The undersigned company or individual, you on behalf of yourself or an entity that you represent (“Tester” or “You”), as the user of EVAS’s information technology services and any associated software, firmware, hardware, and websites (“Services”) that may still be under development or of less than intended utility, fitness, and/or security, and that are marked in the applicable documentation as “beta” (“Beta”), and EVAS LLC (“Supplier” or “EVAS”), also collectively parties or a party, agree that the Tester will participate in the EVAS’s testing program (“Beta Program”) under the terms of this Beta Program agreement (“Agreement”).
The Services are governed by the Terms of Service (TOS) agreement that can be found on the EVAS’s website. Any terms not otherwise defined in this Agreement shall have the meanings ascribed to such terms in TOS. In the event of any conflict between this Agreement and TOS this Agreement shall control.
AGREEMENT OF TESTER TO TEST AND REPORT
Tester agrees and permits the Supplier and its agents to contact the Tester and its employees. Tester further agrees: (i) to implement, deploy, and use Beta Services, and (ii) to report to Supplier and/or its agents any flaws, errors, bugs and/or other problems with Services, and (iii) upon Supplier’s request to provide comments and suggestions regarding the topics of EVAS’s interest, and (iv) to participate in surveys and similar activities as determined by EVAS.
Tester’s obligations and privileges will end after five (5) days upon a written request to EVAS for termination of this Agreement. Any of Your obligations under the TOS and/or any other agreement between You and EVAS will remain full force and effect after the termination of this Agreement. EVAS reservices the right to terminate the TOS at any time, including upon termination of this Agreement, for any reason. EVAS also reserves the right to terminate this Agreement at any time and without a prior notice.
Tester acknowledges that as a participant in the Beta Program, Tester may be given confidential trade secret information. Specifically, Tester agrees that the characteristics, performance, and potential delivery date of Services, the Services themselves, may contain confidential information that constitutes a trade secret of Supplier and/or a third party (“Confidential Information”). All Confidential Information must be conspicuously designated as “Confidential” in writing, if communicated in writing, or confirmed in writing within thirty (30) days of disclosure if disclosed orally. Tester acknowledges that this Agreement may induce Supplier to make such information available to Tester.
Tester acknowledges that disclosure of Confidential Information could cause serious and irreparable harm to Supplier and, as an essential term and condition of participating in the Beta Program, agrees to maintain all Confidential Information in strict confidence and not to disclose Confidential Information to any person or organization until the earlier of (i) the date on which Supplier first makes this information publicly available, or (ii) three (3) years after the date of this Agreement (“Non-Disclosure Period”). During the Non-Disclosure Period, Tester agrees not to disseminate, publish, or otherwise communicate any Confidential Information, except directly to Supplier or its designated agents, or with the express prior written consent of Supplier.
If Tester is a company, Tester agrees (i) to take all reasonable steps to see that its employees, consultants, officers, and agents guard against and prevent disclosure of Confidential Information, and (ii) to act in accordance with the confidentiality provisions of this Agreement. Tester further agrees that information will be available to its employees and officers strictly on a “need-to-know” basis. Tester will promptly destroy all supplied materials at the end of the period of the Beta Program, or upon the request of Supplier, whichever is earlier.
Tester acknowledges that Services, any of its copyrights, trademarks, and any other intellectual property rights in the Services are owned or licensed by Supplier. Tester acquires no ownership of Services or any part thereof from this Agreement and no right to use Services beyond the term of the Beta Program unless expressly approved by EVAS.
Tester has no right to copy Services or any part thereof beyond a regular backup copy for its own internal use, prepare derivative works or participate in development, manufacturing, marketing, or maintenance of Services or any part thereof, or of any competing product or service without EVAS’s prior express written permission. Tester may not provide any copy, bundle with other products or services, divert, resell, or sublicense to any other person or company the Services or any part thereof. Tester may not modify Services or any part thereof in any way. Tester has a limited, personal, non-transferable, non-exclusive license to use Services for the sole purpose of evaluating and testing the Services during the Beta Program.
