1. USE OF THE WEBSITE AND THE SERVICES. You may access and use the Website and the Services only for lawful purposes and solely in accordance with the terms of this Agreement. Except as expressly permitted, You shall not: (a) license, sublicense, rent, lease, loan, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services; or (b) copy, distribute, display, publicly perform, modify or make derivative works of any text or informational (collectively, the “Evolve Information”) found on the Website. All rights not expressly granted to You under this Agreement are reserved by Evolve, if any. Notwithstanding the foregoing, Evolve reserves the right to limit the availability of the Website and the Website Content to any person, group, geographic area or jurisdiction, at any time. If you access the Website from outside the U.S., you do so at your own risk and you are responsible for compliance with any local laws.
2. CONDUCT. You agree that you will not:
• Use the Website or any Website Content for any unlawful purpose;
• Submit, post or transmit any defamatory, libelous, abusive, harassing, obscene, indecent, threatening or illegal material, or any material that infringes the intellectual property rights of others, to or through the Website;
• Use the Website or any Website Content to send unsolicited mass mailings, email, junk mail, "spam", chain letters or promotions or advertisements for products or services;
• “Frame” or “mirror” any part of the Website without our prior written authorization;
• Forge any TCP/IP packet header or any part of the header information in any email, content/information/data submitted on or through the Website, or in any way use the Website or Website Content to send altered, deceptive or false source-identifying information;
• Interfere with, or attempt to interfere with, the access of any Website user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Website;
• Access, tamper with, or use, without authorization, non-public areas of the Website, Evolve’s computer systems or the technical delivery systems of Evolve's providers;
• Attempt to probe, scan, or test the vulnerability of any system or network used for the Website or breach any security or authentication measures for such systems and networks;
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Website or Website Content;
• Impersonate or misrepresent your affiliation with any person or entity to Evolve or on or through the Website; or
• Express or imply that any statement you make is endorsed by us, without our prior written consent.
3. REPRESENTATIONS AND WARRANTIES. You represent, warrant and covenant for the benefit of Evolve that: (a) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (b) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; and (c) all information You provide to Evolve in connection with this Agreement and Your access to the Website and use of the Services is correct and current.
4. TERMINATION AND SUSPENSION. This Agreement will be effective on the date You first use the Services and will continue until terminated. Evolve reserves the right, at its sole discretion, to terminate this Agreement or Your access to any part of the Website or the Services with or without notice to You and with or without cause. Evolve may also suspend Your use of the Website or any Services or direct You to cease using the Website or any Services with or without notice to You and with or without cause. You agree that Evolve has no obligation to retain any information provided by You beyond the termination of the Agreement. Upon Termination of this Agreement, all rights and licenses granted to You in this Agreement will immediately cease to exist. All Sections, except Section 1, "USE OF THE WEBSITE AND THE SERVICES" shall survive any termination of this Agreement. Upon any termination of this Agreement, you must cease any further use of the Website and the Website Content.
Evolve welcomes links to its Website. You may establish a link to this Website, provided that the link does not state or imply any sponsorship or endorsement of Your site by Evolve or any group or individual affiliated with Evolve. You may not use on Your site any Content or Marks appearing on the Website in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Website without prior written consent.
6. OWNERSHIP OF INTELLECTUAL PROPERTY. Evolve owns all rights, title and interest in and to the Website, and Services, including, without limitation, the Evolve Information and any Intellectual Property Rights (defined below) therein and/or related thereto. The Evolve name and logo are trademarks of Evolve, and no right or license is granted to You herein to use such trademarks (collectively, “Marks”). “Intellectual Property Rights” means all worldwide patent, patent applications, copyrights, trade secrets, trademarks, service marks, trade names and any other intellectual property, proprietary, and database protection rights. You will not remove, deface or obscure any copyright, trademark or other proprietary notices and/or legends of Evolve on or incorporated into the Website Content.
7. CLAIMS OF INFRINGEMENT. Just as Evolve requires users of the Website to respect the copyrights and other intellectual property rights of Evolve, Evolve respects the copyrights and other intellectual property rights of users of the Website and other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Website without authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:
Evolve Network LLC
Attn: Copyright Infringement Agent
1040 Court Street, San Rafael, CA 94901, USA
Please provide the following information to Evolve’s Copyright Infringement Agent:
1. the identity of the infringed work, and of the allegedly infringing work;
2. Your name, address, daytime phone number, and email address, if available;
3. a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law;
4. a statement of the accuracy of the notice and, under penalty of perjury, that You are authorized to act on behalf of the owner; and
5. Your electronic or physical signature.
8. DISCLAIMER. YOU UNDERSTAND AND AGREE THAT THE WEBSITE AND WEBSITE CONTENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES WHATSOEVER. YOU RECOGNIZE THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE WEBSITE AND USE OF THE SERVICES AND INTERRUPTIONS, CRASHES AND DOWNTIME MAY OCCUR FROM TIME TO TIME. EVOLVE AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY AS TO THE SERVICES, INCLUDING THE EVOLVE INFORMATION. EVOLVE DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE WEBSITE OR SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE WEBSITE AND SERVICES WILL MEET ANY REQUIREMENTS OR EXPECTATIONS; OR (C) ANY EVOLVE INFORMATION PROVIDED THROUGH THE SERVICES WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE. EVOLVE AND ITS AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO ORAL OR WRITTEN INFORMATION GIVEN BY EVOLVE WILL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. EVOLVE SHALL HAVE NO LIABILITY TO YOU IN THE EVENT OF A FAILURE OF THE WEBSITE OR ANY SERVICES.
YOU AGREE THAT YOUR ACCESS TO THE WEBSITE AND USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR THROUGH ACCESS TO THE WEBSITE OR USE OF THE SERVICES.
9. INDEMNIFICATION. You shall indemnify, defend, and hold harmless Evolve and each of their respective employees, officer, directors, consultants, agents and affiliates (“Indemnified Parties”), from any and all claims, losses, liabilities, damages, fees, expenses and costs (including, but not limited to, attorneys’ fees, court costs, damage awards, and settlement amounts) which result from any claim or allegation against any Indemnified Party arising from Your accessing the Website or Your breach of any term of this Agreement. Evolve will provide You with notice of any such claim or allegation, and Evolve will have the right to participate in the defense of any such claim at its expense.
10. LIMITATION OF LIABILITY.
10.1. General Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EVOLVE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE), WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF, OR IN CONNECTION WITH THE WEBSITE OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE WEBSITE OR SERVICES, EVEN IF EVOLVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.
10.2. Cap on Liability. IN NO EVENT WILL EVOLVE’S TOTAL LIABILITY IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT EXCEED FIFTY DOLLARS ($50). IN STATES OR JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EVOLVE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
a. Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., without reference to its conflict of laws provisions. The parties consent to the exclusive jurisdiction and venue of the courts located in and/or serving Marin County, California.
b. Waiver and Severability. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.