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Terms and Conditions of Service

Effective as of: 01/22/13 Date of Last Revision: 12/21/2022


1. 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.
If you use our Services on behalf of another person or entity, (a) all references to “you” or “your” throughout these Terms of Use will include that person or entity, (b) you represent that you are authorized to accept these Terms of Use on that person’s or entity’s behalf, and (c) in the event you or that person or entity violates these Terms of Use, that person or entity also agrees to be responsible to us. Our Services are provided to you only for your personal, family or household purposes and expressly exclude any commercial use. Users under 18 years of age (or the age of legal majority where the user lives) may only use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use. The parent or legal guardian of a user under the age of 18 (or the age of legal majority) is fully responsible for the acts or omissions of such user in relation to our Services. If you are a parent or legal guardian and you believe that your child under the age of 18 is using our Services without your consent, please contact us at [email protected]

You may create an evo Membership account in order to use some or all of our Sites and Services. You may not share or permit others to use your individual account credentials. You will promptly update any information contained in your account if it changes. You must use a strong password for your account that is unique to our Services and not used by you in any other website or online service.  You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.

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 IRREVOCABLY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL ADDITIONAL TERMS INCORPORATED BY REFERENCE. EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN THE SECTION TITLED DISPUTE RESOLUTION; BINDING ARBITRATION, (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SUCH SECTION, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND EVO WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SITES OR THE SERVICES.


2. 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, or we may provide you with notice of such changes by way of another mechanism, such as by sending an email, or providing a notice through our Services. 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 our notice of such changes or modifications will constitute and confirm your agreement to and acceptance of the Terms of Use as so changed or modified. If you do not agree to the amended terms, you must stop using the Sites and the Services.


3. Privacy Policy

You may provide certain information to evo in connection with your access or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. You agree to receive emails, SMS or text messages, and other types of communication from evo via the services using the email address or other contact information you provide in connection with teh services. You represent and warrant that any information that you provide to evo in connection with the Services is accurate.

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


4. Email Communication

By making a purchase on the Site or otherwise creating an account on the Site, you understand that we may send you communications or data regarding our products and services.  You agree to receive such communications from us.  Unless such email is necessary to facilitate a transaction, such as to complete a sale or provide you with information related to a purchase, we will give you the opportunity to opt-out of receiving these commercial emails from us by following the opt-out instructions provided in such message(s).


5. 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, except for the license you grant below, as between you and evo, User Content (as defined below) on the Sites, if any, remains your intellectual property. 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, publicly or otherwise perform and display, and exploit your User 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.


6. Digital Millennium Copyright Act (“DMCA”) Notice

IIn 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 [email protected], evo HQ, 401 N 36th St #200, Seattle, WA 98103.


7. 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.


8. 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.


9. 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.


10. 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.


11. 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 retail stores. 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.


12. Terms of Sale

By purchasing Merchandise through the Services, you agree to the terms set forth in this Section.

Eligibility. To complete your purchase, you must have a valid billing and shipping address within a country that can be selected as part of the checkout process on the Sites (the “Territory”). We make no promise that Merchandise available on the Sites are appropriate or available for use in locations outside the Territory.

Restrictions. The Merchandise are not authorized for resale. We may place a limit on the quantities that may be purchased per order, per account, per payment card, per person, or per household. We reserve the right, without prior notice, to refuse service to any customer or reject any order at any time and refund any money you have paid for such order.

Price.  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. Taxes and shipping and handling costs will be added to the amount of your purchase and itemized on the checkout page. You will have an opportunity to review taxes and delivery costs before you confirm your purchase. All prices on the Sites are subject to change at any time without notice. We do not collect taxes on merchandise shipped to a jurisdiction in which we do not have substantial nexus, in which case you will be liable to the appropriate taxing authority for any sales taxes relating to your purchase from the Sites.

Payment. If you wish to make a transaction, you may be asked to supply certain relevant information, such as your payment card number and its expiration date, your billing address, and your shipping information, to us or our payment processors. You represent and warrant that you have the right to use any payment card that you submit in connection with a transaction. We may receive updated information from your issuing bank or our payment service provider about any payment method you have stored with us.  You authorize us to charge your payment method, including any updated payment method information we receive, for any charges you are responsible for under these Terms. Verification of information may be required prior to the acknowledgment or completion of any transaction. You will pay all charges incurred by you or on your behalf through the Services, at the prices in effect when such charges are incurred, including all taxes and shipping and handling charges applicable to your transactions. In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’’ fees and other legal expenses.

Order Confirmation; Acceptance. You will have the opportunity to review and confirm your order, including delivery address, payment method, and other details of your order. Although we may confirm orders by email, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell Merchandise. We will display or send a notice when we ultimately accept your order, and our acceptance will be complete at the time we display or send the formal acceptance notice. Payment must be received by us before our acceptance of an order.

Shipping; Delivery. Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions set forth in these Terms of Use or otherwise contained on the Services. You will pay all shipping and handling charges specified during the ordering process. All transactions are made pursuant to a shipment contract and, as a result, risk of loss and title for Merchandise pass to you upon delivery of the Merchandise to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. Any shipping dates provided are approximate and not guaranteed. We are not liable for any delays in shipments.

Order Delays; Cancellation. We reserve the right to delay, refuse, or cancel any order prior to delivery. For example, if there are errors on the Sites or made in connection with your order or inaccuracies in Merchandise or pricing information or Merchandise availability, we reserve the right to correct the error and charge you the correct price or cancel your order. We will contact you if any portion of your order is canceled or if additional information is required to accept your order. Occasionally, the manufacture or distribution of certain Merchandise may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.

Refunds and Exchanges. Refunds adn exchanges will be subject to evo’s applicable Returns Policy.