RISKS FROM THE PRODUCT
Tester understands that the Services provided by or through EVAS may have errors and may produce unexpected results. Tester agrees that any use of the Beta Services, whether as part of this Beta Program or otherwise, will be entirely at Tester’s own risk, and Supplier makes no representations concerning the completeness, accuracy, security, compliance, or operation of such Services. Tester agrees that it is Tester’s sole responsibility to take all appropriate measures to protect the people, computing resources, information, and all assets. Tester agrees to indemnify and hold Supplier harmless from any damages or claims whatsoever, arising from the use or no use by You, Your End Users, and any third party of the Services provided by or through EVAS.
You acknowledge and agree that 911 services and text-to-911 services are not available for the Services and any product and service provided by or through EVAS that is in Beta. You, your End Users, and any third party will not be able to make a call or send a message to 911 emergency service. You must always have available alternative means for placing emergency calls and you should not rely at any time on Services for placing emergency calls or contacting the emergency service.
EVAS systems are designed with data protection and privacy in mind, and they are generally aligned to global privacy requirements. However, EVAS does not guarantee any compliance with any privacy and security regulation, including but not limited to GDPR, for the Services and any product and service provided by or through EVAS that is in Beta. You acknowledge and agree that some security and/or privacy features may not be available for the Services and any product and service provided by or through EVAS that is in Beta.
The Services, as well as any customer support from Supplier, are provided on “as is” basis and without any warranty, express or implied. Supplier specifically disclaims any implied warranties of noninfringement, merchantability, and fitness for a particular purpose. In no event will supplier, its partners, agents, service providers, licensors, and resellers be liable for any damages, including but not limited to any lost profits, lost savings or any incidental or consequential damages, whether resulting from impaired, lost, or failed data, software, firmware, hardware, any information technology or any other services, or any other cause whatsoever, even if Supplier is advised of the possibility of such damages, or for any other claim by Tester whatsoever, or for any third party claim.
INFORMATION PROVIDED BY TESTER
Supplier does not want to receive, and Tester agrees not to disclose to Supplier or its agents any information that is confidential or proprietary to Tester or others. Tester agrees that the contents of all oral and written reports to Supplier and any other materials, information, ideas, concepts, and know-how provided by Tester (including corrections to problems in the Services) become the property of Supplier and may be used by Supplier for all business purposes, without any accounting or any payment to Tester. Under no circumstances will Supplier become liable for any payment to Tester for any information that Tester provides, whether concerning the Services, or otherwise, no matter how such information is used or exploited by Supplier or anyone else.
Tester grants Supplier the right, to be exercised in Supplier’s sole discretion, to use the facts, contents and outcomes of the Beta Program, Tester’s comments, and Tester’s individual and/or organizational name, the names of Tester’s employees, including officers, agents, and other parties participating in the Beta Program. Such right shall be unlimited in duration, and no compensation shall be required for Supplier’s exercise of such right.
This Agreement does not authorize Tester to use Supplier’s names or trademarks or the fact of the Beta Program for any publicity or marketing or other activities. Tester acknowledges that Supplier has no obligation to make the Beta Services, or any other products or services provided by or through EVAS available as a standard Supplier’s product or service. The Supplier has no obligation to purchase anything under this Agreement. No agency, partnership, joint venture, or other joint relationship is created by this Agreement; and Supplier may enter into the same or similar agreements with others.
This document is a complete statement of the agreement between the Parties concerning the Beta Program. The substantive law of the State of Virginia of the United States shall govern this Agreement. EVAS may change the terms of this Agreement from time to time upon an electronic notice on the EVAS’s website, or Your Account, or on Your billing statement, or as otherwise required by law.
You agree to carefully read and review each such notice regarding any change of this Agreement. Subject to applicable law, the modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of this Agreement and become binding on You on the later of the date they are posted on the EVAS’s website (www.evas.live), or as otherwise indicated in the notice to You.
You agree that You are solely responsible for: (i) making sure that Your registered email address is current and functional: (ii) checking Your registered email regularly; (iii) checking the EVAS’s website regularly; and (iv) making sure that EVAS communications are not blocked or rendered undeliverable by You, Your computer, any software installed on Your computer, Your Internet service provider, or for any other reason.
