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Terms of Service - LOU®

Last Updated June 30, 2023.

These Terms of Service (“Terms”) govern your use of LOU®, a software as a solution (“LOU”) provided and maintained by Evosus®, Inc. (“Evosus”, “we,” or “us”) provided through evosus.com (the “Site”), as well as our related merchant products (“Products”) available through lou.store (collectively, the “Evosus Services”). These Terms, along with our Privacy Policy and EULA: LOU® incorporated herein by reference, create a binding agreement between you and/or your company ( “you”, or “Customer”) and Evosus. Evosus and you may be individually referred to herein as a “Party” and collectively as the “Parties”. 

If you have any questions about these Terms or the Evosus Services, please contact us at support@evosus.com.

By accessing the Evosus Services, you agree to comply with these Terms in their entirety. If you do not agree with these Terms, you may not use the Evosus Services. EVOSUS PROVIDES THE EVOSUS SERVICES SPECIFIED HEREIN SOLELY PURSUANT TO, AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH, THESE TERMS OF SERVICE. 

In consideration of mutual promises and full access and use of the Evosus Services, and upon the terms and conditions set forth below, the Parties agree as follows:

  1. EVOSUS SERVICES

    a.  LOU®

    LOU is a business management software as a solution that streamlines and automates business procedures. You agree to use LOU and ensure that your authorized users (“Users”) use LOU, in compliance with these Terms, the EULA: LOU®, LOUcommerce Terms of Service, and all applicable laws and regulations, including without limitation applicable export and re-export control laws and regulations. Additionally, by using LOU, you agree and comply with the terms and privacy policies of any third-party hosting service Evosus may use, such as Google Cloud or Microsoft Azure. Information provided through LOU may be collected, recorded, stored and/or maintained by Evosus for business purposes and business analytics or as otherwise described in our Privacy Policy. 

    Evosus maintains an updated list of supported devices for use with LOU® at https://lou.store/product-category/lou-hardware/ (“LOU® Hardware”). As a Customer, you must ensure that you and your users only access or use LOU® using LOU® Hardware.  Any access or use of LOU® via any device not listed as LOU® Hardware is strictly prohibited and Evosus will not support such devices on LOU®.  

    b.  Products

    Some Evosus Products, such as hardware bundles, training programs and consulting services, can be purchased through lou.store. Your purchase and use of any Product is subject to these Terms of Services as well as any and all applicable terms of sale and/or terms of use as provided to you at the time of purchase.

    c.  Card Data Transfer Services

    From time to time, Evosus may offer a separate or add-on service to transfer the card on file data (“Card Data”) for your customers that is housed on a third-party payment system to the customer’s payment system with Evosus (“Card Data Transfer Services”). The Card Data Transfer Services tokenizes the Card Data and securely transfers the Card Data from the prior payment system to Evosus via a third-party payment processor. Evosus only interacts with the tokens, and never accesses or processes the Card Data. Once transferred, the Card Data can be used to process invoices on Evosus. 

    By signing up for the Card Data Transfer Services, you represent and warrant that (a) the Card Data you submit to us is truthful and accurate and you will continuously maintain its accuracy; (b) you have express authorization from all applicable card holders to collect, access, and use the Card Data you transfer via the Card Data Transfer Services; (c) you will only use the Card Data with respect to purchases and payments in a manner and amount subject of the informed consent of each such card holder; and (d) your use of Card Data Transfer Services does not and will not violate any applicable law, rule or regulation.

    d.  Site

    You may access and use Evosus Services through our Site on a device with internet access. Device information, such as IP addresses and location, may be collected in order to improve our business, analyze data and for internal business purposes. Please review our Privacy Policy for details.

  2. REGISTRATION

    a.  Registration

    Anyone can visit the Site, but to use most Evosus Services you must first register and create an account. The information required to create an account may vary depending on your account type or the country or region from which you or a User register. Your account is for your use only. You are strictly prohibited from granting anyone else access to the Evosus Services through your account or using your access credentials. You must apply and be approved for a card services merchant account via Evosus Payments (“Evosus Payments”) to use any of the Products.

