident. If You have materially breached any provision of the Terms, if timely payment cannot be charged for any reason, or if Evident is required to do so by law (e.g., where the provision of the Site, the App or the Services is, or becomes, unlawful), Evident has the right to, immediately and without notice, suspend or terminate any Services provided to You. You agree that all terminations for cause shall be made in Evident’s sole discretion and that Evident shall not be liable to You or any third party for any termination of Your Account.
c. Termination of Services by You. If You want to terminate the Services provided by Evident, You may do so by (a) notifying Evident at any time and (b) closing Your Account for all of the Services that You use. Your notice should be sent, in writing, to Evident’s address set forth below.
d. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service (unless You re-subscribe). Termination of all Services may also include deletion of any of Your Account Credentials, Stored Data and all related information, files and content associated with or inside Your Account. Please note that any termination of the Services will not delete any Stored Data on Your device and/or computer, and You are solely responsible for the deletion of such Stored Data. Evident will not have any liability whatsoever to You for any suspension or termination, including deletion of Your Stored Data. All provisions of these Terms which by their nature should survive, shall survive termination of Services, including, without limitation, ownership provisions, warranty disclaimers, limitation of liability, indemnities, Arbitration Provision, general terms, and representations made by You.
a. Violations. If Evident becomes aware of any possible violations by You of the Terms, Evident reserves the right to investigate such violations. If, as a result of the investigation, we believe that criminal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We are entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Evident Properties, including Stored Data, in our possession in connection with Your use of the Evident Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce these Terms, (3) respond to any claims that Stored Data violates the rights of third parties, (4) respond to Your requests for customer service, or (5) protect the rights, property or personal safety of Evident, users of the Evident Properties or the public, and all enforcement or other government officials, as Evident in its sole discretion believes to be necessary or appropriate.
b. Breach. In the event that Evident determines, in its sole discretion, that You have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Evident Properties, Evident reserves the right to:
(i) Warn You via email (to any email address You have provided to Evident) that You have violated the Terms;
(ii) Delete any Stored Data provided by You or Your agent(s) to the Evident Properties;
(iii) Discontinue Your registration(s) with the any of the Evident Properties, including any Services;
(iv) Discontinue Your subscription to any Services;
(v) Notify and/or send Stored Data to and/or fully cooperate with the proper law enforcement authorities for further action; and/or;
(vi) Pursue any other action which Evident deems to be appropriate.
c. No Subsequent Registration. If Your registration(s) with or ability to access the Evident Properties is discontinued by Evident due to Your violation of any portion of the Terms, then You agree that You shall not attempt to re-register with or access the Evident Properties through use of a different email or otherwise, and You acknowledge that You will not be entitled to receive a refund for fees related to those Evident Properties to which Your access has been terminated. In the event that You violate the immediately preceding sentence, Evident reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to You.
11. BACKGROUND AND OTHER CONSUMER REPORTS
By using the Evident Properties, You hereby acknowledge and agree that we have the right, but not the obligation, to use Evident or a third-party consumer reporting agency and other third party service providers to run periodic background and other consumer reports (collectively, “Reports”) on You in connection with Your use of the Services.
You understand and agree that we may utilize the information from these Reports and that we retain the right to terminate Your account based on the information in these Reports. You hereby represent, understand and expressly agree that we do not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in these Reports.
BY AGREEING TO THESE TERMS AND USING THE EVIDENT PROPERTIES, YOU AGREE TO ALLOW US TO PRODUCE THESE REPORTS. YOU ACKNOWLEDGE AND AGREE THAT WE MAY PROVIDE PART OR ALL OF THE INFORMATION FROM THESE REPORTS TO RELYING PARTIES IF YOU ELECT TO SHARE YOUR STORED DATA WITH SUCH RELYING PARTY.
12. DISCLAIMER OF WARRANTIES
THE EVIDENT PROPERTIES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE EVIDENT PROPERTIES IS WITH YOU.
WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE EVIDENT PROPERTIES, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE EVIDENT PROPERTIES ARE FREE OF PROBLEMS. Without limiting the generality of the foregoing, we make no warranty that the Evident Properties will meet Your requirements or that the Evident Properties will be uninterrupted, timely, secure, or error free or that defects in the Evident Properties will be corrected. We make no warranty as to the results that may be obtained from the use of the Evident Properties or as to the accuracy or reliability of any information obtained through the Evident Properties. No advice or information, whether oral or written, obtained by You through the Evident Properties or from us or our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.
13. LIMITATION OF LIABILITY
WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE EVIDENT PROPERTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, REGARDLESS OF WHETHER SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU FOR OUR SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM, OR, IF YOU HAVE NOT PAID US FOR THE USE OF OUR SERVICES DURING SUCH PERIOD, THE AMOUNT OF $50.
