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Terms of Service - LOU®

Last Updated November 7, 2024.

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, Data Processing Addendum, and EULA LOU® incorporated herein by reference, create a binding agreement between you and/or your company ( “you”, or “Client”) and Evosus. You and Evosus may be individually referred to herein as a “Party” and collectively as the “Parties”. Additional terms and conditions may be presented to you for your acceptance as a condition to access and use certain Evosus Services, each of which is incorporated into these Terms by this reference.

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 the individuals Client has authorized and are registered to use the Evosus Services, each of which is assigned a unique username and password to access and use the Evosus Services, regardless of whether such individual is actively using the Evosus Services at any given time. (“Users”) use LOU, in compliance with these Terms, the EULA: LOU®, LOU Ecommerce 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 Client, 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. 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 through 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.

    c. Add-On Services
    Evosus offers a menu of additional services such as LOU® Ecommerce, LOU® API, and services we provide through our third-party vendors (“Add-On Services”). Add-On Services are available to Clients in exchange for the fees stated on the LOU® dashboard or as otherwise disclosed to you by Evosus. Fees for Add-On Services are paid as Add-On Fees (see Section 3(d)). Your access to and use of Add-On Services is subject to the respective applicable terms and conditions for each Add-On Service as stated in the LOU® dashboard, each of which is incorporated into these Terms by this reference.

    If you select an Add-On Service that is not integrated into the Evosus Services, you are responsible for reviewing and accepting the third party’s terms and conditions and applicable privacy policies. If you opt in or choose an offer, promotion, discount and/or deal with any of our third-party vendors, partners or affiliates, you hereby agree and acknowledge that we may share your contact information for the third-party to contact you directly.

    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 to improve our business, analyze data and for internal business purposes. Please review our Privacy Policy for more information.

    e. 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 Service as well as any and all applicable terms of sale and/or terms of use as provided to you at the time of purchase.

  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 registers. 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 clients. We will explain which Evosus Services are available to you during the registration process.

    b. User Access
    You are responsible for all use of the Evosus Services by your Users and 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 before such User accesses 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.

  3. FEES AND PAYMENT

    Some Evosus Services are available for free while other Evosus Services are only available in exchange for the fees stated at the time you subscribe or otherwise select to receive such Evosus Services (in each case, the “Fees”). You agree to pay all of the Fees you incur for your use of the Evosus Services as provided in this Section 3. Your subscription begins on the day you sign up for Evosus Services and automatically renews every 30 days unless you cancel or change your subscription. Evosus reserves the right to change our subscription plans or the Evosus Services offered or adjust pricing in any manner and at any time.

    a. LOU Sign Up Fee
    By signing up for LOU®, you agree to pay a one-time, non refundable, Sign Up Fee (“Sign Up Fee”) required for access and creation of your LOU database. The Sign Up Fee includes up to five (5) hours of consulting via phone and/or screen-sharing software to assist with the onboarding process, at no additional charge . The Sign Up Fee may vary depending on the selected package.

    b. Fees for LOU® and Evosus Payments
    The Fees you will be charged for LOU® are determined by (i) the specific Evosus Services you purchase or to which you subscribe; (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 or services tier 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 additional Fees for these software updates.

    c. Evosus Payments Minimum Fee
    Users will be charged a service fee of $195 per 30-day billing period for Evosus Payments (“Evosus Payments Fee”), except that the 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.

    d. Add-On Fees
    If you subscribe to or purchase Add-On Services, you will incur additional Fees as stated at the time you select the Add-On Service (“Add-on Fees”). Unless otherwise stated at sign up, payment for an Add-on Fee is due upon signup for the Add-On Service. You may add or cancel Add-On Services at any time by logging into your account and using the administrative tools. New Add-On Services are available immediately upon selection. Unless otherwise stated on the LOU web app, cancellations of Add-On 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 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 Fees for LOU® and Evosus Payments, as applicable; (ii) the cost of the package or service tier you select (e.g., Foundation, Pro, or Enterprise) as described on the Pricing page on evosus.com; (iii) any applicable Add-On Fees; and (iv) at the time you sign up for LOU®, the one-time Sign up Fee. Additionally, if you do not go live on LOU within 60 days of the date you complete the account sign up process in LOU, an additional $200 every 30 days that your account is not live will be added to your Total Fees. 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 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 hereby expressly authorize Evosus to charge your payment method on file every thirty (30) days for the Total Fees due under these Terms, plus any sales and use taxes and any late fees or interest (as described below). All Fees shall be paid in U.S. Dollars.