    By registering you agree to: (a) submit a valid e-mail address and password to create your account; (b) submit accurate information; (c) keep confidential your user name and password, all aspects of your account, content associated with and within your account, and all aspects of your Users’ account information to which you may have access; and (d) immediately notify Evosus of any unauthorized use of your account at support@evosus.com. You agree to only use the Evosus Services for lawful and permitted purposes. You are responsible for all activities that occur using your login and password. Some Evosus Services may not be available to all customers. We will explain which Evosus Services are available to you during the registration process

    b.  User Access

    You are responsible for ensuring that your Users only attempt to access the Evosus Services on a Supported Device. Evosus is not responsible for any use or misuse of the Evosus Services on any device not included in the Supported Device list. You agree to: (i) be responsible for compliance with these Terms by all of your Users accessing or using the Evosus Services by, through or in connection with your Evosus account; (ii) ensure that each User agrees to our Privacy Policy and these Terms and consents to the collection and processing of the User’s Personal Information via the Evosus Services prior to such User accessing the Evosus Services; (iii) be responsible for the accuracy and lawful collection and use of any data, including Personal Information of Users or other individuals, that is provided to Evosus or input to the Evosus Services by you and all of your Users; and (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Evosus Services. Any use of the Evosus Services in violation of the foregoing by you or your Users that in our sole judgment threatens the security, integrity, or availability of the Evosus Services may result in immediate suspension of access to the Evosus Services.

    c.  User Accounts

    To be eligible to be a User, you must: (a) be at least 18 years of age; (b) engage in lawful business in the United States; and (c) use the Evosus Services in compliance with these Terms. By creating a User account, you represent and warrant that you meet the foregoing eligibility criteria and that you have read, understood, and agree to be bound by the Terms. You may create your User account for yourself, or, alternatively, a User account may be assigned to you by an Evosus account administrator or a reseller of Evosus Services, in which case additional terms may apply. As a User, you agree to hold harmless and indemnify Evosus and our affiliates, partners, officers, agents, and/or employees from any claim, suit or action arising from or related to your use of the Evosus Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and reasonable attorney's fees.

    d.  Communications

    Evosus may use your contact information to communicate with you about your use of the Evosus Services. For example, we may send you messages related to the Evosus Services or other information you have requested from us by email, phone, text, mail, or other means (“Service Messages”). You understand that you receive Service Messages as part of your use of the Evosus Services. While you can adjust your communications preferences by following instructions in our Privacy Policy, customers will not be able to fully opt out from receiving Service Messages. 

    Evosus may send you marketing communications by email, mail, or other means in compliance with applicable law and your stated communication preferences. You can opt out of marketing communications by clicking “unsubscribe” in our emails, texting STOP, or submitting an opt-out request to marketing@evosus.com.

    By providing us with your wireless phone number, you consent to Evosus sending you Service Messages by text or SMS. The number of texts that we send to you will be based on your circumstances and requests. You can unsubscribe from text messages by replying STOP or UNSUBSCRIBE to any of these text messages. Messaging and data charges may apply to any text message you receive or send. Please contact your wireless carrier if you have questions about messaging or data charges.

  3. FEES AND PAYMENT

    a.  License Fee

    Some Evosus Services are only available in exchange for a fee to pay for a subscription and/or license (in each case, a “License Fee”). Your License Fee is determined by (i) the specific Evosus Services you purchase; (ii) the maximum number of active Users permitted to use those Evosus Services in relation to your account during the applicable 30-day billing period; (iii) the Package you have selected for the applicable 30-day billing period; and (iv) any applicable Evosus Payments Fees. The Evosus Services may, from time-to-time require updates which may occur automatically on your device once a new version or feature is available. You will not be required to pay an additional License Fee for these software updates.

    b.  Evosus Payments Minimum Fee

    Users will be charged a service fee of $195 USD per 30-day billing period for Evosus Payments (“Evosus Payments Fee”). Notwithstanding the previous sentence, Tthe Evosus Payments Minimum Fee will be waived for any 30-day billing period in which a User processes over $30,000 USD via credit or debit card, Google Pay, Apple Pay, Samsung Pay or ACH payment via Evosus Payments. For clarity, payments made via cash, check, or other mobile payment applications shall not count toward the $30,000 USD minimum required for waiver of the Evosus Payments Minimum Fee.

