PLEASE READ THE TERMS THOROUGHLY AND CAREFULLY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
Last Updated: November 2021
Please review these Terms and the Evidation Privacy Notice (the "Privacy Notice"), which is incorporated herein by reference, carefully, because they govern your use of the Services and include, among other things, AN ARBITRATION AGREEMENT WHICH CONTAINS A CLASS ACTION WAIVER.
All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Services in any manner, and each of your heirs, assigns, and successors.
Agreement to Terms
Your permission to access and use Evidation’s Services is conditioned upon your agreement to be bound by these Terms and the Privacy Notice. If you do not agree to be bound by these Terms and the Privacy Notice, then you do not have permission to access or use the Services. By accessing or using the Services, or by clicking "accept" or “agree”, you acknowledge and agree that you have read, understand, and will be bound by these Terms.
We reserve all rights not expressly granted to you. If you wish to use the Services in a way not authorized by these Terms, you must receive our permission prior to such use. Any use of the Services not authorized by these terms and that you have not received prior permission for may result in forced discontinuation of the Services.
Changes to Terms or Services
Evidation reserves the right to modify or terminate these Terms, at any time, without prior notice, and at Evidation’s sole discretion. The modified version of the Terms shall be posted on the Site, and your continued use of the Services after Evidation has posted such terms shall constitute your consent. Because Evidation’s Services continue to evolve over time, Evidation may change or discontinue all or any part of the Services. Evidation reserves the right to make such changes or discontinuations at any time, without prior notice, and at our sole discretion.
Who May Use the Services
You may use the Services only if you are 18 years or older, are a resident of the United States, and not barred from using the Services by applicable law. You may not use our Services in any jurisdiction where offering, accessing or using our Services would be illegal or unlawful.
If you want to use certain features of the Services, you must create an Evidation account (an "Account"). You can do this via the Site, through many of our Evidation Partners' websites and applications, and through certain third-party social-networking services, such as Facebook or Twitter (certain "SNS Accounts"). If you choose the SNS Account option, Evidation will create your Account by extracting certain personal information from your SNS Account, such as your name, email address, and other personal information that your privacy settings on the SNS Account permit Evidation to access. By granting Evidation access to any SNS Account, you authorize us to access, make available and store (if applicable) any content that you have provided to and stored in your SNS Account (“SNS Content“) depending upon the privacy settings you have set within such SNS Account. Unless otherwise specified in these Terms, all SNS Content will be considered to be User Content for all purposes of these Terms. Your relationship with the third-party providers associated with your SNS Accounts is governed solely by your agreements with such third-parties. You represent that you are entitled to disclose your SNS Account login information to us and/or grant us access to your SNS Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable SNS Account and without obligating us to pay any fees or subjecting Evidation to any usage limitations imposed by such third parties.
You must provide Evidation with accurate, complete, and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete, and up-to-date. The Services are maintained for the benefit and participation of individual Account holders (each a "Member") only, and each Member may maintain only one Account. Evidation reserves the right and may choose to suspend or terminate your Account if you create more than one Account, or if any information provided during the registration process or thereafter, including your participation in the Program, studies, or other sponsored programs, proves to be inaccurate, fraudulent, not current, incomplete, or otherwise in violation of these Terms. As part of the Services, you may have the option to connect certain third-party devices or applications to your Account. You agree to only connect your devices and applications, and not those of any other individual. If you connect such device or application, the collection, use, and disclosure of data from such device or application is governed by our Privacy Notice. You agree to notify us immediately of any unauthorized use of your Account. You will be responsible for all access and activity that occurs through your Account, whether you know of or have authorized such activity.
