Last Updated: January 28, 2025Welcome to the phone application (“EVALV”), website and online services of EVALV, LLC (“EVALV,” “Company,” “we,” or “us”). This page explains the terms by which you may use our online and/or mobile services, website, and corresponding software (collectively the “Service”). By accessing or using the Service, you signify that you have read, understood, and agree to be bound by this Terms of Use Agreement (“Agreement”), whether or not you are a registered user of our Service. We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Service thereafter.
USE OF OUR SERVICE
EVALV provides features designed to enhance the electric vehicle charging experience, including: (i) real-time charging station location and availability; (ii) adapter compatibility identification and rental services; (iii) management of electric vehicle profiles, charging sessions, and payments; and (iv) subscription plans for individual users and businesses.
ELIGIBILITY
This Service is intended solely for Users who are 16 years of age or older, and any registration, use or access to the Service by anyone under 16 is strictly prohibited and in violation of this Agreement. If you are older than 16 but younger than 18, you may use the Service but only if you are an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. The Service is not available to any Users previously removed from the Service by the Company.BY CLICKING “I AGREE TO THE TERMS OF USE,” OR OTHERWISE ACCESSING OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT: (i) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT; AND (ii) YOU ARE NOT A PERSON OR ENTITY BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE, OR ANY OTHER APPLICABLE JURISDICTION. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THE AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICES IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY AGREE THAT: (i) THE TERM “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY AND SUCH INDIVIDUAL; AND (ii) THAT THE INDIVIDUAL ENTERING INTO THE AGREEMENT HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT ON BEHALF OF SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
PROPRIETARY RIGHTS
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the "Company Content"), and all Intellectual Property Rights related thereto, are the exclusive property of Company and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
THIRD PARTY LINKS
The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Company. Company does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website from the Service, you do so at your own risk, and you understand that this Agreement and Company’s Privacy Policy do not apply to your use of such sites. You expressly relieve Company from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Company shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
INDEMNITY
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.ADDITIONAL TERMS
Rights to use the Services.
Generally. The Services, and any parts thereof, including the Platform, are protected by copyright laws throughout the world. Subject to the Agreement, EVALV grants you the right to access and use the features and functionality of the Services. Unless otherwise specified by EVALV in a separate license, your right to use any part of the Services is subject to the Agreement. EVALV, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any part of the Services terminates the licenses granted by EVALV pursuant to the Agreement.
Application License. For any App made available as part of the Services, EVALV grants you, subject to your compliance with the Agreement, a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal use. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system); and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
Service Interruptions. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through your internet service, enabled wireless device (such as a phone or tablet) and broadband internet access, or optional cellular backup service, for which neither EVALV nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (collectively, “Service Interruptions”). You understand that Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruption.
Support. You acknowledge and agree that EVALV will have no obligation to provide you with any support or maintenance in connection with the Services. As between us and you, you are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
Registration and Account Creation. In order to access and use certain features of the Services, you may need to register or create an account on the Services (“Account”) and provide certain information about yourself as prompted by the account registration form, including (but not limited to) an email address and password. In order to create an Account, you must provide and maintain current and accurate identification, contact, and other information that may be required as part of the registration process and/or continued use of the Services. You are responsible for maintaining the confidentiality of your password and Account, agree not to share your Account login information with anyone at any time, and are responsible for all activities that occur under your Account. EVALV reserves the right to refuse service to anyone at any time without notice for any reason, including but not limited to, if EVALV has sufficient evidence to believe that any information provided in the registration process in inaccurate, outdated, or incomplete. In no event shall EVALV be liable for any unauthorized access to, or alteration of, your Account, transmissions, or data.
Proper Use; Restrictions. You agree that you are responsible for your own use of the Services and for any consequences thereof. Your use of the Services is subject to your acceptance of and compliance with the Agreement. You agree that you will use the Services in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence. You agree to only access the Services by logging in with authorized Account credentials at [Insert Company Website] or via the mobile App. You shall not, shall not agree to, and shall not authorize or encourage any third party to: (a) use the Services to upload, transmit or otherwise distribute any content that is unlawful, tortious, invasive of another’s privacy, harmful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by EVALV; (b) upload, transmit or otherwise distribute content that infringes upon another party's intellectual property rights or other proprietary, contractual or fiduciary rights or obligations; (c) prevent others from using the Services or otherwise interfere with the proper functioning of the Services; (d) use the Services for any fraudulent or inappropriate purpose; or (e) introduce software or automated agents to the Services for any purpose, including but not limited to produce multiple accounts or generate automated messages. Violation of any of the foregoing may result in immediate termination of this Agreement without notice to you, and may subject you to state and federal penalties and other legal consequences. EVALV reserves the right, but shall have no obligation, to investigate your use of the Services in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, legal process or governmental request. You understand that your Account may be terminated for excessive use at EVALV’s sole discretion.