    c.  Professional Onboarding Fee

    When you sign up for LOU, you must pay a one-time professional onboarding fee (“Professional Onboarding Fee”) for our professional onboarding service, which includes up to five (5) hours of remote assistance (ex. via phone and/or screen sharing software). Professional onboarding fees may vary depending on your selected Package.

    d.  Add-On Fees

    You may choose to add additional features and services (“Additional Services”) provided by Evosus or our third-party vendors. Additional Services may cause you to incur an additional fee as stated at the time of selection (“Add-on Fees”). You may add or cancel Additional Services at any time by logging into your account and using the administrative tools. New Additional Services are available immediately upon selection. Cancellations of Additional Services are effective at the beginning of the next billing period.

    e.  Total Fees

    You agree to pay the Total Fees associated with the Evosus Services you select and any changes you make to your selections from time-to-time, as well as any and all applicable sales and use taxes for the purchase of your subscription based on the address that you provide at registration. All fees are quoted in United States dollars. Your “Total Fees” are the following fees as applicable for a given 30-day billing period: (i) the amount of your License Fee including any applicable Evosus Payments Fee, (ii) the cost of the Package you select (e.g., Foundation, Pro, or Enterprise) as described on the Pricing page on evosus.com; (iii) any Add-On Fees you selected; and (iv) at the time you sign up for LOU, the one-time Professional Onboarding Fee. Fees may change from time-to-time, and we shall notify you in writing prior to such change taking effect.

    f.  Payment

    Your initial payment of Total Fees is due at the time you sign up or make a purchase, based on the Evosus Services you have selected. Thereafter, Total Fees are due and payable on a thirty (30) day billing cycle. You must maintain a valid payment method on file with our third-party payment processor. You agree that Evosus may charge your payment method on file with the Total Fees due under these Terms, any sales and use taxes, and any late fees or interest (as described below). You represent and warrant that the payment information you provide to us is correct and accurate and you are using a form of payment that you are legally authorized to use for this purpose. You agree that you are solely liable for any payment or credit card fraud, abuse or unauthorized use by you or others. 

    If you do not pay on time or if we cannot charge your payment method on file for any reason, we reserve the right to either suspend or terminate your access to the Evosus Services. In addition, if any payment is not received within 30 days after the due date, then we may charge a late fee of $10 and we may assess interest at the rate of 1.5% of the outstanding balance per month (18% per year), or the maximum rate permitted by law, whichever is lower, from 30 days after the due date until the date paid. If your unpaid fees are referred to an attorney or collections agency, you shall pay all reasonable attorney’s fees or collections agency fees. Returning customers must pay any unpaid balance, including any late fees, before receiving Evosus Services. All Fees shall be paid in U.S. Dollars.

    g.  Refunds

    Payments are nonrefundable. You may terminate your account or any specific Evosus Services at any time and for any reason, however, you will not be refunded any fees for the month in which you cancelled. If you cancel before the end of the then-current billing period, you will have access to the Evosus Services, minus Additional Services, until the end of that billing period.

  4. LICENSE

    a.  License Grant

    As a Site visitor or potential customer, you have a revocable, non-transferable, non-exclusive license to access the Site for your own personal and non-commercial purposes. If you are a Customer or a User, in exchange for payment of the applicable License Fees, you have limited, royalty-free, non-assignable and non-exclusive license to access to use LOU, Products, or other Evosus Services that you have purchased or to which you subscribe for the purposes described in these Terms (your “License”). You may increase, decrease, leave unchanged or terminate your License at any time, so as to fit the number of Users you require from time to time. Any use of the Evosus Services not expressly permitted hereunder is strictly prohibited. The licenses and permissions described in these Terms will terminate automatically if you breach any of these Terms.

    b.  Proprietary Rights

    Unless otherwise expressly indicated, the information contained on the Evosus Services, including but not limited to all images, illustrations, designs, photographs, video clips, text, graphics, icons, designs, software code, written information and screens appearing in the Evosus Services, and other materials, as well as names, logos, taglines, trade dress, and other trademarks, on the Site or in our other Services, are copyrights, trademarks, trade dress or other intellectual property (collectively, the “Contents”) owned, controlled, or licensed by Evosus or its affiliates, or are the property of their respective owners. The Contents are protected by U.S. and foreign copyright, trademark, trade dress, or other proprietary right laws and international conventions. No license to or regarding any of the Contents is granted in connection with your use of the Evosus Services. 

