Terms and Conditions of Service

Effective as of: 01/22/13 Date of Last Revision: 01/22/13

Introduction

Welcome to the Evolucion Innovations, Inc. (“evo”) network of websites (together, “Sites”). These Website Terms and Conditions ("Terms of Use") apply to your access to and use of the Sites, regardless of domain name or IP address and the features and applications, products and services accessible through the Sites (collectively the "Services"). These Terms of Use are in addition to the terms and conditions of any other agreement you may have with evo for products, services or otherwise, including, without limitation, the terms and conditions of evo’s Privacy Policy, as it may be amended from time to time.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. BY ACCESSING OR USING ANY OF THE SITES OR THE SERVICES, YOU ARE ENTERING INTO A LEGAL CONTRACT WITH EVO, THE TERMS OF WHICH GOVERN YOUR USE OF THE SITES. BY YOUR ACCESS OR USE OF THE SITES OR SERVICES YOU UNCONDITIONALLY AND IRRIVOCABLY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL ADDITIONAL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SITES OR THE SERVICES.

Modifications to Terms of Use

evo may change, modify or remove any provision of this Terms of Use, at any time and in its sole discretion. If evo changes or modifies these Terms of Use, it will post the changes on the then current version of these Terms of Use and will indicate at the top of this page the date these Terms of Use were last revised. Any changes or modifications will be effective immediately upon posting, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Sites or the Services following the posting of changes or modifications will constitute and confirm your agreement to and acceptance of the Terms of Use as so changed or modified. It is your responsibility to regularly check this Site to determine if there have been changes to these Terms of Use and to review such changes. If you do not agree to the amended terms, you must stop using the Sites and the Services.

Privacy Policy

Please refer to the evo Privacy Policy for information on how evo collects, uses and discloses the information collected on the Sites.

Copyright and Limited License

Except as provided in these Terms of Use or as otherwise indicated on the Sites, the Sites, the Services and all content and other materials on the Sites, including without limitation, all designs, text, graphics, creative, images, information, data, software, routines, documentation, technology, and digital files, as well as the selection and arrangement thereof (collectively, the "Site Materials") are the intellectual and proprietary property of evo or its licensors or users and are protected by U.S. and international copyright, trademark, trade secret and other laws. You are granted a limited license, without the right to sublicense, to access and use the Sites and the Services for your informational, non-commercial and personal use only. Such license is subject to these Terms of Use and any other applicable terms and conditions. Except as explicitly permitted under these Terms of Use or agreed to by evo, no portion or element of the Sites or Site Materials may be copied or retransmitted via any means and the Sites, the Site Materials and all related rights shall remain the exclusive property of evo or its licensors. You may not remove any copyright, trademark or other proprietary notices from any Site Materials.

Notwithstanding the foregoing, user published content on the Sites, if any, remains the intellectual property of the individual user. By posting content on our Sites, you grant evo a non-exclusive, perpetual, irrevocable, royalty-free, worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media, whether now known or hereafter discovered. In addition, you warrant that all so-called "moral rights" in those materials have been waived. You are responsible for, and represent and warrant to evo that you have obtained, any releases, clearances, licenses, assignments and permissions (including those relating to privacy and rights of publicity) necessary for evo to post the content and exercise its rights under this paragraph.

Any use or attempted use of the Sites, the Site Materials or the Services other than as specifically authorized herein, without the express prior written permission of evo or its licensors or users, is strictly prohibited and will, among other things, terminate the license granted herein. Such unauthorized use or attempted use may also violate applicable laws, including without limitation, copyright and trademark laws and applicable communications regulations and statutes. Except as explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to any intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time, in evo’s sole discretion.

Digital Millennium Copyright Act (“DMCA”) Notice

In operating the Sites, we may act as a "services provider" (as defined by DMCA) and offer services as online provider of materials and links to third party sites. As a result, third party materials that we do not own or control may be transmitted, stored, accessed or otherwise made available using the Sites. If you believe any material available via the Sites infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA. We will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content. Our designated agent (i.e. proper party for notice) to whom you should address infringement notices under the DMCA to dmc_complaints@evo.com, evo HQ, 3500 First Avenue NW, Seattle, Washington 98107.

Trademarks

All logos and any other product or service name or slogan contained on the Sites are trademarks of Evo or its manufacturers, distributors, advertisers, suppliers, customers, clients, vendors or licensors, and may not be copied, imitated or used, in whole or in part, without the express prior written permission of Evo or the applicable trademark holder. In addition, the look and feel of the Sites, including all page headers, custom graphics, button icons and scripts, are the service marks, trademarks and/or trade dress of Evo and may not be copied, imitated or used, in whole or in part, without our express prior written permission. All other trademarks, service marks, logos, and product names published on the Sites are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, distributor, service provider, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Evo.

Hyperlinks

evo makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Sites, or websites linking to the Sites. Such sites are not under the control of evo and evo is not responsible for the contents of any linked site or any link contained in a linked site, for any review of such sites, for the products or services available on or through such sites, or for changes or updates to such sites. evo provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by evo of any site, the products or services available on or through any site, or any information contained therein. When you leave the Sites, these Terms of Use will no longer govern your Internet browser session. Your use of any site to which you navigate from the Sites will be subject to that site's terms of use, if any, and its privacy and data gathering and usage policies. It shall be your sole responsibility to review the applicable terms and policies, including privacy and data gathering and usage practices, of any site to which you navigate from the Sites.