EVALV reserves the right at all times to remove or refuse to distribute any content on the Services, such as content which violates the terms of this Agreement. EVALV also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), (iv) respond to user support requests, or (v) protect the rights, property or safety of EVALV, its users and the public. EVALV will not be responsible or liable for the exercise or non- exercise of its rights under this Agreement.
EVALV Communications.
Generally. You may have the opportunity to provide us with your e-mail address. By providing your email address to us, you consent to receive email communications from EVALV. Communications from us may include communications about your use of the Services.
Promotional Email Communications. If you opt-in to receive marketing or promotional email communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SITE OR SERVICES.
Electronic Communications. The communications between you and EVALV use electronic means, whether you use the Services or send us emails, or whether EVALV posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from EVALV in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that EVALV provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
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. Prices for our Services are subject to change without notice. You must provide EVALV or Authorize.net as defined below with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing EVALV or Authorize.net with your credit card number and associated payment information, you agree that EVALV and/or Authorize.net is authorized to immediately invoice your Account for all fees and charges due and payable to EVALV hereunder and that no additional notice or consent is required. You agree to immediately notify EVALV and/or Authorize.net of any change in your billing address or the credit card used for payment hereunder. EVALV reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you. All fees are, unless otherwise stated, non-refundable and stated in US dollars.
Payment Processor. We use Authorize.net Inc. (“Authorize.net”) as a third-party provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). By using the Services, you agree to be bound by Authorize.net’s US Terms of Services available at https://www.authorize.net/about-us/terms/ and Privacy Policy available at https://www.authorize.net/about-us/privacy/. You hereby consent to provide and authorize us and Authorize.net to share any information and payment instructions you provide to the extent required to complete payment transactions in accordance with these Terms, including personal, financial, credit card payment, and transaction information.
Cancellation.
Policy. You may cancel or modify their reservations up to 24 hours before the scheduled start of the reservation without penalty. Cancellations made within 24 hours of the scheduled start time may be eligible for a full or partial refund, depending on the circumstances of the cancellation. EVALV reserves the right to assess cancellation requests on a case-by-case basis.
Procedure. To cancel a reservation, You should refer to their confirmation email and follow the provided instructions. If You cannot locate Your confirmation email, or require further assistance, You should contact EVALV Support at (206) 824-2544.
Refund. Approved refunds will be processed to the original payment method within 5-7 business days. If the original payment method is no longer available, EVALV will provide a credit to Your account. Refund amounts may be adjusted based on the timing and reason for the cancellation.
Intellectual Property Rights.
You acknowledge that EVALV and its suppliers own all right, title and interest in and to the Services, including without limitation all intellectual property rights (the "EVALV Rights"), and such EVALV Rights are protected by U.S. and international intellectual property laws. Neither the Agreement (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such EVALV Rights, except for the limited access rights expressly set forth in Section 1. Accordingly, you agree that, except as expressly permitted herein, you will not copy, reproduce, alter, modify, or create derivative works from the Services. The rights granted to you in Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services, (b) you shall not utilize framing techniques to enclose any trademark or logo on the Services; (c) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (d) you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Services; (e) you shall not access the Services in order to build a similar or competitive website, application or service; and (f) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. EVALV, its suppliers and service providers reserve all rights not granted in Agreement. here are no implied licenses granted under the Agreement. Any unauthorized use of the Services terminates the licenses granted by EVALV pursuant to Agreement. The EVALV Rights include rights to (i) the Services developed and provided by EVALV; (ii) all software associated with the Services, and (iii) all updates, improvements, and modifications thereto.
Privacy. EVALV understands that privacy is important to you. You do, however, agree that EVALV may monitor, edit or disclose your personal information, including the content of any emails you may send to EVALV, for marketing or analytics, or if required to do so to comply with any valid legal process or governmental request (such as a search warrant, subpoena, statute, or court order), or as otherwise provided in these Terms of Use.
Account Inactivity. After a period of inactivity, EVALV reserves the right to disable or terminate a user's Account. If an Account has been deactivated for inactivity, the Username associated with that account may be given to another user without notice to you or such other party.
