Terms of Service - LOUcommerce

These LOUcommerce Terms of Service (“LOUcommerce Terms” or “Terms”) are a binding agreement between Evosus, Inc. (“Evosus,” “we” or “us”) and you as an Evosus client and govern your use of our LOUcommerce add-on service (“LOU ommerce”). These LOUcommerce Terms are governed by and part of the Terms of Service - LOU® between you and Evosus for your use of the Evosus Services. Additional, separate terms and conditions apply to your use of LOU Ecommerce, including without limitation the LOU API Addendum, the Evosus® Privacy Policy, and our Data Processing Addendum, as well as our Service Level Agreement or SaaS End User License Agreement, as applicable, each of which are incorporated into these LOUcommerce Terms by this reference. Capitalized terms not defined herein have the meaning given in the Terms of Service – LOU.

LOUcommerce

LOUcommerce is an Evosus Service available on a subscription basis as an add-on service to existing Evosus clients, whereby Evosus builds and hosts an e-commerce website for the Evosus client. Evosus offers LOUcommerce on a subscription basis, and your subscription to LOUcommerce also includes access to LOU API subject to the LOU API Addendum (incorporated herein by this reference). You are solely responsible for the content and operation of your LOUcommerce website, including but not limited to the lawful collection and processing of personal information via your LOUcommerce website. You understand and agree that your LOUcommerce website may not be integrated with your other Evosus Services and, as such, you are solely responsible for managing all data transfers and updates between your LOUcommerce website to your use of the SaaS or other platforms as needed to fulfill e-commerce transactions.

SELECTION & ACCEPTANCE

From your LOU web app, you can select to add LOUcommerce to your Evosus Services. By selecting LOUcommerce from your LOU web app or using LOUcommerce in any manner, you agree to be unconditionally bound by these Terms. You must be of legal age and capacity to form a binding contract to accept these Terms. These Terms will remain in effect while LOUcommerce is selected through your LOU web app or you otherwise use LOUcommerce. If you do not agree with any provision of these Terms, do not access or use LOUcommerce. You acknowledge that we may make changes to LOUcommerce at any time. If you have any questions, please contact us via email at support@evosus.com.

ELIGIBILITY

To use LOUcommerce, you must be an existing Evosus client using our LOU Enterprise Plan and Evosus Payments to take orders on your e-commerce website. Additionally, you must be doing business in the United States and be of legal age and capacity to be bound by these Terms. LOUcommerce may only be used to process payments outside of Evosus Payments subject to the Outside Payment Fee (defined below) and only as expressly permitted in the Agreement (defined under Terms of Service below). Like all Evosus Services, LOUcommerce must be used for business activities in the United States, and you must meet all eligibility conditions set forth in the Terms of Service - LOU®. By selecting to use LOUcommerce, you represent and warrant that the foregoing statements are true and accurate, and that you have read, understood, and agree to be bound by these Terms and any other terms and conditions that apply to your use of LOUcommerce.

FEES AND PAYMENTS

To access and use LOUcommerce, you must pay the one-time applicable activation fee and you agree to pay the monthly subscription fees posted for LOUcommerce as shown on your LOU web app. Evosus Services which provide you with customizations of code or website content will be offered subject to availability and are billed at the then-current hourly rate posted on the LOU web app or otherwise communicated to you before you incur such fees (“Hourly Fees”). Additionally, if you use LOU Ecommerce for any payment that is not processed through Evosus Payments, you will incur and agree to pay a fee equal to 0.75% of the total dollar amount of the payment including price, shipping, tax, and all other charges and fees (“Outside Payment Fee”). Your monthly subscription fee and any Outside Payment Fee or Hourly Fees (collectively, “LOUcommerce Fees”) are due and payable on a thirty (30) day billing cycle. Your payment of LOUcommerce Fees also covers your one-time activation fee and monthly subscription fees for LOUcommerce. You agree to be charged and to pay all LOUcommerce Fees as Add-on Fees under the Terms of Service - LOU®. If you terminate this Addendum, you will not be refunded any Add-on Fees for the month in which you terminate. All fees shall be paid in U.S. Dollars. LOUcommerce Fees are subject to change from time to time at our sole discretion. Evosus will notify you in writing before implementing a change in LOUcommerce Fees.