We are not responsible for the conduct, whether online or offline, of any user of Evident Properties or any Relying Party. Moreover, we do not assume and expressly disclaim any liability that may result from the use of information provided on the Evident Properties.
14. FORCE MAJEURE
Under no circumstances will Evident or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.
You agree to hire attorneys to defend us if You violate these Terms and that violation results in a problem for us, including but not limited to if You provide us with false, inaccurate or incomplete Stored Data. You also agree to pay any damages that we may end up having to pay as a result of Your violation, including but not limited to any damages to any Relying Party. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with our defense of such claim.
16. LINKS TO THIRD-PARTY SITES
We sometimes provide links to third-party websites on the Evident Properties. If You use these links, You will leave the Evident Properties. We are not obligated to review any third-party websites that You link to from the Evident Properties, we do not control any of the third-party websites, and we are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, we do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If You decide to access any of the third-party websites linked to from the Evident Properties, You do this entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of the Evident Properties may allow You to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow You to configure Your privacy settings in that third-party website account to permit Your activities on the Evident Properties to be shared with Your contacts in Your third-party site account. Certain areas of the Evident Properties may allow You to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow You to configure Your privacy settings in that third-party website account to permit Your activities on the Evident Properties to be shared with Your contacts in Your third-party site account.
17. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER (THIS “ARBITRATION PROVISION”)
Please Read This Arbitration Provision Carefully. It Affects Your Legal Rights.
This Arbitration Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against us in the same proceeding.
This Arbitration Provision provides that all disputes between You and us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Arbitration Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
a. Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, You must first give us an opportunity to resolve the Dispute which is first done by emailing to us at firstname.lastname@example.org the following information: (1) Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If we do not resolve the Dispute within 45 days after receiving Your notification, then You may pursue Your Dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below.
b. Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, Your or we may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Arbitration Provision by emailing us at email@example.com the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with us through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on Your relationship with us. We do enforce the Opt-Out Deadline so any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
c. Arbitration Procedures. If this Arbitration Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Arbitration Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Evident Properties and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or we may initiate arbitration in either Atlanta, Georgia or the federal judicial district that includes Your billing address. In the event that You select the latter, we may transfer the arbitration to Atlanta, Georgia so long as we agree to pay any additional fees or costs which the arbitrator determines You incur as a result of the transfer.
Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, we will pay all arbitration fees and associated costs and expenses. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
b. Class Action Waiver. Except as otherwise provided in this Arbitration Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both You and we specifically agree to do so following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of the Evident Properties can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
c. Jury Waiver. You understand and agree that by accepting this Arbitration Provision in these Terms, You and we are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Arbitration Provision, You and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
d. Severability. If any clause within this Arbitration Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
e. Continuation. This Arbitration Provision shall survive the termination of Your use of the Evident Properties. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this Arbitration Provision (other than a change to the Notice Address), You may reject any such change and require us to adhere to the language in this Arbitration Provision if a dispute between us arises.
18. LOCAL LAWS; EXPORT CONTROL
We control and operate the Evident Properties from our headquarters in the United States of America and the entirety of the Evident Properties may not be appropriate or available for use in other locations. If You use the Evident Properties outside the United States of America, You are solely responsible for following applicable local laws.
You may not use, export, import, or transfer the Evident Properties except as authorized by U.S. law, the laws of the jurisdiction in which You obtained the Evident Properties, and any other applicable laws. In particular, but without limitation, the Evident Properties 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 the Evident Properties, 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. You also will not use the Evident Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Evident are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Evident products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
19. GENERAL TERMS
Except for disputes subject to the Arbitration Provision, these Terms and the relationship between You and Evident will be governed by the laws of the state of Georgia without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. Foreign laws do not apply. You consent to personal jurisdiction and venue in, and agree to service of process issued or authorized by, any court located in the state of Georgia, United States. Except for disputes subject to the Arbitration Provision, any disputes relating to these Terms or the Evident Properties will be heard in the courts located in Fulton County, Georgia.
These Terms are personal to You, and You may not transfer, assign or delegate Your right and/or duties under these Terms to anyone else and any attempted assignment or delegation is void. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Any delay or failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. These Terms are the entire agreement between You and us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between You and us about the Evident Properties.
20. NOTICE AND CONTACT
We may give notice to You by email, a posting on any Evident Property, or other reasonable means. You must give notice to us in writing via email to firstname.lastname@example.org or as otherwise expressly provided.
If You have any questions about these Terms or otherwise need to contact us for any reason, You can reach us by email at email@example.com.