Program Rules. Accounts, memberships in the Program, and promotions, benefits, awards, and rewards provided thereunder (and "Program Benefits") are offered at the discretion of Evidation and its affiliates, and Evidation has the right to terminate your Account, the Program, and any Program Benefits, and to change any terms, conditions of participation, rules, and procedures that Evidation adopts to govern the Program or Program Benefits (any "Program Rules"), in whole or in part, at any time, without notice, even though such changes may affect the value of Program Benefits or program points obtained through use of the Services (or "Program Points") already accumulated. You are responsible for remaining knowledgeable as to the Program Rules that are published on the Site. Evidation may, among other things, withdraw, limit, modify, or cancel any Program Benefits, increase the Program Points required for any Program Benefits, and modify or regulate the transferability of any Program Benefits. In accumulating Program Points, you may not rely upon the continued availability of a Program Benefit and you may not be able to obtain all offered Program Benefits.
Compliance with Program Rules. Participation in the Program is subject to any Program Rules that Evidation may, at its sole discretion, adopt from time to time. Evidation has the sole right to interpret and apply the Program Rules. Any failure to follow Program Rules, abuse of the Program (including inappropriate interactions with Evidation service providers), or misrepresentation of any information furnished to Evidation or Evidation Partners by you or anyone acting on your behalf may result in the termination of your Account and the cancellation of accrued Program Points, Program Benefits, or both.
Program Points and Program Benefits. The Program is generally structured to permit you to exchange Program Points for Program Benefits. The accumulation of Program Points and the redemption of such Program Points are subject to the specific Program Rules enacted by Evidation. Following Account creation, Members are eligible to accrue Program Points through methods of accrual set forth in the Program Rules. A Member may not accrue Program Points for the utilization of the Services by any other person, animal, object, or entity.
If Evidation improperly denies you an accrual of Program Points or a Program Benefit, Evidation’s sole liability will be limited to the equivalent of those Program Points or that Program Benefit.
Evidation reserves the right to make Program Benefits and promotional offers selectively available to certain Members, at any time, based upon geographic locations, Program participation, or other factors determined at Evidation’s sole discretion. You are responsible for ensuring that your Program Points are properly credited. Program Points accrued in your Account will be maintained until such Program Points are redeemed, your Account is terminated, or such Program Points expire pursuant to the Program Rules, whichever occurs first. The accumulation of Program Points does not entitle you to any vested rights with respect to Program Benefits or the Program.
Program Benefit Redemption. The Program Benefits available and the amount of Program Points necessary to redeem each Program Benefit will be set by Evidation and be made available to you on the Site or Mobile App. Certain Program Benefits may be subject to tariffs, taxes, or other required fees, for which you will be responsible. The number of Program Points required to redeem any award may be increased, a Program Benefit may be withdrawn, and restrictions may be placed on any Program Benefit or its redemption by Evidation at any time.
Audit Rights. Evidation reserves the right to audit any and all Accounts at any time and without notice for compliance with the Program Rules. In the event such an audit reveals discrepancies or possible violations, the processing of Program Benefit redemption requests may be delayed pending completion of the audit.
Prohibition on Transfer of Program Points and Program Benefits. No Program Points or Program Benefits earned or granted under the Program may be transferred or assigned except as expressly permitted by Evidation in writing. Accrued Program Points do not constitute property of the Member. Neither accrued Program Points nor accrued Program Benefits are transferable (i) upon death, (ii) as part of a domestic relations matter, or (iii) otherwise by operation of law. The sale or barter of any Program Points or Program Benefits, other than as authorized by Evidation in writing, is expressly prohibited. Any Program Points or Program Benefits that are transferred, assigned, or sold in violation of the Program Rules may be confiscated or cancelled. The use of Program Points or Program Benefits that have been acquired by purchase, barter, or other conduct in violation of the Program Rules may result in Account termination and cancellation of accrued Program Points and Program Benefits.
Program Partners. Some Program Benefits are provided by sponsors and promotion partners of Evidation. These partners are independent entities and Evidation is not responsible for the nature or quality of products or services provided by those partners. Evidation shall have no liability for withdrawal from the Program by such partners or for Program Benefit changes or cancellations caused by such partner withdrawals, or discontinued service by partners.
If you have earned $600 or more in Program Benefits in a calendar year, you must provide accurate address and social security details to us via our current process for tax purposes. These details will be used to allow us to comply with tax regulations and may be shared with appropriate tax authorities. You, not Evidation, are responsible for filing and paying applicable state and federal taxes on any Program Benefits. We do not provide tax advice, nor should any statements in this agreement or on the Services be construed as tax advice.
