Last Updated: June 26, 2019
PLEASE READ THE TERMS THOROUGHLY AND CAREFULLY. BY USING THE SITE 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.
All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Site in any manner, and each of your heirs, assigns, and successors.
AGREEMENT TO TERMS
If you do not agree, then you do not have permission to access or use the Site.
We reserve all rights not expressly granted to you. If you wish to use the Site in a way not authorized by these Terms, you must receive our permission prior to such use.
CHANGES TO TERMS OR SITE
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 (the “Modified Terms”) shall be posted on the Site. Your continued use of the Site after Evidation has posted the Modified Terms shall constitute your consent to the Modified Terms. If you don’t agree to be bound by the Modified Terms, you may not access the Site and you must cease all access to and use of the Site. Evidation may change or discontinue all or any part of the Site. Evidation reserves the right to make such changes or discontinuations at any time, without prior notice, and at our sole discretion.
Evidation welcomes feedback, questions, comments, and suggestions regarding the Site or Evidation (“Feedback”). You can submit Feedback by emailing firstname.lastname@example.org or through the Site’s contact page. 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.
You agree not to do any of the following: (i) misrepresent yourself, identity, or other information or send or provide any illegal content through the Services; (ii) use, display, mirror or frame the Site, or any individual element within the Site, 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 Site information or Content (as defined below); (iv) access, tamper with, or use non-public areas of the Site or Evidation’s computer systems (v) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented to protect the Site or the Evidation Content; (vi) use the Site or 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 Site; (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 Site; (ix) use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” the Site 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.
EVIDATION 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 that is posted, generated, provided, or otherwise made available by Evidation on the Site.
Evidation and its licensors exclusively own all right, title, and interest in and to the Site and Content, including all associated intellectual property rights. You acknowledge that the Site and 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 Site or Content.
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 Content, solely in connection with your permitted use of the Site. 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 Site or 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.
LINKS TO THIRD PARTY WEBSITES OR RESOURCES
The Site may contain links to third-party websites or resources. Evidation provides these links only as a convenience and is not responsible for 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 rising from your use of any third-party websites or resources.
TERMINATION & ENFORCEMENT RIGHTS
Evidation may terminate your access to and use of the Site, at its sole discretion, at any time, and without notice to you. Upon any termination, discontinuation, or cancellation of Site the following provisions will survive: “Content and Ownership,” “Termination,” “Disclaimers,” “Limitation of Liability,” “Dispute Resolution,” and “General Terms.”
Although Evidation is not obligated to monitor access to use of the Site or Content or to review or edit any Content, Evidation reserves the right to do so for the purpose of operating the Site, to ensure compliance with these Terms, 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, limiting your Site access, terminating your account, investigating you, and/or cooperating with law enforcement agencies in any investigation or prosecution.
We will respond to notice of alleged infringement that are provided to us through the appropriate channel 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:
The contact information for our designated copyright agent is:
167 2nd Ave, San Mateo, CA 94401
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.
If you receive a notification from us that material made available by you on or through the Services has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Evidation a “Counter Notification.” A Counter Notification must be in writing, provided to our Designated Agent via a method identified above, and include substantially the following information:
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 notification of claimed infringement or counter notification in violation of the law.
THE SITE AND 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.
All or any portion of the Site may not be available and may not function properly at any time. We attempt to avoid technological problems, but at any time the Site may have and may cause technological problems, such as viruses and other damaging computer programming routines or engines. We attempt to ensure the Site is secure but we do not guarantee the security of the Site. We are not liable for any damage or injury caused by the performance or failure of performance of all or any portion of the Site, or any defects, delays, or errors resulting from your use of the Site.
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 SITE AND CONTENT REMAINS WITH YOU. EVIDATION WILL NOT 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 SITE OR 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 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 Site or 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 at https://www.adr.org/sites/default/files/CommercialRules_Web_FINAL_1.pdfor 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 at https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf.) 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).
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 your access to or use of the Site or your violation of these Terms.
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 does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
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. These Terms constitute the entire and exclusive understanding and agreement between Evidation and you regarding the Site 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 Site and the 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.