LICENSE

Subject to these Terms, Evosus hereby grants you a limited, non-exclusive, non-assignable, non-transferable, revocable subscription and license to use LOUcommerce to build and host your e-commerce website. You may use LOUcommerce only as expressly permitted by these Terms. Violation of these Terms may result in the suspension or termination of your use of LOUcommerce. Without limiting the foregoing, Evosus reserves the right in our sole discretion to approve, disapprove, grant, or revoke access of any User to LOUcommerce in whole or in part at any time and for any reason with or without notice.

ACCESS

Evosus will use commercially reasonable efforts to maintain the availability of your LOUcommerce website. You agree and understand that there will be times when your LOUcommerce website will not be available, such as scheduled maintenance times, outages, emergency maintenance, or unavailability caused by software, hardware, clients, or other users, or causes beyond our reasonable control. We will make commercially reasonable efforts to notify you of planned downtime and unavailability of your LOUcommerce website. Evosus is not liable for any delays, interruptions, or other transmission errors resulting from any lack of access to your LOUcommerce website or caused by your device, your internet or wireless service provider, or other Evosus clients or website visitors.

ACCURACY

Occasionally there may be information available on your LOUcommerce website that contains typographical errors, inaccuracies or omissions related to product descriptions, pricing, promotions, offers, availability, and other topics. Evosus has no obligation to update, amend, or clarify information on your LOUcommerce website, including without limitation pricing information, except as required by law. No specified update or refresh date should be taken to indicate that all information on the LOUcommerce website has been modified or updated.

We reserve the right to disable your access to LOUcommerce or your LOUcommerce website 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. If your access is terminated by any means, we reserve the right to delete your information in accordance with our Privacy Policy and these Terms.

CLIENT CONTENT

Any text, software, scripts, graphics, photos, sounds, music, videos, logos, audiovisual combinations, interactive features and other materials that you contribute to your LOUcommerce website is, and shall remain, your “Client Content.” By transmitting or submitting any Client Content to us, 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 you have permission from any third party whose personal information or intellectual property is comprised in the Client Content; (iii) free of viruses, adware, spyware, worms or other malicious code; and (iv) all personal information within such Client Content will at all times be processed in accordance with our Privacy Policy.

You shall retain all intellectual property rights and ownership to your Client Content. No transfer of ownership is created between you and us, for your Client Content or vice versa. Without limiting the foregoing, so that we can operate LOUcommerce and other Evosus Services effectively, you hereby grant us a perpetual and irrevocable, worldwide, fully paid-up and royalty-free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, to your Client Content as well as all modified and derivative works thereof in connection with LOUcommerce and other Evosus Services (“Client Content License”). You represent that you have the necessary rights to grant us this Client Content License for any Client Content that you provide to Evosus, both directly and indirectly. To the extent permitted by applicable laws, you hereby covenant not to assert against us any moral rights you may have in any of your Client Content. You agree that we may use your Client Content for marketing and promotions of LOUcommerce and other Evosus Services. The rights you grant in the Client Content License are to operate, promote, and improve LOUcommerce and your LOUcommerce website, and to develop or improve the Evosus Services.

EVOSUS CONTENT

Except for Client Content, your LOUcommerce website and any text, software, scripts, graphics, photos, sounds, music, videos, logos, Intellectual Property (as defined in the LOU Terms of Service), audiovisual combinations, interactive features and other materials you may view on or access through your LOUcommerce website is “Evosus Content.” Evosus hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to use the Evosus Content for the sole purpose of using LOUcommerce in accordance with these Terms of Service (the “Evosus License”). Neither the Evosus License nor any other provision hereof shall grant you any rights in the Evosus Content, LOUcommerce, or other Evosus Services except as specifically set forth above. You shall not: (i) permit any third party to access LOUcommerce; (ii) create derivate works based on LOUcommerce; (iii) copy, frame or mirror any part of the content of LOUcommerce, other than copying or framing for your internal business purposes; (iv) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code or trade secrets for LOUcommerce; or (v) access LOUcommerce in order to build a competitive product or service. You may only display, download, or print Evosus Content for the purpose of using LOUcommerce or as an internal or personal business resource. 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 Evosus Content without the prior written permission of Evosus. The Evosus License shall be for the term of these LOUcommerce Terms only.