Continued use of Services will constitute Your acceptance of the modified terms. If the terms of this Agreement are amended and You do not wish to accept the modified terms, You may terminate this Agreement as provided herein.
By clicking the “I Accept” button, You represent, warrant, agree and acknowledge that You have received, read, understand and agree to the terms and conditions of this Agreement and is duly authorized to execute this document.
IMPORTANT: please read this end user license agreement carefully. It is very important that you check that you are obtaining EVAS software and/or equipment (further herein “software”) from an approved source and that you, or the entity you represent (collectively, the “Customer”) have been registered as the end user for the purposes of this EVAS end user license agreement (EULA). If you are not registered as the end user, you have no license to use the software and the limited warranty in this end user license agreement does not apply. Assuming you have obtained from an approved source, downloading, installing, or using EVAS-supplied software constitutes acceptance of this agreement.
EVAS LLC (“EVAS”) is willing to license this software to you only upon the condition that you obtained the software from an approved source and that you accept all of the terms contained in this agreement plus any additional limitations on the license set forth in supplemental license agreements, made available at the time of your order, or posted on the EVAS website at www.evas.live (collectively the “agreement”). To the extent of any conflict between the terms of this agreement and any supplemental license agreement, the supplemental license agreement shall apply. By downloading, installing, or using the software, you are representing that you obtained the software from an approved source and binding yourself to this agreement. If you do not agree to all of the terms of this agreement, then EVAS is unwilling to license the software to you and (a) you may not download, install or use the software, and (b) you may return the software (including any unopened package and any written materials), or, if the software and written materials are supplied as part of another product, you may return the entire product. Your right to return expires 30 days after obtaining from an approved source and it applies only if you are the original and registered end user. For the purposes of this agreement, an “approved source” means (a) EVAS; or (b) a distributor or systems integrator authorized by EVAS to distribute or sell EVAS software and services within your territory; or (c) a reseller authorized by any such distributor or systems integrator in accordance with the terms of the distributor’s agreement with EVAS to distribute or sell EVAS software and services within your territory.
The following terms of the agreement govern customer’s use of software, except to the extent: (a) there is a separate signed contract between customer and EVAS governing customer’s use of software, or (b) the software includes a separate “click-accept” license agreement or third-party license agreement as part of the installation or download, governing customer’s use of software. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (1) the signed contract, (2) the click-accept agreement or third-party license agreement, and (3) this agreement. For the purposes of this agreement, “software” shall mean computer programs and equipment, including firmware and computer programs embedded in the equipment, as provided to customer by an approved source, and any upgrades, updates, bug fixes or modified versions thereto (collectively, “upgrades”), any of the same which has been relicensed under EVAS software transfer and the relicensing policy or backup copies of any of the foregoing.
The EVAS’s products and services may also be governed by the Terms of Service (TOS) agreement that can be found on the EVAS’s website. Any terms, whether capitalized or not, that are not otherwise defined in this EULA shall have the meanings ascribed to such terms in the TOS. In the event of any conflict between this EULA and the TOS, the TOS shall control.
License. Conditioned upon compliance with the terms and conditions of this agreement, EVAS grants to customer a nonexclusive and nontransferable license to use for customer’s purposes the software and documentation which customer has lawfully acquired, and where necessary, paid the required license fees to an approved source. Documentation means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the software and made available by an approved source.
Customer’s license to use software shall be limited to, and customer shall not use the software in excess of, a single hardware chassis or card or such other limitations as set forth in the applicable supplemental license agreement or in the applicable purchase order that has been accepted by an approved source and for which, where required, customer has paid to an approved source the required license fee (the “Purchase Order”).
Unless otherwise expressly provided in the documentation or an applicable supplemental license agreement, customer shall use the software solely as embedded in, for execution on, or (where the applicable documentation permits installation on non-EVAS equipment) for communication with EVAS equipment owned or leased by customer and used for customer’s internal business purposes. No other licenses are granted by implication, estoppel or otherwise. For evaluation, beta, or else, copies for which EVAS does not charge a license fee, the above requirement to pay license fees does not apply.