    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. You agree that you are solely liable for any payment or credit card fraud, abuse, or unauthorized use by you or others.

    g. No 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 client, 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 Client or a User, in exchange for payment of the applicable Fees pursuant to Section 3, you have limited, royalty-free, non-assignable, and non-exclusive license to access and use the Evosus Services 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 to fit the number of Users you require. Any use of the Evosus Services not expressly permitted hereunder is strictly prohibited. Evosus reserves all rights not expressly granted hereunder. 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.

    At any time, you may, cancel, remove, or change your User Content 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 are 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.

    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

    Clients may have the option to access some of the Evosus Services via one or more mobile applications (the “App”). Evosus offers Clients some Apps in connection with certain Evosus Services for no additional charge, while other Apps are available to Clients 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 SERVICES

    a. Third-Party Payment Gateways
    Evosus uses third-party payment gateways (“Third-Party Payment Gateways”), including but not limited to TSYS, to process our Fees and other payments. By using Evosus Services, you hereby agree to the terms of use and privacy policy of the then-current Third-Party Payment Gateway. We are not liable for any issues arising from or related to your breach of any Third-Party Payment Gateway’s policies. We may, from time to time, change Third Party Payment Gateways, and shall provide you with written notice of such change. All information collected through our Third-Party Payment Gateway, such as credit card information, names, and addresses, may be accessible to us but will not be used by us. We are not liable for any data or security breach, or compromised personal information that is caused, directly or indirectly, by the Third-Party Payment Gateway.

    b. No Payment Processing
    You understand and agree that Evosus Services is not a payment processing service. Any transactions via the Evosus Services must be processed using a Third-Party Payment Gateway.

    c. Third-Party Content
    To enhance your experience, we may display, use, or link to content or services (“Third-Party Content”) owned or operated by third-party affiliates or partners (“Third Parties”). The Third Party is solely responsible for the Third-Party Content and service it provides to you, and we in no way guarantee the accuracy of the Third-Party Content and services or the Third Party’s compliance with its own terms of use and privacy policies. You should review any Third-Party agreements prior to the use of Third-Party Content. Evosus is under no obligation to ensure that Third-Party 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 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

    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. 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 Client.

    Evosus may limit, suspend, terminate, modify, or delete your account or access to the Evosus Services effective immediately and 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) we believe you have violated these Terms or any of our 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.

    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. The contents ownership, copyright, trademark, disclaimer of warranties, representations made by you, limitations of liability, and general provisions shall survive any termination of these Terms.

  8. DISCLAIMER OF WARRANTIES

    YOUR USE OF THE EVOSUS SERVICES IS AT YOUR OWN RISK. EVOSUS AND ITS EMPLOYEES, AGENTS, SUPPLIERS OR INDEPENDENT CONTRACTORS (THE “DISCLAIMING ENTITIES”) MAKE 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. TO THE FULLEST EXTENT PERMITTED BY LAW, EVOSUS DOES NOT WARRANT THAT THE EVOSUS SERVICES WILL MEET ALL OF YOUR REQUIREMENTS OR THAT ITS OPERATIONS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT ANY ERRORS 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 EVOSUS OR THE DISCLAIMING ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH ANY DISCLAIMING ENTITY OR THE EVOSUS SERVICES, OR ANY GOODS, SERVICES, OR INFORMATION PURCHASED, RECEIVED, SOLD, OR PAID FOR BY WAY OF THE EVOSUS SERVICES, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF THE DISCLAIMING ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

  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.