    You understand that your license to use the Evosus Services does not authorize you to use any Contents in any manner other than specifically authorized by these Terms. You may not use our Contents in any way that might confuse or that disparages us. Any other use of the Contents in the Evosus Services including reproduction for purposes other than as noted herein, without the prior written permission of Evosus, is strictly prohibited. Only a duly authorized officer of Evosus may grant permission or a license to use any of our Contents; any attempted grant or similar promise by anyone other than a duly authorized officer of Evosus is invalid.

    c.  Copyright and Trademarks

    You do not have permission to copy, reproduce, make derivative works from, distribute, republish, download, display, perform, post electronically or mechanically, transmit, record, or mirror any of the Contents without the prior written permission of Evosus. You may only display, download, or print the Contents for the purpose of using the Evosus Services as an internal or personal business resource.

    Evosus’s trademarks, including names, logos, taglines, trade dress, and other trademarks, may not be copied, imitated, or used, whether in whole, partial or modified form, without the prior written permission of Evosus. You may not use any meta tags or any other hidden text utilizing a Evosus name, trademark, or product name without Evosus’s prior written permission. Third party trademarks and service marks used in the Evosus Services are the property of their respective owners, and we use them with their consent. Evosus and the other licensors of the marks in the Evosus Services reserve all rights with respect to all Contents and all intellectual property.

    d.  License Limitations

    Your license to use the Site or other Evosus Services, as applicable, does not permit you to copy, modify, distribute, sell, sublicense or lease any part of Evosus Services or included software, nor may you reverse engineer or attempt to extract the source code of Evosus Services. You agree that you will not download any content from the Evosus Services unless that specific content is accompanied by a “download” or similar link. 

    These Terms do not grant you any right, title or interest in the Evosus Services, other Users’ content on the Evosus Services, or Evosus trademarks, logos or other brand features. All rights of Evosus to the Evosus Services not expressly licensed in these Terms are reserved and retained by Evosus. Some of the Evosus Services may be offered under an open-source license that we make available to you. There may be provisions in the open-source license that expressly override some of these Terms. 

    You are strictly prohibited from using the Evosus Services to: (i) transmit, store, or process any data in violation of applicable law or regulation; (ii) promote any goods or services or send communications that are illegal in the place offered to consumers; (iii) defraud, deceive or mislead anyone; (iv) communicate or transmit content that is defamatory, dishonest, obscene, sexually explicit, pornographic, vulgar or offensive; (v) promote or engage in discrimination, racism, harassment or hate speech against any individual or group; or (vi) threaten or promote violence.

    e.  Feedback

    You may from time-to-time provide us materials, communications, suggestions, comments, improvements, ideas, or other feedback related to the Site or the Evosus Services (“Feedback”). You hereby additionally grant to us all rights, titles, and interests in and to any Feedback. In the event this grant is not sufficient for us to fully realize and use the Feedback, you grant us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use and incorporate into the Evosus Services any of the Feedback. By providing Feedback, you are representing that the Feedback is not subject to any intellectual property claim by a third party or any license terms which would require products or services derived from that Feedback to be licensed to or from, or shared with, any third party.

    f.  User Content

    By transmitting or submitting any User Content while using Evosus Services, you affirm, represent, guarantee and warrant that such transmission or submission is (i) accurate and up-to-date; (ii) not in violation of any applicable laws, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the User Content; (iii) free of viruses, adware, spyware, worms or other malicious code; and (iv) you acknowledge and agree that any of your Personal Information within such content will at all times be processed by us in accordance with our Privacy Policy. For purposes of these Terms: (i) As used in this paragraph, “User Content” means any text, software, scripts, graphics, photos, sounds, music, videos, logos, audiovisual combinations, interactive features and other materials one may view on, access through, or contribute to the Evosus Services that you or your User provide to be made available through the Evosus Services.