General Limitations. This is a license, not a transfer of title, to software and documentation, and EVAS retains ownership of all copies of software and documentation. Customer acknowledges that software and documentation contain trade secrets of EVAS and/or its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Except as otherwise expressly provided under this agreement, customer shall only use software in connection with the use of EVAS equipment and/or services purchased by customer from an approved source, and customer shall have no right, and customer specifically agrees not to:
- transfer, assign or sublicense its license rights to any other person or entity (other than in compliance with EVAS relicensing/transfer policy then in force), or use software on EVAS equipment and/or services not obtained by the customer from an approved source or on secondhand EVAS equipment, and customer acknowledges that any attempted transfer, assignment, sublicense or use shall be void;
- make error corrections to or otherwise modify or adapt the software or create derivative works based upon the software, or permit third parties to do the same;
- reverse engineer or decompile, decrypt, disassemble or otherwise reduce the software to human-readable form, except to the extent otherwise expressly permitted under applicable law, notwithstanding this restriction, or except to the extent that EVAS is legally required to permit such specific activity pursuant to an applicable open source license;
- publish any results of benchmark tests on software, equipment, or services;
- use or permit the software to be used to perform similar services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of EVAS; or
- disclose, provide, or otherwise make available trade secrets contained within the software or documentation in any form to any third party without the prior written consent of EVAS. Customer shall implement reasonable security measures to protect such trade secrets.
Software, Upgrades and Additional Copies. Notwithstanding any other provision of this agreement: (1) customer has no license or right to make or use any additional copies or upgrades unless customer, at the time of making or acquiring such copy or upgrade, already holds a valid license to the original software and has paid the applicable fee to an approved source for the upgrade or additional copies; (2) use of upgrades is limited to EVAS software supplied by an approved source for which customer is the original end user purchaser or lessee or otherwise holds a valid license to use the software which is being upgraded; and (3) the making and use of additional copies is limited to necessary backup purposes only.
Proprietary Notices. Customer agrees to maintain and reproduce all copyright, proprietary, and other notices on all copies, in any form, of software in the same form and manner that such copyright and other proprietary notices are included on the software. Except as expressly authorized in the agreement, customer shall not make any copies or duplicates of software without the prior written permission of EVAS.
EVAS and the EVAS logo are trademarks or registered trademarks of EVAS and/or its affiliates in the U.S. and other countries. Third-party trademarks mentioned are the property of their respective owners. The use of the word partner does not imply a partnership relationship between EVAS and any other company.
Term and Termination. The agreement and the license granted herein shall remain effective until terminated. Customer may terminate the agreement and the license at any time by destroying all copies of software and any documentation. Customer’s rights under the agreement will terminate immediately without notice from EVAS if customer fails to comply with any provision of the agreement. Upon termination, customer shall destroy all copies of software and documentation in its possession or control. All confidentiality obligations of customer, all restrictions and limitations imposed on the customer under the section titled “General Limitations” and all limitations of liability, disclaimers, and restrictions of warranty shall survive the termination of this agreement. In addition, the provisions of the sections titled “U.S. Government End User Purchasers” and “General Terms Applicable to the Limited Warranty Statement and End User License Agreement” shall survive the termination of this agreement.
Export, Re-Export, Transfer and Use Controls. The software, documentation and technology or direct products thereof (hereafter referred to as “software and technology”), supplied by EVAS under this agreement are subject to export controls under the laws and regulations of the United States (“U.S.”). Customer shall comply with such laws and regulations governing export, re-export, import, transfer, and use of EVAS software and technology and will obtain all required U.S. and local authorizations, permits, and licenses. EVAS and customer each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses.