Third Party Content and Applications

In addition to the Site Materials, our Sites may include third party content and may provide links to websites and content of third parties (collectively the "Third Party Content") as a service to those interested in this information, including content and views of various individuals such as product managers, employees, customers, athletes, experts or members of the public. The views expressed in such Third Party Content are those of the creators thereof and are not, and should not be construed as, the views of evo. In addition, the Sites may include certain applications, features, programs and services provided by third parties (the "Third Party Applications"). evo does not monitor Third Party Content or Third Party Applications and makes no guarantee as to the accuracy or completeness of such Third Party Content or Third Party Applications. evo is not responsible or liable in any manner for any Third Party Content or Third Party Applications, or for any loss, liability, harm or damages of any sort incurred as the result of your use thereof or access thereto, and makes no representations or warranties in connection with any Third Party Content or Third Party Applications, which at all times and in each instance is provided "as is." Third Party Applications may be subject to additional terms and conditions or agreements between you and the provider(s) of the Third Party Applications, and you agree to fully comply with all such additional terms, conditions and agreements. Your use of Third Party Content and Third Party Applications is at your own risk.

Third Party Products, Services and Advertisements

evo provides on the Sites information about and/or links to third party products and services, and supports and enables the retail purchase of third party products and services (collectively, “Merchandise”) on the Sites. Your personal or commercial relationship with such third parties, your use of the Merchandise of such third parties, and any terms, conditions, warranties or representations associated with such relationship, Merchandise, or use are solely between you and such third party. evo is not responsible or liable for any loss, damage or injury of any sort incurred as the result of any such relationship, Merchandise or use, nor as the result of the presence of such third-party advertisers, information, or Merchandise on the Sites.

Merchandise Information and Availability

evo does not guarantee the Merchandise that is displayed on the Sites is available in its then current warehouse inventory, nor does it guarantee that the Merchandise displayed on the Sites is available in its Seattle, Washington retail store. If the Merchandise you select is not available by the time your order processes, we will remove the item or items and the corresponding charge(s) from your order. You can always confirm the current availability of Merchandise by calling evo’s Customer Care team at 1-866-386-1590. We will send a shipping confirmation e-mail to the e-mail address you include on your order form once Merchandise you have ordered has shipped.

Pricing and Other Errors

Merchandise pricing on the Sites is stated in U.S. dollars, unless otherwise indicated, net of applicable taxes and shipping charges, if any. Evo takes commercially reasonable steps to post current, accurate prices for the Merchandise. However, notwithstanding such steps, pricing errors may still occur. If an item's price is displayed incorrectly, we will cancel your order for that item and alert you of the order cancellation. In addition, Evo undertakes commercially reasonable steps to display true and accurate images, including colors, of the Merchandise on the Sites. Actual images and colors that render on your computer or device depend on a number of factors, including the capabilities and settings of your monitor or device, and may therefore not be accurate. Accordingly, Evo does not guarantee the accuracy of the Merchandise images on the Sites.

User Content and Conduct

The Sites or the Services may include public or restricted access product reviews, discussion forums, or other interactive areas or services ("Interactive Areas"), including chat rooms or message boards or other areas or services in which you or other users create, post or store messages, information, text, music or sound files, still or video images, graphics, data, code or any other digital content of any kind on the Sites ("User Content"). Interactive Areas are provided "as is" and your use of the Interactive Areas is at your own risk.

If you post User Content, you acknowledge and agree that your User Content will be accessible and viewed by others. You agree not to post, upload, transmit, distribute, store, create or otherwise publish on or through the Sites any of the following:
  • User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
  • User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
  • User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute, reproduce and license such User Content in the manner and for the purposes contemplated by these Terms of Use;
  • User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
  • Any unauthorized commercial use such as, but not limited to, engaging in unsolicited promotions, political campaigning, advertising, or solicitations, hyperlinking from the Sites, or collecting user data for any purpose whatsoever;
  • Private or confidential information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
  • Viruses, bots, Trojan horses, malware, worms, corrupted data or other harmful, disruptive or destructive files of any kind or nature;
  • Encrypted content or content that can be demonstrated to contain encoded messages;
  • Content in any language other than English if an accurate, reliable translation cannot be reasonably acquired;
  • Multimedia content of any kind, such as photo, audio and/or video files, except when invited by the Site to do so; and
  • User Content that, in the sole judgment of evo, is objectionable or that restricts or inhibits any other person from using or enjoying the Interactive Areas or the Sites, or which may expose evo or its users to any harm or liability of any type.