    You retain all right and title to your User Content. In consideration for your use of the User Content features on the Evosus Services, you grant to Evosus an irrevocable, worldwide, royalty-free, fully paid, sub-licensable, perpetual license to use, reproduce, make derivative works from, distribute, publish, display, or perform such User Content in whole or in part, by any and all means and media, in connection with advertising, marketing and promoting Evosus, our products and the Evosus Services. You acknowledge that Evosus may modify the User Content for any purpose. However, Evosus has no obligation to use any User Content, and our use of any User Content does not create or imply any endorsement of or affiliation with you.

    User Content must not (a) misrepresent your identity or affiliation with any person or organization; (b) seek to collect others’ Personal Information by any means; (c) seek to transmit chain letters, or bulk or junk email; (d) relate to contests, sweepstakes, or other sales promotions; (e) include information that may be used to track, contact, or impersonate another; (f) infringe any intellectual property or other proprietary rights of Evosus or any other person; (g) seek to harm or exploit children; (h) contain any material that is false, defamatory, libelous, obscene, harassing, discriminatory, profane, or otherwise offensive, damaging, unlawful, or harmful; (i) violate the legal rights of Evosus or any other person or entity, contain any material that could give rise to civil or criminal liability under applicable laws or regulations, or otherwise promote, advocate or assist any illegal activity or unlawful act; or (j) be otherwise objectionable as determined by Evosus at our sole discretion.

    We take the rights of others very seriously. If you are concerned that any User Content on the Evosus Services is improper or infringing, please contact marketing@evosus.com. If you would like the User Content removed, please provide: (i) a detailed description of the objectionable content, including where it is located on the Evosus Services; (ii) a statement that you have a good faith belief that the poster does not have permission to use the said objectionable content; (iii) a statement that you are the owner, or exclusive agent of the owner, of the objectionable content; (iv) your contact information, and; (v) a signed and sworn statement, under penalty of perjury, that your statements above are true to your knowledge.

  5. EVOSUS APPS

    Customers may have the option to access some of the Evosus Services via one or more mobile applications (the “App”). Evosus offers Customers some Apps in connection with certain Evosus Services for no additional charge, while other Apps are available to Customers for an additional Fee. To use the App, you must have a compatible mobile telephone or handheld device, internet access (if required by the App), and the necessary minimum specifications (“Software Requirements”) to use the App. The Software Requirements for Apple iOS devices and Android OS devices can be found on the relevant App Store page. The App software may be upgraded from time to time to add support for new functions and services. The App may request certain privacy permissions from time to time, such as access to other applications or data stored on your device. 

    If you download one of our Apps, register or create a profile in one of our Apps or the Site, or otherwise submit information to Evosus, you acknowledge the Evosus Privacy Policy and you consent to the collection and use of information as described therein. We reserve the right to amend or withdraw any of our Apps at any time and for any reason. If you do not agree with our policies and practices, you should not download or use our App or access the Site.

    You acknowledge that the terms of agreement with your respective mobile network provider will continue to apply when using the App. Data and messaging charges may apply to your use of the App or any text messaging or photo sharing features you use via the App. You accept responsibility for any such charges that arise. If you are not the bill payer for the mobile telephone or handheld device being used to access the App, you will be assumed to have received permission from the bill payer for using the App.

  6. THIRD PARTY CONTENT

    To enhance your experience, we may display, use, or link to content or services (“Affiliate Content”) owned or operated by third-party affiliates or partners (“Third-Party Affiliates”). The Third-Party Affiliate is solely responsible for the Affiliate Content and service it provides to you, and we in no way guarantee the accuracy of the Affiliate Content and Services or their compliance with their own terms of use and privacy policies. You should review any Third-Party Affiliate agreements prior to use of Affiliate Content. We are under no obligation to ensure that Affiliate Content is error-free, accurate, or up to date. Evosus reserves the right to suspend or stop providing the Evosus Services to you if you do not comply with our or applicable Third-Party Affiliate terms or policies.

    Additionally, if you opt-in for a non-integrated third-party offer, deal or promotion on the Site, you hereby understand and agree that we must share your contact information in order for the third-party partner to contact you regarding the offer.