Evidation welcomes feedback, comments, and suggestions for improvement to the Services ("Feedback"). You can submit Feedback by emailing Evidation at email@example.com or through your Account. By submitting Feedback, you represent and warrant that (a) you have the right to disclose the Feedback, (b) the Feedback does not violate the rights of any other person or entity, and (c) the Feedback does not contain the confidential or proprietary information of any third party or parties. You hereby grant Evidation a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable, and transferable license under any and all intellectual property rights that you own or control, to use, copy, modify, create derivative works based upon, and otherwise exploit the Feedback for any purpose. You irrevocably waive, and cause to be waived, against Evidation and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your Account or the Services.
You agree not to do any of the following: (i) use another person’s Account; misrepresent yourself, identity, or other information or send or provide any illegal content through the Services; (ii) use, display, mirror or frame the Services, or any individual element within the Services, any Evidation trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, (iii) in any manner, copy copyrighted text, or otherwise misuse or misappropriate Services information or Content; (iv) access, tamper with, or use non-public areas of the Services, Evidation’s computer systems, or the technical delivery systems of Evidation’s providers, (v) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented to protect the Services or the Evidation Content; (vi) use Services or the Evidation Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms; (vii) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or the Content; (viii) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; (ix) use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” the Services or any related data or information; (x) disable or circumvent our API usage safeguards or make calls to our API other than those authorized in our API documentation; (xi) violate any applicable law or regulation; or (xii) encourage or enable any other individual to do any of the foregoing.
Content and Content Ownership
For the purposes of these Terms: "Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials; "Evidation Content" means any Content that is posted, generated, provided, or otherwise made available by Evidation through the Services; "User Content" means any Content that you provide to Evidation or Evidation Partners through access to or use of the Services.
Evidation does not claim any ownership rights in any User Content that you make available through the Services and nothing in these Terms will be deemed to restrict any rights you may have to use and exploit your User Content. Subject to the foregoing, Evidation and its licensors exclusively own all right, title, and interest in and to the Services and Evidation Content, including all associated intellectual property rights. You acknowledge that the Services and Evidation Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services or Content.
Evidation Content License
Subject to your compliance with these Terms, Evidation grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to download, view, copy, display, and print the Evidation Content, solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or Evidation Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Evidation or its licensors, except for the licenses and rights expressly granted in these Terms.
User Content License
By making any User Content available through the Services you agree to and hereby grant Evidation a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display and perform, and distribute your User Content (i) in connection with operating and providing the Services and Evidation Content to you and (ii) to third parties, as instructed or requested by you.
You are solely responsible for your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content granted under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Evidation on or through the Services will infringe, misappropriate, or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Evidation reserves the right, but is not obligated to remove or disable access to any Content, at any time and without notice, including, but not limited to, if Evidation, in its sole discretion, considers any Content to be objectionable or in violation of these Terms. You acknowledge and agree that we do not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of or reliance on User Content. You understand that by using the Services, you may be exposed to User Content that you may consider offensive or objectionable.
No Medical Advice
Our Content may include information that relates to your health or wellness, or is otherwise medically related. Such Content is for informational purposes only. We are not engaged in the practice of medicine, either directly or indirectly, and we do not render medical advice via the Services. Your use of the Services does not create any healthcare provider/patient relationship. If you have any questions regarding a medical condition, you should seek the advice of your physician, or any other qualified healthcare professional. If you think you are having a medical emergency, call your healthcare professional or the emergency number (usually 911) without delay.
No Legal Advice
Our Content may include information that is legal or regulatory in nature. Such Content is for informational purposes only. We are not providing you legal or regulatory advice, and your use of the Services does not create an attorney/client relationship. If you have any questions regarding your legal rights, or regarding any laws or regulations, you should seek the advice of your attorney.
