Terms of Service
Effective Date: March 11th 2019
To make these Terms of Service easier to read, the services we offer through the Site are called the “Services.” All references to “EVR” shall refer to Oakland Design Collective LLC, a California limited liability corporation dba EVR. The terms “you,” “your,” and “yours” refer to you, the visitor to the Site, the App or user of the Services. The terms “EVR,” “we,” “us,” and “our” refer to EVR, and its successors and assigns.
AGREEMENT TO TERMS OF SERVICE
- By registering for and/or using the Services in any manner, including, but not limited to, visiting, browsing or making purchases through the Site, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site or through the Services by us, each of which is incorporated by reference and each of which may be updated by us from time to time. If you do not accept these Terms of Service, you are not permitted to, and you must not, access or use the Services or purchase subscriptions or products from us.
- Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference. IF YOU HAVE SIGNED UP FOR AN EVR SUBSCRIPTION OR OTHER AUTOMATICALLY RENEWING SUBSCRIPTION SERVICE, PLEASE READ THE “AUTO-RENEWALS AND RECURRING BILLING FOR KNIFE PLANS AND OTHER SUBSCRIPTION SERVICES” SECTION BELOW.
- IMPORTANT: WHEN YOU AGREE TO THESE TERMS, YOU AGREE TO RESOLVE YOUR DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION, UNLESS YOU OPT-OUT OF ARBITRATION WITHIN 30 DAYS OR THE DISPUTE IS EXCLUDED FROM ARBITRATION, AS FURTHER DESCRIBED IN THE “DISPUTES” SECTION BELOW. PLEASE REVIEW THE DISPUTES SECTION BELOW FOR DETAILS ON ARBITRATION AND OPTING-OUT.
You represent and warrant that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Services with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Services. If you are under 18 years of age and have not received such permission from your parent or legal guardian, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change our eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
To sign up for the Services, you must register for an account on the Services (an “Account”). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a username a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including, but not limited to, any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
For purposes of these Terms of Service, the term “Content” includes, without limitation, information, data, text, photographs, illustrations, videos, audio clips, artwork, interfaces, products, written posts and comments, software, scripts, graphics, interactive features and other content generated, provided or otherwise made accessible on or through the Services. While we try to make sure that all Content contained in the Services (other than any user-generated content, if applicable) is correct, it is not intended to amount to authority or advice on which reliance should be placed. Information made available through the Services is not a substitute for information from experts or professionals in the applicable area. You acknowledge that all Content accessed by you while using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
NOTICES AND RESTRICTIONS
The Services may contain Content specifically provided by us or our partners and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information and restrictions contained in any Content accessed through the Services. You shall not sell, license, rent or otherwise use or exploit any Content for commercial use or in any way that violates any third-party right. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services as contemplated by us and these Terms of Service is expressly prohibited without prior written permission from us.
EVR, Never A Dull Moment, Subscribe to Sharpness, and other EVR trademarks, service marks, graphics and logos used in connection with the Services are trademarks or registered trademarks of EVR (collectively “EVR Marks”). Other trademarks, service marks, graphics and logos used in connection with the Services are the trademarks of their respective owners (collectively “Third-Party Marks”). The EVR Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of EVR or the applicable trademark holder.
The Content, as well as the design, structure, selection, coordination, expression, “look and feel” and arrangement of the Services, are owned, controlled, and licensed by EVR or its licensors, unless otherwise indicated. Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services.
AVAILABILITY OF CONTENT
We do not guarantee that any Content will be made available on the Site or through the Services. We reserve the right, but do not have any obligation, to (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) remove or block any Content from the Services.
Any Content that is submitted to us or to the Services by users, or otherwise added, uploaded, distributed or posted to the Services, whether publicly or privately transmitted, including, without limitation, product reviews, survey responses and comments (“User Content”), is the sole responsibility of the person who originated such User Content. User Content also includes Content provided by users through third-party services such as a user’s social media account (e.g., Facebook, Instagram, Twitter, etc.) if such Content mentions, tags or otherwise interacts with EVR, the Services or any of our products or services. You represent that all User Content submitted by you is accurate, complete, up-to-date and in compliance with all applicable laws, rules and regulations. User Content that you submit must not: (i) contain any content that infringes intellectual property rights, data protection or privacy rights of an individual; (ii) be defamatory or threatening; (iii) impersonate any person or entity; (iv) contain unauthorized advertising; or (v) transmit or distribute any virus and/or other code that has contaminating or destructive elements. We make no representations, warranties or guarantees with respect to any User Content that you access on or through the Services.