U.S. Government End User Purchasers. The software and documentation qualify as “commercial items,” as that term is defined in the Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this agreement may be incorporated, customer may provide to the Government end user or, if the agreement is direct, the Government end user will acquire, the software and documentation with only those rights as set forth in this agreement. Use of either the software or documentation or both constitutes agreement by the Government that the software and documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
Identified Components; Additional Terms. The software may contain or be delivered with one or more components, which may include third-party components and/or third-party click-accept (the “Identified Component(s)”) that are subject to another license agreement terms, disclaimers of warranties, limited warranties, or other terms and conditions (collectively, “Additional Terms”) than those set forth herein. By accepting terms and conditions of this agreement, customer agrees to be bound by the Additional Terms for any such Identified Component(s).
Limited Warranty. Subject to the limitations and conditions set forth herein, EVAS warrants that commencing from the date of shipment to customer (in the case of resale by an approved source other than EVAS), and continuing for a period of the longer of (a) ninety (90) days or (b) the warranty period (if any) expressly set forth as applicable specifically to the software in the warranty card accompanying the product of which the software is a part of (the “Product”): (a) the media on which the software is furnished will be free of defects in materials and workmanship under normal use; and (b) the software substantially conforms to the documentation. Except for the foregoing, software is provided “AS IS”. This limited warranty extends only to software obtained from an approved source by a customer who is the registered end user. Customer’s sole and exclusive remedy and the entire liability of EVAS and its suppliers under this limited warranty will be (i) replacement of defective media and/or (ii) at EVAS’s option, repair, replacement, or refund of the purchase price of software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to the approved source supplying the software to customer, within the warranty period. EVAS or the approved source supplying software to customer may, at its option, require returning the software and documentation as a condition of the remedy. In no event does EVAS warrant that the software, equipment, and services are error free or that customer will be able to operate the software, equipment, or services without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, EVAS does not warrant that the software, equipment, services, systems, and networks on which or in connection with software, equipment and/or services are used, will be free of vulnerability to intrusion or attack.
Restrictions. This warranty does not apply if the software, Product or any other equipment upon which the software is authorized to be used (a) has been altered, except by EVAS or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by EVAS, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (d) is licensed for beta, evaluation, testing or demonstration purposes. The software warranty also does not apply to (e) any temporary software modules; (f) any software that EVAS expressly provides on an “AS IS” basis; (g) any software for which an approved source does not receive a license fee, where applicable; and (h) software supplied by a third party which is not an approved source.
Disclaimer of Warranty. Except as specified in this warranty section, all express or implied conditions, representations, and warranties including, without limitation, any implied warranty or condition of merchantability, fitness for a particular purpose, non-infringement, satisfactory quality, non-interference, accuracy of informational content, or arising from a course of dealing, law, usage, or trade practice, are hereby excluded to the extent allowed by applicable law and are expressly disclaimed by EVAS, its suppliers and licensors. To the extent that any of the same cannot be excluded, such implied condition, representation and/or warranty is limited in duration to the express warranty period referred to in the “Limited Warranty” section of this agreement. Because some states or jurisdictions do not allow limitations on how long an implied warranty lasts, the above limitation may not apply in such states or regions. This warranty gives customer specific legal rights, and customer may also have other rights which vary from jurisdiction to jurisdiction. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
Disclaimer of Liabilities-Limitation of Liability. Notwithstanding anything else in the agreement to the contrary, all liability of EVAS, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to customer, whether in contract, tort (including negligence), breach of warranty or otherwise, shall not exceed the price paid by customer to any approved source for the software that gave rise to the claim; or if the software is part of another product, the price paid for such other product. This limitation of liability for software is cumulative and not per incident (i.e., the existence of two or more claims will not enlarge this limit). The foregoing exclusion shall not apply to any liability arising out of or in connection with EVAS’s liability that cannot be excluded under applicable law.
Disclaimer of Liabilities-Waiver of Consequential Damages and Other Losses. Regardless of whether any remedy set forth herein fails of its essential purpose or otherwise, in no event will EVAS and its suppliers be liable for any lost revenue, profit, or lost or damaged data, business interruption, loss of capital, or for special, indirect, consequential, incidental, or punitive damages however caused and regardless of the theory of liability, or whether arising out of the use of or inability to use software, or otherwise, and even if EVAS or its suppliers or licensors have been advised of the possibility of such damages. Because some states or jurisdictions do not allow limitation or exclusion of consequential or incidental damages, the above limitation may not apply to you. The foregoing exclusion shall not apply to any liability arising out of or in connection with EVAS’s liability that cannot be excluded under applicable law.