Health Program Services
If you participate in our Health Program Services, there may be times when we may ask you if you would like us to act as your authorized representative to help you gain access to or obtain a copy of your medical records from your various providers. We will always ask for your specific permission prior to doing so. In some cases, even if you would like us to help you gain access to your medical records, we may not be able to fulfill your request. We will let you know if that is the case. In addition, if you don’t provide us with accurate information about yourself or your healthcare providers, we may be unable to access records, and we would only be able to obtain records from those healthcare providers that you tell us about. Even if we are able to help you and obtain copies of your medical records, we cannot verify the accuracy or the completeness of the records we obtain, as what we obtain will be dependent on your healthcare providers or others from whom we are obtaining the records.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. Evidation provides these links only as a convenience and is not responsible for, and disclaims any and all liability related to or arising from, the content, products, or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk related to your use of any third-party websites or resources.
Termination & Enforcement Rights
Evidation may terminate your Account and access to and use of the Services, at its sole discretion, at any time, and without notice to you. You may cancel your Account by accessing and selecting to terminate your Account through the Site. Upon any termination, discontinuation, or cancellation of Services or your Account the following provisions will survive: "Feedback," "Content and Ownership," "User Content License," "Termination," "Disclaimers," "Limitation of Liability," "Dispute Resolution," and "General Terms."
Although Evidation is not obligated to monitor use of the Services or Evidation Content or to review or edit any Content, Evidation reserves the right to do so for the purpose of operating the Service, to ensure compliance with these Terms, to monitor for fraud, or to comply with applicable law or other legal requirements.
Without limiting any other rights reserved herein, Evidation may, in its sole discretion, take any action permitted by law for any violation of these Terms or any other policy or agreement between you and Evidation, including but not limited to removing User Content you posted, limiting your Account access, requiring you to forfeit Program Rewards, assessing monetary penalties or costs, terminating your Account, blocking access, investigating you, and/or cooperating with law enforcement agencies in any investigation or prosecution.
We will respond to notices of alleged infringement that are provided to us through the appropriate channels and comply with applicable law. The contact information for our copyright agent is provided at the bottom of this section. If you believe that your Content has been copied or otherwise used in a manner that constitutes copyright infringement, please contact us at the information below. In order for us to take action, your notice must contain ALL of the following:
1. Your physical or electronic signature. If you are not the copyright owner, a physical or electronic signature of the individual authorized to act on behalf of such copyright owner;
2. Identification of the copyrighted work that is claimed to be infringed;
3. Identification of the materials that you believe infringe your copyright, and sufficient information to allow us to locate such materials;
4. Your contact information;
5. A statement that you have a good faith belief that the materials identified as infringing are not authorized by the copyright owner, an agent of the owner, or otherwise authorized by law; and
6. A statement that the information in your notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
The contact information for our designated copyright agent is:
Evidation Health, Inc.
63 Bovet Rd #146
San Mateo, CA 94402
You should consult with your own lawyer and/or see 17 U.S.C. §512 to confirm your obligations to provide a valid notice of claimed infringement.
Counter Notification. If you receive a notification from us that material made available by you on or through the Services has been the subject of a notice of alleged infringement, then you will have the right to provide Evidation with a “Counter Notification.” A Counter Notification must be in writing, provided to our Designated Agent via the method identified above, and include substantially the following information:
● A physical or electronic signature of the User;
● Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
● A statement under penalty of perjury that the User has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
● The User’s name, address, and telephone number, and a statement that the he/she consents to the jurisdiction of Federal District Court for the judicial district in which the address on the notice of alleged infringement is located, or if outside the United States, for any judicial district in which Evidation may be found, and that the User will accept service of process from the person who provided the notice of alleged infringement or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. §512 to confirm obligations to provide a valid counter notification under the Copyright Act.
False Notifications. We reserve the right to seek damages from any party that submits a notice of alleged infringement or Counter Notification in violation of the law.