By submitting User Content through the Services, you hereby grant us a worldwide, perpetual, irrevocable, non-exclusive, sub-licensable (through multiple tiers), fully paid, royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), edit, modify and make derivative works from your User Content (including, without limitation, your name and likeness, photographs and testimonials) for any purpose whatsoever, commercial or otherwise, without compensation to you. You also hereby do and shall grant each user of the Site and/or the Services a non-exclusive, perpetual license to access your User Content through the Site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. For clarity, the foregoing license grants to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third-party rights, including, without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights or any other intellectual property or proprietary rights.
Any feedback, reviews, comments, suggestions or recommendations for modifications, improvements or changes to the Services that you provide to us (“Feedback”) shall be solely owned by us (including all intellectual property rights therein and thereto). You hereby irrevocably assign to us and agree to irrevocably assign to us all of your right, title and interest in and to all Feedback, including, without limitation, all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect and maintain our intellectual property rights and other legal protections for the Feedback.
We respect the intellectual property rights of others, and we ask that you to do the same. It is the policy of EVR to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Site, or are available on any Services, in a way that constitutes copyright infringement, please contact EVR at the address below and provide the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed, (iii) a description of where the material that you claim is infringing is located on the Site; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
EVR’s designated agent for notice of copyright infringement can be reached at:
3542 Fruitvale Avenue #155
Oakland, CA 94602-2327
Phone: (510) 502-3988
RULES OF CONDUCT
- As a condition of use, you agree not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
- You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third-party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; (vii) distribute information you know is false, misleading, untruthful, unlawful or inaccurate; (viii) upload any software viruses or any other computer codes, files or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party; or (ix) otherwise take any action in violation of our guidelines and policies.
- You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including, without limitation, any application), except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate or otherwise create derivative works of any part of the Services; or (iii) copy, rent, lease, distribute or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
- We also reserve the right to access, read, preserve and disclose any information or content as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including, without limitation, the investigation of potential violations hereof; (iii) detect, prevent or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of us, our users and the public.
- All orders of our products or product subscription plans must be for personal use only. By purchasing our products or product subscription plans, you hereby agree not to resell or distribute such products for any commercial purposes. If we have reason to believe that your order is not for personal use, we reserve the right to reject or cancel any order that you place.
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third-party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
ORDERING, DELIVERY, PAYMENTS AND BILLING
PAID SERVICES AND TERMS OF SALE
Certain of our Services, including the purchase of any products or subscriptions (such as knife plans) offered by us, may be subject to payments now or in the future (the “Paid Services”), which in certain cases may include recurring, automatically renewing payment obligations (as further described in the “AUTO-RENEWALS AND RECURRING BILLING FOR KNIFE PLANS AND OTHER SUBSCRIPTION SERVICES” section below). Please see our Help / FAQ for a description of the current Paid Services, our shipping terms, and cancellation and refund policies. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms of Service.
You may place an order for Paid Services at any time (subject to any planned or unplanned downtime). You may check and correct any input errors in your order up until the point at which you submit your order to us by clicking the “Place My Order” button on the checkout page. An order submitted by you constitutes a legally binding offer given by you to us to purchase the Paid Services specified in that order, subject to these Terms of Service, at the price and on the terms stated when you sign up or place your order. All orders are subject to acceptance by us. Your order will not be considered accepted until we have received payment of the purchase price of your order. We may send an acknowledgment of our receipt of your order to the email address you provide, after your payment for the order has been processed, so that you may print the information for your records. Unless otherwise stated at the time you place your order, risk of loss passes to you upon delivery to the shipping address you specified when you placed the order, provided full payment of all sums due in respect of the product(s), including any delivery charges, has been received.