    With respect to LOU only, Evosus agrees to defend, indemnify, and hold you harmless from and against any and all costs, judgments, damages, or awards in lawsuits, proceedings or actions brought by any third party, and costs in connection with the defense thereof (including, without limitation, court fees and reasonable attorney's fees), resulting from any claim or allegation that LOU infringes any patent, copyright, trade secret or other proprietary right of any third Party ("IP Claims"). In the event any such IP claim is brought or threatened, or if Evosus deems that there is a material risk of an IP Claim, Evosus may, at its sole option and expense: (i) procure for you the right to continue your use of LOU; (ii) modify or amend LOU or infringing part thereof, or replace LOU or infringing part thereof with other software having substantially the same or better capabilities; or, (iii) if neither of the foregoing is commercially practicable, terminate this EULA. Notwithstanding the foregoing, Evosus assumes no liability for, any IP Claims to the extent arising from (a) use of a modified version of LOU, (b) the combination, operation or use of LOU with non-Licensor programs, data, methods or technology if such infringement would have been avoided without the combination, operation or use of LOU with other programs, data, methods or technology, or (c) unlicensed use of LOU. Evosus’s obligations apply only if you give us: (x) prompt written notice of the Claim; (y) sole control of the defense and settlement of such Claims; and (z) assistance when reasonably requested by Licensor. Evosus warrants to Client that it and its suppliers, partners, affiliates, and distributors, own the legal rights to LOU to provide LOU License herein. The Client's sole and exclusive remedy for breach of this warranty is the foregoing indemnification as provided for in these Terms.

  11. Export Regulation; US Government Rights

    The Evosus Services may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Evosus Services to, or make the Evosus Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), before exporting, re-exporting, releasing, or otherwise making the Evosus Services available outside the US. You are solely liable and responsible for any claims, fines, filings, proceedings, tariffs, taxes, and/or litigation that may arise from Your transfer, export, or re-export of any of the Evosus Services, with or without permission.

    The Evosus Services include commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are the US Government or any contractor therefor, you shall receive only those rights with respect to the Evosus Services as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, for the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, for all other US Government licensees and their contractors.

  12. 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. 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, clients 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.

    d. Assignment
    These Terms and the rights and obligations hereunder may not be transferred or assigned, in whole or in part, by you without Evosus’s written consent, not to be unreasonably withheld, but may be freely assigned or transferred by Evosus without restriction. Any attempt by you to assign or transfer these Terms, without such consent, will be null. 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. Notwithstanding the foregoing, without consent, you may assign these Terms to any successor to all or substantially all its business that concerns this Agreement (whether by sale of assets or equity, merger, transfer, consolidation, or otherwise). These Terms shall be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties hereto. To so assign these Terms, you must: (i) update the contact and other account information associated with your Evosus account to reflect the assignment, (ii) transfer all Client Content and other data associated with your account to the assignee, (iii) provide the assignee with access to your account, and (iv) contractually obligate the assignee to (a) accept and adhere to all applicable Evosus terms and conditions when prompted upon login or via use of the Evosus Services, (b) contact financial services at Evosus to register an Evosus Payments account, and (c) make all payments due to Evosus under these Terms and any other existing agreements between you and Evosus. Please contact our Support Center at 360.735.9510 ext. 2 or support@evosus.com if you or the assignee requires assistance.

    e. 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. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. 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 this Agreement ("Jurisdiction"). In the event any suit or action is filed to enforce or interpret the terms and obligations of this Agreement, the prevailing Party shall be entitled to its reasonable attorney fees and costs, including reasonable post-judgement attorney fees incurred in collection efforts.

    f. 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 Client equipment, loss and destruction of property, but the inability to meet financial obligations is expressly excluded.

    g. Severability; Waiver
    If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. 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 will not be construed or deemed to be a waiver of such Party's rights under these Terms and will not in any way affect the validity of 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.

    h. 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. 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.

    i. Consent to Electronic Signature
    By registering with Evosus, accessing or using the Evosus Services, or typing your name into any of our electronic forms and indicating your acceptance or clicking a box, you consent to (i) Evosus communicating with you electronically; (ii) receiving all applications, notices, disclosures, and authorizations (collectively, “Records”) from us electronically; and (iii) entering into agreements and transactions using electronic Records and signatures. We will use electronic documents for all communications, agreements, disclosures, authorizations, and other documents necessary to provide you with the Evosus Services. Federal law treats electronic signatures as having the same legal force and effect as if they were signed on paper by hand, and online contracts have the same legal force as signing an equivalent paper contract in ink. You must have a web-enabled device, connection to the internet, an active email account, and the ability to receive and read PDF files to conduct business with us electronically. You are responsible for keeping your own Records. If you require assistance with your Records or if you wish to receive Records in paper format or to withdraw your consent to receiving electronic records from us, please contact us at support.evosus.com. Agreements and transactions executed prior to this request will remain valid and enforceable.

    j. 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.