Reservation of Rights. Evo reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Merchandise; to impose conditions on the honoring of any coupon, discount, or similar promotion; to bar any user from making any transaction; to alter the payment option for Merchandise; and to refuse to provide any user with any Merchandise.


13. 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.


14. Promotions

Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available through the Services may be governed by rules that are separate from these Terms of Use. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms of Use, the Promotion rules will govern.


15. 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.


16. 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.


17. Indemnification

To the fullest extent permitted by applicable law, You will 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 losses, demands, claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’’ fees) (“Claims”) 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. You will promptly notify Indemnified Parties of any Claims, cooperate with Indemnified Parties in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims. The Indemnified Parties will have control of the defense or settlement, at evo’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and evo or the other Indemnified Parties.


18. Disclaimer

YOUR USE OF OUR SITES AND SERVICES AND ANY CONTENT OR MATERIALS PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY CONTENT AND THIRD-PARTY MATERIALS) IS AT YOUR SOLE RISK. 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 ACCESSED 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. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF THE INDEMNIFIED PARTIES, AND EVO’S RESPECTIVE SHAREHOLDERS, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS, AS WELL AS THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.


19. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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.

THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT OF THE INDEMNIFIED PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.


20. Release

To the fullest extent permitted by applicable law, you release the Indemnified Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party


21. Dispute Resolution; Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND EVO TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND EVO FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND EVO AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. EVO AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.

(a)        Informal Dispute Resolution Prior to Arbitration. For any dispute or claim that you have against evo, that evo has against you, or that you have or evo has arising from or relating to these Terms, our products or our Services, or any aspect of the relationship between you and evo as relates to these Terms, our products, or our Services, including any privacy or data security claims, (collectively, “Claims”, and each a “Claim”), you and evo agree to attempt to first resolve the Claim informally via the following process:

  • If you assert a Claim against evo, you will first contact evo by sending a written notice of your Claim (“Claimant Notice”) to evo by certified mail addressed to [mailing address] or by email to [email address]. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
  • If evo asserts a Claim against you, evo will first contact you by sending a written notice of evo’s Claim (“evo Notice”), and each of a Claimant Notice and evo Notice, a (“Notice”) to you via email to the primary email address associated with your account. The evo Notice must (i) include the name of an evo contact and the contact’s email address and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
  • If you and evo cannot reach an agreement to resolve the Claim within thirty (30) days after you or evo receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or evo first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
(b)       Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or evo, including any disputes in which you or evo seek injunctive or other equitable relief for the alleged unlawful use of your or evo’s intellectual property or other infringement of your or evo’s intellectual property rights (“IP Claims”), all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 21(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.

(c)        Federal Arbitration Act.  These Terms affect interstate commerce, and the enforceability of this Section 21 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law. As limited by the FAA, these Terms, and the AAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability.

(d)       Arbitration Procedure.  All Claims must be submitted to the American Arbitration Association (the “AAA”) and will be resolved through binding arbitration before one arbitrator. The AAA administers arbitration pursuant to the due process standards set forth by the AAA.
The then-current version of the AAA’s Consumer Arbitration Rules, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and evo:
  • YOU AND EVO AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND EVO ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedure to govern if twenty-five (25) or more similar or coordinated claims are asserted against evo or you by the same or coordinated counsel, may not consolidate more than one individuals claims, preside over any type of class or representative proceeding, or preside over any procedding involving more than one individual.
  • For any arbitration you initiate, you will pay the consumer filing fee, and evo will pay the remaining AAA fees and costs. For any arbitration initiated by evo, evo will pay all AAA fees and costs.
  • For all arbitrations where the Claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, and (iii) if the parties are unable to agree on a location, such determination will be made by the AAA or by the arbitrator.
  • If you or evo submits a dispute to arbitration and the arbitrator orders any exchange of information, you and evo agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and evo agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
  • The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
  • The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against evo or against you by the same or coordinated counsel or are otherwise coordinated.
  • In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and evo understand and agree that when twenty-five (25) or more similar claims are asserted against evo or you by the same or coordinated counsel or are otherwise coordinated resolution of your or evo’s Claim might be delayed. For such coordinated actions, you and evo also agree to the following coordinated bellwether process. Counsel for claimants and counsel for evo shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases shall be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.  A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
  • This bellwether process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. 
  • The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or evo’s case is selected for a bellwether process, withdrawn, or otherwise resolved. 
  • A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against evo or you.
(e)        One Year to Assert Claims.  To the extent permitted by law, any Claim by you or evo relating in any way to these Terms, our products or our Services, or any aspect of the relationship between you and evo as relates to these Terms, our products, or our Services, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and evo will not have the right to assert the Claim.

(f)        Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at [email address] or by certified mail addressed to [department and address]. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 22.

(g)       Rejection of Future Arbitration Changes.  You may reject any change we make to Section 21 (except address changes) by personally signing and sending us notice within 30 days of the change via email at [email address] or by certified mail addressed to [department and address]. If you do, the most recent version of Section 20 before the change you rejected will apply.

(h)       Severability. If any portion of this Section 21 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 21 or the parties’’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 21; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 21 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 21 will be enforceable.

(i)        Notwithstanding anything to the contrary in the Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this Section 21 of the Terms or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.


22. Governing Law

Any Claims will be governed by and construed and enforced in accordance with the laws of the State of Washington, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Claim is not subject to arbitration pursuant to Section 21, then the state and federal courts located in the County of King, Washington, will have exclusive jurisdiction. You and evo waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.


23. Export Control

You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.   


24. 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.


25. 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.


26. Miscellaneous

Evo’s failure to exercise or enforce any right or provision of these Terms of Use will not operate as a waiver of such right or provision. These Terms of Use reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms of Use are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.

If you have a question or complaint regarding the Sites or Services, please contact evo customer care. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.