Our products and services, including, without limitation, our Paid Services, are for your personal, non-commercial use, and once delivered to you may not be resold, redistributed, exported or used for any other commercial purpose. The rights you have under these Terms of Service are personal to you and are non-transferable.
Please note that we cannot offer refunds, exchanges or customer service for products that have been acquired from an unauthorized reseller, including, but not limited to, any seller on Amazon, eBay or similar online marketplaces.
The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
SUBSCRIPTION TERMS OF SALE
Paid Services that involve subscription knife plans (“Subscriptions”) ARE RENTAL PLANS FOR KNIVES, NOT KNIFE PURCHASES. At the commencement of Subscriptions, you hereby authorize us to charge your Billing Account for a replacement fee for the knives included in your Subscription as set forth in our current Help / FAQ, plus any applicable sales taxes (“Replacement Fee”); provided that we will only charge the Replacement Fee in the circumstances set forth in the “TERMS OF RENTAL” section below.
TERMS OF RENTAL
During the term of your Subscription, you are responsible for loss, destruction or damage to the Subscription knives, you agree to treat the Subscription knives with due care, and return them in the same condition as was delivered to you, with the only exception being conditions resulting from normal wear and tear. Normal wear and tear encompasses normal dulling of the knife edge, minor chips, minor scratches and minor stains or other minor damage. If you return a Subscription knife that is damaged beyond normal wear and tear, then you agree that we shall charge your Billing Account for repairing or replacing the knife, as determined at our sole discretion, up to the applicable Replacement Fee.
You agree to return the Subscription knives to EVR in the same packaging that the knife was delivered in, or in the equivalent packaging. Knives must be returned with a mail-by date within 30 days of receiving a new Subscription knife, or 30 days of cancelling your Subscription (the “Return Date”).
If you lose the provided return shipping label, you will be responsible for returning the item at your own expense by the Return Date, and providing us with a tracking number associated with the shipment.
If the Subscription knives are not mailed by you on or before the Return Date, we reserve the right to charge your Billing Account a late return fee as set forth in our current Help / FAQ. If you have not returned a Subscription knife within thirty (30) days after the Return Date, we reserve the right to recover the applicable Replacement Fee by charging your Billing Account, or by other means as necessary up to and including using outside payment collections agencies.
IMPORTANT NOTICE TO CONSUMERS:
AUTO-RENEWALS AND RECURRING BILLING FOR KNIFE PLANS AND OTHER SUBSCRIPTION SERVICES
Some of the Paid Services, such as the purchase of knife plans that involve delivery of sharpened knives on a regular basis to you, may consist of an initial period for which there is a one-time charge or a Trial Offer (as defined below), followed by recurring periodic charges as agreed to by you when you sign up for such auto-replacing products (“Subscription Services”). The Subscription Services may give you the ability to specify how regularly you would like to order any auto-replacing products. Unless you opt out of a Subscription Service, which can be done via the methods described below, the Subscription Services that you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term you originally selected, at the then-current non-promotional rate. More information on Subscription Services can be found at our Help / FAQ page. By choosing a Subscription Service, you acknowledge that such Subscription Service has an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to the effective date of cancellation of such Subscription Service. All recurring payments relating to Subscription Services are fully earned upon payment.
To change or cancel your Subscription Services at any time, go to your Account on the Site, or email us at email@example.com. If you cancel a Subscription Service, your subscription will not be renewed after your then-current subscription term expires. You must cancel your Subscription at least THREE (3) BUSINESS DAYS prior to the renewal date of your Subscription to avoid being charged for the subsequent subscription term (the “Cancellation Period”). Canceling after the Cancellation Period will result in your Billing Account being charged for an entire subsequent subscription term.
Subscription payments are nonrefundable and there are no refunds or credits for partially used subscription terms. Following any cancellation, however, your Subscription will be effective through the end of your current subscription term.
WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION, OR TO CHANGE YOUR PAYMENT METHOD OR SUBSCRIPTION SERVICES, GO TO YOUR ACCOUNT, OR CONTACT US AT THE EMAIL ADDRESS LISTED ABOVE.