  7. TERM AND TERMINATION

    a.  Term

    These Terms are effective on the first date you access any Evosus Services and continue until terminated by either party or you discontinue all use of the Evosus Services, whichever is sooner.

    b.  Termination

    You may cancel any license or subscription to the Evosus Services (“Contract”) at any time by contacting support@evosus.com and discontinuing all use of the Evosus Services. Evosus may in our sole discretion cancel your Contract at any time by giving you notice via the Evosus Services or otherwise in writing. Except as otherwise provided herein, any cancellation of your Contract is effective at the end of the then-current billing period. Cancellation of your Contract terminates your and our obligations related to such contract as set forth in these Terms and any other agreements executed between us and you as a customer. 

    Evosus may limit, suspend, terminate, modify, or delete your account or access to the Evosus Services, with or without notice to you if: (i) we suspect that you are noncompliant with these Terms in any way; (ii) we believe that you are infringing our or a third party’s intellectual property rights; or (iii) your behavior is inconsistent with the letter or spirit of these Terms or any published policies. Specific to the Foundation package, we may terminate your account and stop providing the Evosus Services at any time after 30 days of non-use, without notification to you.

    At any time, you may, cancel, remove or change your User Content at any time by editing or specifically deleting it. However, in certain instances, some of your removed or edited User Content may not be completely removed, and copies of your User Content may continue to exist on our systems. Copies, or meta copies, of User Content and information is solely used for purposes associated with the Evosus Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content at any time.

    c.  Effect of Termination

    Upon termination of these Terms: (i) the rights and licenses granted to you herein shall terminate; (ii) you shall cease all use of the Evosus Services that have been terminated; and (iii) Evosus may at our own discretion remove and/or purge data, account information, and any other information obtained by us in connection with providing you the Evosus Services. Evosus reserves the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.

  8. DISCLAIMER OF WARRANTIES

    YOUR USE OF THE EVOSUS SERVICES IS AT YOUR OWN RISK. EVOSUS MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE EVOSUS SERVICES OR RELATING TO THE AVAILABILITY, QUALITY, RELIABILITY, SUITABILITY, TIMELINESS, TRUTH, ACCURACY OR COMPLETENESS OF THE EVOSUS SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EVOSUS SERVICES ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD-PARTY RIGHTS. EVOSUS DOES NOT WARRANT THAT THE EVOSUS SERVICES WILL MEET ALL OF YOUR REQUIREMENTS OR THAT ITS OPERATIONS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECT WITHIN THE EVOSUS SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, REPRESENTATION OR ADVICE GIVEN BY EVOSUS SHALL CREATE A WARRANTY WITHOUT A WRITING SIGNED BY EVOSUS REFLECTING THE CREATION OF SUCH WARRANTY.

  9. LIMITATION OF LIABILITY

    IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE EVOSUS SERVICES, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF DATA OF ANY KIND, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE SHALL NOT BE LIABLE FOR DAMAGES OF ANY TYPE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OR INABILITY TO USE THE EVOSUS SERVICES, INCLUDING BUT NOT LIMITED TO DAMAGES ALLEGEDLY ARISING FROM THE COMPROMISE OR LOSS OF YOUR LOGIN CREDENTIALS OR FUNDS, OR LOSS OF OR INABILITY TO RESTORE ACCESS FROM YOUR BACKUP, OR FOR MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, DEFECTS AND/OR ERRORS IN THE TRANSMISSION OF TRANSACTIONS OR MESSAGES TO THE NETWORK OR SERVER, OR THE FAILURE OF ANY MESSAGE TO SENT OR TO BE RECEIVED BY THE INTENDED RECIPIENT IN THE INTENDED FORM. FURTHER, WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN ANY EVENT, THE MAXIMUM LIABILITY OF US TO YOU SHALL NOT EXCEED THE NET AMOUNT OF FEES PAID BY YOU THROUGH THE SERVICE DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM.