ACCEPTABLE USE

You agree not to: (i) rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer LOUcommerce or any portion thereof (including Evosus Content) or use LOUcommerce or your LOUcommerce website in any manner not expressly authorized by these Terms; (ii) copy, reverse engineer, translate, port, modify, or make derivative works of any portion of LOU Ecommerce; (iii) violate or attempt to violate the security features of LOUcommerce or your LOUcommerce website; (iv) use any device, software, or routine to interfere or try to interfere with the proper working of LOUcommerce or any activity being conducted via the Evosus Services; or (v) use or try to use any device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Evosus Services other than the search engine or search agents that we make available via the Services and the generally available third-party web browsers. Tampering with your LOUcommerce website or other Evosus Services, conducting fraudulent activities thereon, and all other illegal activities are prohibited and may subject you to legal action and/or termination of your access to LOUcommerce and/or other Evosus Services. If you engage in the foregoing activity, you may face civil or criminal liability. We will investigate occurrences that may involve such violations. We may involve or cooperate with law enforcement authorities in prosecuting Users who are involved in such violations.

USE RESTRICTIONS

Using LOUcommerce does not authorize you to use any Evosus Services (including Evosus Content) in any manner other than specifically authorized by these Terms. You may not use LOUcommerce or the Evosus Content for any purpose not expressly stated in these Terms, including in any way that might confuse or disparages us. The permissions described herein will terminate automatically if you breach any of these Terms.

Without limiting the foregoing, you are strictly prohibited from using LOUcommerce: (i) in a manner that violates any applicable law, rule or regulation, including without limitation the U.S. CAN-SPAM Act, the Canadian Anti-Spam Legislation, the U.S. Telephone Consumer Protection Act, or the Children’s Online Privacy Protection Act, each as amended from time to time; (ii) to promote any goods or services or send communications that are illegal in the place offered to consumers; (iii) to advertise or promote adult services, illegal gambling, counterfeit or pirated goods or services, or violate any securities or commodities regulations (such as to support a “pump and dump” scheme); (iv) to defraud, deceive or mislead anyone; (v) to communicate or transmit content that is defamatory, dishonest, obscene, sexually explicit, pornographic, vulgar or offensive; (vi) to promote or engage in discrimination, racism, harassment or hate speech against any individual or group; or (vii) to threaten or promote violence.

RIGHTS RESERVED

All rights not expressly granted herein are reserved by Evosus. You acknowledge that all intellectual property rights within LOUcommerce remain the property of Evosus and nothing within these Terms will act to transfer any of these intellectual property rights to you.

PRIVACY

Client is solely responsible for the Personal Information Client collects and processes through LOUcommerce as part of the Client Content. Client determines the categories of Personal Information Client collects and how the Client will use that data according to the Client’s privacy practices. Client, not Evosus, is responsible for compliance with applicable privacy and data protection laws and regulations applicable to Client’s e-commerce website. Evosus will only process Personal Information contained in Client Content as a service provider to the Client and pursuant to the Evosus Data Processing Addendum, incorporated herein by this reference.

The information contained on and processed through your LOU Ecommerce website may be collected, processed, or monitored by Evosus to provide, analyze, support, and improve the Evosus Services, and for other purposes as permitted in these Terms and our Privacy Policy (incorporated herein by this reference). LOUcommerce is provided through our servers located and maintained in the United States. Any Personal Information collected or processed through your LOUcommerce website will be transferred to our servers in the United States and maintained there indefinitely. By accessing or using LOUcommerce, you acknowledge that you have received, read in full, and consent to our Privacy Policy.

TERMS OF SERVICE

These Terms are subject to the terms and conditions set forth in the Terms of Service - LOU® between you and Evosus in all respects. As used in these Terms, the “Agreement” means these Terms, the Evosus® Privacy Policy, and the Terms of Service - LOU® which includes, without limitation, the Service Level Agreement and SaaS EULA, as applicable, and all agreements and documents governed thereunder.

SECURITY

You agree to develop and maintain your LOUcommerce website in a secure manner. Your LOUcommerce website must use reasonable security measures to protect the data of your Users, including without limitation that your network, operating system, and the software of your servers, databases, and computer systems (collectively, "Systems") must be properly configured to securely operate your LOUcommerce website and store content collected through your LOUcommerce website. You must adopt and maintain a process to detect and respond to vulnerabilities in your LOUcommerce website.