CURRENT INFORMATION REQUIRED
You must provide current, complete and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date), and you must promptly notify us or our Payment Processor if your Payment Method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be made on your Account. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
CHANGE IN AMOUNT AUTHORIZED
If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. If, on receipt of such notice, you do not wish to continue with the purchase, you may cancel before the scheduled date of the transaction presuming you are cancelling within the Cancellation Period. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
REAFFIRMATION OF AUTHORIZATION
Your non-termination or continued use of a Paid Service (including, without limitation, Subscription Services) reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage or as otherwise described when you initially selected to use the Paid Service.
FREE TRIALS AND OTHER PROMOTIONS
Any free trial or other promotion that provides access to a Paid Service (a “Trial Offer”) must be used within the specified time of the Trial Offer. You will be required to have a valid Payment Method on file in order to initiate a Trial Offer. You must stop using a Paid Service before the end of the Trial Offer period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the Trial Offer period and are inadvertently charged for a Paid Service, please contact us at firstname.lastname@example.org. Trial Offers are one-time only for new customers and are limited to one per household. Additional terms and limitations may apply and will be more fully explained at the time you sign up for the Trial Offer. Any such additional terms and limitations are deemed part of these Terms of Service.
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your Account. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity provisions and limitations of liability.
WARRANTY DISCLAIMER AND RELEASE
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding which users gain access to the Services, or how you may interpret or use the Content. You release us and our officers, directors and employees from all liability arising out of or relating to your having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance or legality of material or Content contained in or accessed through the Services.
You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, WE AND OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.
You shall defend, indemnify and hold harmless us and our employees, contractors, directors, officers, suppliers and representatives from all liabilities, claims and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services or Content in violation of these Terms of Service, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
LIMITATION OF LIABILITY
TO THE GREATEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE OR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION) OR (III) FOR ANY DIRECT DAMAGES IN EXCESS (IN THE AGGREGATE) OF THE GREATER OF (A) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (B) $100.00. THESE LIMITATIONS WILL ONLY APPLY TO THE EXTENT PERMITTED BY LAW AND DO NOT APPLY TO DEATH OR PERSONAL INJURY RESULTING FROM OUR ACTS OR OMISSIONS OR TO LIABILITY RESULTING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Our goal is to provide you with great service, so we will try our best to resolve any disagreements that you have with us. If we cannot, then you and we both agree to resolve disputes related to your use of the Services or these Terms of Service (each, a “Claim”) in binding arbitration instead of court, except that (i) a Claim may be brought in small claims court if it qualifies for it and (ii) either party may bring suit in court to enjoin the infringement or other misuse of intellectual property rights.
- What is arbitration? Arbitration does not involve a judge or jury. Instead, a neutral person (the “arbitrator”) hears each party’s side of the dispute, and makes a decision that is finally binding on both parties. The arbitrator can award the same relief as a court could award, including monetary damages. While court review of an arbitration award is limited, if a party fails to comply with the arbitrator’s decision, then the other party can have the arbitration decision enforced by a court. If for any reason a Claim proceeds in court rather than in arbitration, you and we each waive any right to a jury trial.
- Can a Claim be part of a class action or similar proceeding? No. You agree to resolve your Claims with us solely on an individual basis, and not as part of a class, representative or consolidated action. We agree to do the same.
- What rules apply in the arbitration? The arbitration will be conducted under the American Arbitration Association (“AAA”) Consumer Arbitration Rules (the “AAA Rules”). The AAA Rules are available at www.adr.org or by calling 1-800-778-7879.
- How will the arbitration be conducted? How much does it cost? The arbitration will be conducted by the AAA or a comparable arbitration body in the event the AAA is unable to conduct the arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Unless the arbitrator finds your Claim frivolous, we will pay for all filing, administration and arbitrator fees if your Claim is for less than $10,000, and we will not seek our attorneys’ fees and costs if we prevail in the arbitration. The arbitration may be conducted in writing, remotely (e.g., by videoconference) or in-person in the county where you live (or at some other location that we both agree to).