This foregoing is a non-exclusive and incomplete list of examples of prohibited acts and practices, and evo will at all times have sole discretion to interpret and determine conduct, including User Content, that violates these Terms of Use.

evo is not responsible, and assumes no liability, for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto or resulting therefrom, nor is evo liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, profanity or other objectionable content you may encounter. As a provider of interactive services, evo is not responsible or liable for any statements, representations or User Content provided by its users in any public forum or other Interactive Area. Accordingly, evo has no obligation to screen, edit, or monitor User Content or the Interactive Areas. However, evo reserves the right, and has absolute discretion, to refuse, block, move, or remove any User Content posted or stored on the Sites at any time with or without cause, for any reason or no reason and without notice. You are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites or through the Services at your sole cost and expense. Any use of the Interactive Areas or other portions of the Sites or the Services in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Interactive Areas, the Sites and/or the Services.

Representations; User Data; Security

In consideration of your use of any of the Sites and the Services, you represent and warrant that you are of legal age to form a binding contract. In consideration of your use of any of the Sites and Services, you agree to:
  • provide accurate, current and complete information about you as may be prompted by any Merchandise order form or other forms on the Sites ("User Data");
  • maintain and be solely responsible for the security of your User Data; and
  • accept all risks of unauthorized access to or use of your User Data and any other information you provide to evo.

Submissions Relating to Site(s) or Services

You acknowledge and agree that, except for User Content submitted in an Interactive Area, any materials, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials, images or other information regarding the Sites, the Services, Merchandise or evo provided or submitted by you for any reason, including by of example, in response to an invitation or request to participate in surveys or other forums hosted by or for evo or any third party manufacturer, distributor or vendor, on the Sites or related to the Sites, in whatever form, or any other submissions to evo by or through any means, including email or any postings on the Sites, are non-confidential and shall be the sole property of evo, and that upon submission of such materials to evo you thereby assign without additional consideration all right, title and interest you may hold in such materials to evo. evo shall own exclusive rights, including all intellectual property rights, in such materials and shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to or review by you.

Indemnification

You agree to defend, indemnify and hold harmless evo, its affiliated entities, clients, customers, independent contractors, service providers and consultants, and their respective directors, employees, shareholders, members and agents (together, “Indemnified Parties”), from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to your use of the Sites, the Services, the Site Materials, the Merchandise and any User Content you post, store or otherwise transmit on or through the Sites, the Services or your use of the Interactive Areas, including without limitation, any actual or threatened suit, demand or claim made against the Indemnified Parties, or any of them, arising out of or relating to the User Content, your conduct, your use of the Merchandise, your violation of these Terms of Use or the evo Privacy Policy, as each may be amended from time to time, or your violation of any laws, regulations or third party rights.

Disclaimer

EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY EVO, THE SITES, THE SITE MATERIALS, THE SERVICES, AND ALL MERCHANDISE AND/OR CONTENT MADE AVAILABLE ON, CONTAINED IN, OR ACCCESSED THROUGH THE SITES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY BY EVO OF ANY KIND, EITHER EXPRESS OR IMPLIED. ANY WARRANTIES IN RESPECT TO MERCHANDISE ARE LIMITED SOLELY TO THOSE WARRANTIES PROVIDED OR EXTENDED BY THE MANUFACTURER THEREOF. EVO DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE MERCHANDISE, INFORMATION, CONTENT AND SITE MATERIALS ON THE SITES. EVO DOES NOT REPRESENT OR WARRANT THAT THE MERCHANDISE, CONTENT AND SITE MATERIALS ON THE SITES OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR- OR DEFECT-FREE. EVO DOES NOT REPRESENT OR WARRANT THAT THE SITES OR THEIR HOST SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EVO IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PROGRAMS, TEXT OR IMAGERY. WHILE EVO ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITES AND THE SERVICES SAFE, EVO CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITES OR THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Limitation of Liability

IN NO EVENT WILL THE INDEMNIFIED PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, INJURY TO PERSON OR PROPERTY OR DEATH, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EQUITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF ANY MERCHANDISE, OR USE OF OR INABILITY TO USE THE SITES, THE SERVICES, THE INTERACTIVE AREAS, OR THE SITE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM EVO, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS OR INTERNET FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO EVO’S RECORDS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EVO, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITES EXCEED THE MERCHANDISE PURCHASE PRICE OR ANY COMPENSATION YOU PAY, IF ANY, TO EVO FOR THE PURCHASE OF MERCHANDISE ON OR THROUGH, OR ACCESS TO OR USE OF, THE SITES.


Applicable Law and Venue

These Terms of Use and your use of the Sites and the Services, including without limitation, your purchase and/or use of any item of Merchandise, shall be governed by and construed in accordance with the laws of the State of Washington applicable to agreements made and performed entirely within the State of Washington, without resort to its conflict of law provisions. You agree that any action at law, contract or in equity arising out of or relating to these Terms of Use shall be filed only in the state and federal courts located in King County, Washington and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms of Use, including your purchase and /or use of any item of Merchandise.

Termination

Notwithstanding any provision of these Terms of Use, evo reserves the right, without notice and in its sole discretion, to terminate your license to use the Sites, the Services, the Site Materials or any portion of any of the foregoing, and to block or prevent your future access to and use of the Sites or any of the Services or Site Materials.

Severability

If any provision of these Terms of Use shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.

Questions & Contact Information

Questions or comments about the Sites may be directed to evo customer care.