Evosus may use technology to detect, prevent, or limit the impact of any issues caused by your LOUcommerce website (before, after, or instead of suspension of your access). You agree to permit Evosus access to your LOUcommerce website as we deem necessary to monitor your compliance with the Agreement. You further agree to respond to any questions from Evosus about your compliance with the Agreement. Evosus reserves the right to restrict or terminate your access to LOUcommerce or perform an audit (including by hiring an independent auditor acting on our behalf) of your LOUcommerce website if you fail to provide adequate information or materials to verify your compliance with the Agreement. Without limiting the foregoing, (i) upon request by Evosus, you will provide us (or an independent auditor acting on our behalf) with up to two full-feature client account-level instances to access your LOUcommerce website as requested by Evosus to verify your compliance with the Agreement, and (ii) Evosus expressly reserves the right to fully audit your LOUcommerce website to verify your compliance with the security and privacy obligations set forth in the Agreement.

In the event of a data breach involving your LOUcommerce website or any data collected through your LOUcommerce website, you will promptly contact Evosus at support@evosus.com and provide details of the data breach. You agree to refrain from making public statements (e.g., press, blogs, social media, bulletin boards, etc.) without prior written and express permission from Evosus in each instance as it relates to LOUCommerce. The rights and requirements of this section (Security) will survive for five (5) years following any termination of the Agreement.

THIRD-PARTY CONTENT AND SERVICES

Evosus may use content or services owned by third parties to enhance your LOUcommerce website or experience. Evosus is not responsible for any content or services not owned by us. We are under no obligation to ensure that such content or services are error-free, accurate or up-to-date or fulfill any particular purpose. We may (but are not obligated to) review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display the third-party content or services at any time or for any reason without notice to you. You are solely responsible for compliance with any such third-party terms or policies by you and your LOUcommerce website, and we may suspend or stop providing LOUcommerce to you if you violate such terms or policies.

LINKS TO OTHER WEBSITES

Evosus or you may provide links to other websites from your LOUcommerce website. In either case, Evosus is not responsible for the content of any other websites, nor do we make any representations about the content or accuracy of material on any other websites. Inclusion of any linked website on your LOUcommerce website does not imply our approval or endorsement of the website. Any concerns regarding any such website, service or resource, or any hyperlink thereto, should be directed to the website’s owner or operator.

TERM AND TERMINATION

These Terms shall commence on the date you select or first access LOUcommerce and shall remain in effect until the earlier of the date you de-select LOUcommerce via your LOU web app, terminate the Evosus Services, or terminate the Agreement. Evosus may terminate these Terms at any time and for any reason, with or without notice to you. Evosus will delete your LOUcommerce website thirty (30) days following termination. Prior to such deletion, you may download your Client Content from your LOUcommerce website to use it for any lawful purpose. Evosus will not assist you in downloading, porting, or transferring your Client Content. Upon termination of these Terms: (i) the rights and licenses granted to you herein shall terminate as to the terminated rights; (ii) you shall cease all use of LOUcommerce; (iii) Evosus may at its sole discretion remove and/or purge your data and any other information related to providing you LOUcommerce; and (iv) you must comply with any Evosus instruction to return or delete any data accessed or obtained through LOUcommerce. Neither party will be liable to the other for any damages resulting solely from termination of these Terms.

ENTIRE AGREEMENT

These Terms and any documents incorporated herein by reference constitutes the entire agreement between you and Evosus regarding LOUcommerce and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, concerning the subject matter of these Terms. If any provision of these Terms is found to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable to the maximum extent possible.

CHANGES & REVISIONS

EVOSUS MAY CHANGE OR DISCONTINUE THE AVAILABILITY OF LOUCOMMERCE IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON WITH OR WITHOUT NOTICE. We may also impose limits on certain features or services or restrict your access to some or all of LOUcommerce. We may release subsequent versions of LOUcommerce and require that you use those subsequent versions, at your sole cost and expense. Any version of LOUcommerce designated as "preview", "pre-release" or "beta" ("Preview"), may not work in the same way as a final version. We may change or not release a final or commercial version of a Preview in our sole discretion.

Evosus reserves the right to revise these Terms without notice at any time. If we revise these Terms, we will update this posting. Your continued use of LOUcommerce following the posting of changes constitutes your acceptance of such changes. You further agree that in the event any portion of these Terms are found to be unenforceable, the remainder of these Terms shall remain in full force and effect and the otherwise unenforceable portion shall be amended so as to be enforceable to the greatest extent permitted by law.