- How do I start an arbitration proceeding? To begin an arbitration proceeding against us, send a letter requesting arbitration and describing your Claim to 3542 Fruitvale Ave #155 Oakland, CA 94602. If we request arbitration against you, we will give you notice at the email address or street address you provided.
- INSTRUCTIONS FOR OPTING-OUT OF ARBITRATION: If you do not want to agree to arbitrate your Claims as explained above, then you can opt-out of this arbitration agreement by notifying us of your decision in writing at 3542 Fruitvale Ave #155 Oakland, CA 94602. You must opt-out within 30 days of the date you first agree to these Terms or any updated Terms.
This Dispute Resolution section only applies to Claims between us and individual consumers, and is governed by The Federal Arbitration Act.
When you visit the Site, or send e-mails to EVR, you are communicating with EVR electronically. You consent to receive communications from EVR electronically. EVR may communicate with you by e-mail or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that EVR provides to you electronically satisfy any legal requirement that such communications be in writing. In addition, as part of the Services, EVR may send you notifications. You hereby consent to receive such notifications as part of the Services.
You agree that these Terms of Service combined with your act of using the Site and/or any Services have the same legal force and effect as a written contract with your written signature and satisfy any laws that require a writing or signature, including any applicable statute of frauds. You further agree that you shall not challenge the validity, enforceability or admissibility of these Terms of Service on the grounds that it was electronically transmitted or authorized. In addition, you acknowledge that you have had the opportunity to print these Terms of Service.
These Terms of Service are governed by the laws of the State of California without regard to its conflict of law provisions.
CHOICE OF FORUM
The exclusive jurisdiction for all Claims that are not subject to arbitration, including any Claims brought on behalf of a company or other legal entity, will be the state and federal courts located in the Northern District of California, and you and EVR each waive any objection to jurisdiction and venue in such courts.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend or discontinue the Services, in whole or in part, (including, without limitation, the availability of any feature, database or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will use commercially reasonable efforts to timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Subject to the Disputes section, your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.
ENTIRE AGREEMENT AND SEVERABILITY
These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
SMS, MMS AND OTHER TEXT MESSAGING
Some of our Services may allow you to receive SMS, MMS or other text message notifications from us (each, a “Text Message”). To the extent you voluntarily opt to have Text Messages from us sent directly to your mobile phone, the following terms apply:
In addition to any fee of which you are notified, your mobile provider’s standard message and data rates may apply to our confirmation Text Message and all subsequent Text Message correspondence according to your individual rate plan provided by your wireless carrier. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving Text Messages. Under no circumstances will we be responsible for any text messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number. If your carrier does not permit text alerts, you may not receive the Text Messages from us. You can opt out of receiving any further Text Messages from us by replying “STOP” to any Text Message you receive from us.
We will not be liable for any delays in the receipt of any Text Messages, as delivery is subject to effective transmission from your network operator. Text Message services are provided on an “AS IS” basis. Data obtained from you in connection with any Text Message services may include your cell phone number, your provider’s name and the date, time and content of your messages. We may use this information to contact you and to provide the Services you request from us.
Coupon codes have no cash value and cannot be redeemable for cash, and cannot be combined with any other offers. Limit one coupon code per order. Coupon codes generally expire and are no longer valid for redemption 30 days after their date of generation, but certain coupon codes may have their own redemption period as specified in connection with the coupon code itself. The unauthorized reproduction, resale, modification or trade of coupon codes is prohibited. Coupon codes are void where prohibited, taxed or restricted. EVR reserves the right to change or limit coupon codes in its sole discretion.
No agency, partnership, joint venture or employment relationship is created as a result of these Terms of Service and neither you nor EVR has any authority of any kind to bind the other in any respect.
Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given: (i) when received, if personally delivered or sent by certified or registered mail, return receipt requested; (ii) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.
Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation. Any use of the words “including”, “for example” or “such as” in these Terms of Service shall be read as being followed by “without limitation” where appropriate.
CONTACT INFORMATIONIf you have any questions about these Terms or the Services, please contact EVR at firstname.lastname@example.org.