Termination. You may cancel Your account and terminate this Agreement at any time by submitting a formal cancellation request through EVALV’s website [Insert Company Website]or by contacting EVALV Support at (206) 824-2544. Upon termination, You will lost access to Your account, including any saved data and preferences. Fees already paid for services are non-refundable unless otherwise stated in the Cancellation Section of this Agreement. EVALV reserves the right to suspend or terminate Your account without prior notice including, but not limited to, the following circumstances: (i) Violation of Terms; (ii) Non-Payment; (iii) Security or Compliance Risks; or (iv) Prolonged Inactivity. If Your account is terminated for violating this Agreement, you may be permanently barred from re-registering. Any remaining obligations under this Agreement, including indemnification and dispute resolution, will survive termination. If You believe your account was wrongfully terminated, you may submit an appeal request within 10 business days of termination. Appeals must be sent to [Insert Company Email]and include supporting documentation or explanation. EVALV will review the request and respond within a reasonable timeframe, but reinstatement is not guaranteed.
Disclaimer of Warranties.
Generally. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. EVALV AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EVALV AND ITS SUPPLIERS MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY VIDEO RECORDINGS OR IMAGES MADE AVAILABLE THEREON, WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.THE SERVICES ARE SUBJECT TO SPORADIC INTERRUPTIONS AND FAILURES FOR A VARIETY OF REASONS BEYOND EVALV’S CONTROL, INCLUDING WI-FI INTERMITTENCY, AND THIRD-PARTY SERVICE PROVIDER UPTIME, AMONG OTHERS. YOU ACKNOWLEDGE THESE LIMITATIONS AND AGREE THAT EVALV IS NOT RESPONSIBLE FOR ANY DAMAGES ALLEGEDLY CAUSED BY THE FAILURE OR DELAY OF THE SERVICES.
Indemnification. You agree to hold harmless and indemnify EVALV, and its subsidiaries, affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to your use of or inability to use the Services or your violation of this Agreement or any law, rule, or regulation, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. EVALV reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with EVALV in asserting any available defenses. You agree not to settle any matter without the prior written consent of EVALV. EVALV will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Limitation of Liability. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL EVALV OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT EVALV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM ANY ACTS OR OMISSIONS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY; OR (5) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. UNDER NO CIRCUMSTANCES WILL EVALV OR ITS SUPPLIERS BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) AMOUNTS PAID BY YOU TO EVALV HEREUNDER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EVALV AND YOU.
Choice of Law. THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF WASHINGTON CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT. To the extent the parties are permitted under the Agreement to initiate litigation in a court, both you and EVALV agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in King County, Washington.
Arbitration. ARBITRATION CLAUSE. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and EVALV arbitrate disputes against one another.
Dispute Resolution:PLEASE BE AWARE THAT THIS SECTION CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND EVALV HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND EVALV BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION ALSO CONTAINS A JURY TRIAL WAIVER. PLEASE READ THIS SECTION CAREFULLY.
Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and EVALV agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Terms, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and EVALV may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or EVALV may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.
Informal Dispute Resolution. There may be instances when a Dispute arises between you and EVALV. If that occurs, EVALV is committed to working with you to reach a reasonable resolution. You and EVALV agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and EVALV therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to EVALV that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [Insert Company Email]. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
Waiver of Jury Trial. YOU AND EVALV HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and EVALV are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and EVALV agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. You and EVALV agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or EVALV need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: EVALV Solutions PO BOX 78537, Seattle, WA 98178, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your EVALV account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if EVALV makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to EVALV at: [Insert Company Email], your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. EVALV will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
Release. You hereby release EVALV and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with EVALV, other users, or third-party websites of any kind arising in connection with or as a result of this Agreement or your use of the Services. If you are a California resident, you hereby expressly waive California Civil Code Section 1542, which states, "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."
Accessing and Downloading the Application. You acknowledge and agree that the availability of certain aspects of any App we provide as part of the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (the “App Store”). The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
You acknowledge and agree that: (i) the Agreement is concluded between you and EVALV only, and not Apple; and (ii) EVALV, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service, and you agree to pay all fees (if any) charged by the App Store in connection with the Services, including the App.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support with respect to the App Store Sourced Application, and EVALV, not the App Store, is solely responsible for the App, the content thereof, and warranty therefor.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between EVALV and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of EVALV.
You and EVALV acknowledge that, as between EVALV and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and EVALV acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between EVALV and Apple, EVALV, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
You and EVALV acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
Feedback. If you provide EVALV with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to EVALV all rights in such Feedback and agree that EVALV shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. EVALV will treat any Feedback you provide to EVALV as non-confidential and non-proprietary. You agree that you will not submit to EVALV any information or ideas that you consider to be confidential or proprietary.
International Users. The website and other parts of the Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that EVALV intends to announce such services or content in your country. The Services are controlled and offered by EVALV from its facilities in the United States of America. EVALV makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
Copyright/Trademark Information. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. All goodwill generated from the use of any EVALV Marks will inure to EVALV’s benefit.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at the contact information below. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Force Majeure. EVALV shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Contact Information.
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