THE SERVICES AND EVIDATION CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, EVIDATION EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. EVIDATION MAKES NO WARRANTY THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND CONTENT AND ANY CONTACT YOU HAVE WITH OTHER USERS OF THE SERVICES OR THIRD PARTIES, REMAINS WITH YOU. NEITHER EVIDATION NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR EVIDATION CONTENT WILL BE LIABLE (EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE): FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR EVIDATION CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EVIDATION HAS BEEN INFORMED THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL EVIDATION'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE LARGER OF THE AMOUNTS YOU HAVE PAID TO EVIDATION FOR USE OF THE SERVICES OR EVIDATION CONTENT AND ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGE SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EVIDATION AND YOU. THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Governing Law. These Terms and any action related thereto will be governed by the law of the State of California, without regard to its conflict of laws provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with Evidation as follows:
Agreement to Arbitrate. You and Evidation agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, or the use of the Services, Evidation Content, or User Content (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Class Action Waiver. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU ACKNOWLEDGE AND AGREE THAT YOU AND EVIDATION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Evidation otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of the "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive termination of these Terms.
Arbitration Rules. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available here
or by calling the AAA at 1-800- 778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this "Dispute Resolution" section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration, as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration here
). The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential finding and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Evidation will not seek and hereby waives all rights it may have under applicable law to recover attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Evidation will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Rule 11(b) of the Federal Rules of Civil Procedure).
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you use on the Services) written notice of your decision to opt out to firstname.lastname@example.org with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of your first use of the Services; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Evidation also will not be bound by them.
Changes. Notwithstanding the provision of the "Changes to Terms or Services" section above, if Evidation changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending Evidation a written notice (including by email at email@example.com) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of any Evidation email that may be submitted to you to provide notice of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Evidation in accordance with the provisions of the "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Indemnification and Release
You agree to release, defend, indemnify, and hold Evidation and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Services or your violation of these Terms; (b) your User Content or the Evidation Content; and (c) your interaction with any User or third-party applications on the Services.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold Evidation and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides:
A general release does not extend to claims which 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.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
General Terms. With the exception of any supplemental terms that may apply to the Mobile App, these Terms constitute the entire and exclusive understanding and agreement between Evidation and you regarding the Site, Services, and the Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Evidation and you regarding the Services and the Evidation Content. You may not assign or transfer these Terms, by operation of law or otherwise, without Evidation’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. The failure of Evidation to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that or any other right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Evidation. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Rights and Terms for Mobile App
Mobile App License Grant and Restrictions. Subject to your compliance with these Terms and any supplemental terms supplied with the Mobile App, Evidation grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the Mobile App on a mobile device or computer that you own or control and to run such copy of the Mobile App solely for your own personal non-commercial purposes. Evidation reserves all rights in and to the Mobile App not expressly granted to you under these Terms. You may not: (i) copy, modify, or create derivative works based on the Mobile App; (ii) distribute, transfer, sublicense, lease, lend, or rent the Mobile App to any third party; (iii) reverse engineer, decompile, or disassemble the Mobile App; or (iv) make the functionality of the Mobile App available to multiple users through any means.
Additional App Provider Terms.
If you download the Mobile App through or from any app store or distribution platform where the Mobile App is made available (any "App Provider"), such as the Apple App Store or Google Play, then you acknowledge and agree that:
The Terms are concluded between you and Evidation, not with the App Provider, and that Evidation is solely responsible for the Mobile App;
The App Provider has no obligation to furnish any maintenance or support services with respect to the Mobile App;
In the event of any failure of the Mobile App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price (if any) for the Mobile App to you and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Mobile App. Any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the client.
The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Mobile App or your possession and use of the Mobile App, including but not limited to: (i) product liability claims; (ii) any claims that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Mobile App or your possession and use of that Mobile App infringes a third party's intellectual property rights, Evidation will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim, to the extent required by these Terms.
The App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the Mobile App, and, upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Mobile App against you as a third-party beneficiary thereof.
You must comply with all applicable third-party terms of service when using the Mobile App.
You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the Mobile App, nor any technical data related thereto, nor any direct product thereof is exported or re-exported directly or indirectly in violation of or used for any purposes prohibited by such laws and regulations. By using the Mobile App you represent and warrant that: (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.