  10. INDEMNITY

    YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD EVOSUS, OUR SUBSIDIARIES AND OUR AFFILIATES, AND THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, AGENTS, PARTNERS, AND EMPLOYEES, HARMLESS FROM AND AGAINST ANY DIRECT OR THIRD-PARTY CLAIMS, LOSSES, LIABILITIES, COSTS, EXPENSES, DAMAGES, OR DEMANDS, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES DUE TO, RELATING TO, OR ARISING OUT OF (A) YOUR ACCESS TO OR USE OF THE EVOSUS SERVICES IN VIOLATION OF OUR TERMS; (B) OUR PROVISION OF THE EVOSUS SERVICES; (C) YOUR USER GENERATED MATERIAL; (D) YOUR BREACH OR ALLEGED BREACH OF ANY REPRESENTATIONS OR WARRANTIES MADE BY YOU HEREUNDER OR YOUR VIOLATION OF ANY OTHER PROVISION OF THESE TERMS; OR (E) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, EVOSUS MAY SELECT ITS OWN LEGAL COUNSEL TO REPRESENT ITS INTERESTS WHEN DEFENDING AGAINST DIRECT OR THIRD-PARTY CLAIMS OR DEMANDS, AND YOU MUST (I) REIMBURSE EVOSUS FOR ITS COSTS AND ATTORNEYS’ FEES IMMEDIATELY UPON REQUEST AS THEY ARE INCURRED, AND (II) REMAIN RESPONSIBLE TO EVOSUS FOR ANY LOSS, LIABILITY, COST, EXPENSE, CLAIM, DAMAGES, OR DEMAND IDENTIFIED IN THIS SECTION.

  11. GENERAL TERMS

    a.  Equitable Relief

    You acknowledge that damages may be an inadequate remedy if you or anyone under your direction or control breaches or threatens to breach these Terms, and that any such breach may cause us significant and irreparable injury and damage. Accordingly, you acknowledge that Evosus shall be entitled, without waiving any additional rights or remedies otherwise available to it at law or in equity or by statute, to seek injunctive relief in such event without the necessity of posting a bond.

    b.  Notice

    All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the second day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth in the Sign-Up Process.

    c.  Assignment

    You may not assign, delegate, or transfer these Terms, by operation of law or otherwise, without our prior written consent, but Evosus may freely assign or transfer these Terms without restriction. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Notwithstanding the foregoing, either party may, without consent, assign these Terms to any successor to all or substantially all its business that concerns these Terms (whether by sale of assets or equity, merger, consolidation or otherwise). Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns. Unless expressly provided otherwise herein, any prior consent of Evosus that is required before you may take an action may be granted or withheld in our sole and absolute discretion.

    d.  Choice of Law; Venue

    Any claim arising under or relating to these Terms shall be governed by the laws of the State of Washington without regard to conflict of laws. Each Party hereby agrees that the courts located in Clark County of the State of Washington shall have sole jurisdiction and venue for all disputes and litigation arising under or relating to these Terms. In the event any suit or action is filed to enforce or interpret the terms and obligations of these Terms, the prevailing Party shall be entitled to its reasonable attorney fees and costs, including reasonable post-judgment attorney fees incurred in collection efforts.

    e.  Force Majeure

    Neither Party will incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of these  Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, pandemic, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Customer equipment, loss and destruction of property, but the inability to meet financial obligations is expressly excluded.

    f.  Severability; Waiver

    If any term, condition, or provision in these Terms is found to be invalid, unlawful, or unenforceable to any extent, the Parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in these Terms. If the Parties fail to agree on such an amendment, such invalid term, condition, or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law. The parties agree to negotiate substitute language to nearly replace any part of these Terms that is found to be invalid or unenforceable.

    Any waiver of the provisions of these Terms or of a Party's rights or remedies under these Terms must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of these Terms or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such Party's rights under these Terms and will not in any way affect the validity of the whole or any part of these Terms or prejudice such Party's right to take subsequent action. Except as expressly stated in these Terms, no exercise or enforcement by either Party of any right or remedy under these Terms will preclude the enforcement by such Party of any other right or remedy under these Terms or that such Party is entitled by law to enforce.

    g.  Entire Agreement

    These Terms, together with our Privacy Policy, Service Level Agreement and EULA: LOU® constitute the complete and exclusive understanding and agreement between you and Evosus relating to the subject matter hereof, and supersede all prior understandings, proposals, agreements, negotiations, and discussions between the parties, whether written or oral.

    h.  Amendments

    These Terms may only be amended, modified, or supplemented by an agreement in writing agreed upon by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.