Customer acknowledges and agrees that EVAS has set its prices and entered into this agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
Controlling Law, Jurisdiction. If you acquired the software in any country, unless expressly prohibited by local law, the agreement and warranties are controlled by and construed under the laws of the State of Virginia, United States of America, notwithstanding any conflicts of law provisions; and the state and federal courts of Virginia shall have exclusive jurisdiction over any claim arising under this agreement or warranties.
The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights. If any portion hereof is found to be void or unenforceable, the remaining provisions of this agreement and warranties shall remain in full force and effect. Except as expressly provided herein, the agreement constitutes the entire agreement between the parties with respect to the license of the software and documentation and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded. The agreement has been written in the English language, and the parties agree that the English version will govern.
Future Changes. EVAS may change the terms of this EULA from time to time upon an electronic notice on the EVAS’s website or as otherwise required by law. You agree to carefully read and review each such notice regarding any change of this EULA. Subject to applicable law, the modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of this EULA and become binding on You on the later of the date they are posted on the EVAS’s website, or as otherwise indicated in the notice to You. You agree that You are solely responsible for: (i) making sure that Your registered email address is current and functional: (ii) checking Your registered email regularly; (iii) checking the EVAS’s website; and (iv) making sure that EVAS communications are not blocked or rendered undeliverable by You, Your computer, or any software installed on Your computer, Your Internet service provider, or for any other reason. Continued use of EVAS products or services will constitute Your acceptance of the modified terms.
Acknowledgment. By clicking the “I Accept” or analogous button, You represent, warrant, agree and acknowledge that You have received, read, understand and agree to the terms and conditions of this EULA and is duly authorized to execute this agreement.
EVAS does not disclose information to unaffiliated third parties without your consent or as otherwise provided in this policy. The use of information collected through our services shall be limited to the purpose of providing the services offered by or through EVAS.
INFORMATION WE COLLECT
We collect a variety of personally identifiable information (“personal data”) about users of our services and visitors to our websites to provide seamless user experience. Personally identifiable information means information that is directly associated with, or could be used to identify, a specific person (e.g., a name, address, telephone number, e-mail address, or information about activities directly linked to that person which would permit the physical or online contacting of that person). Personally identifiable information excludes “aggregate information.” Aggregate information means data we collect about a group or category of services or users or customers and from which individual user or customer identities have been removed (e.g., a report on how many customers have visited our website). Such aggregate information allows EVAS to consider new products and services or tailor existing services to customer preferences. In addition, personally identifiable information does not include an Internet Protocol (“IP”) address and any network-related information that you used to access our services or websites.
We may collect the following types of personally identifiable information through your use of our websites, products, services, and telephone calls to EVAS’s and its agent’s customer service:
Information You Provide: We collect information that you provide (e.g., your personal and your organization’s name billing address, telephone number, e-mail address, credit card or bank account information, identification documents, tax ID, social security number, and other information that is required in order for us to provide you products and services or that you may participate in a promotion, survey, or register on our websites, or participate in other activities offered by EVAS or our affiliates.
Information We Collect: We automatically collect certain types of information whenever you interact with us or access our services or websites depending on the device and type of communication channel you use. EVAS, where possible, may collect your phone number, the type of device you use, including its operating system, browser-related data, device model, device identifiers, network data, communication session data, application identifiers, and other information for the purpose of providing you better and safer services, as well as to comply with laws and regulations. If you are placing an emergency call, such as 911, EVAS may access and collect, where possible, your location information to assist the emergency services. When you visit our websites, we may collect any search terms you use on or to get to our websites, and any clickstream data generated by your use of our websites. Any information that we collect, we may store in log files or other types of records, which may be linked to personally identifiable information. When you visit our websites, or third-party websites, and click on EVAS’s or third-party’s advertisement that is linked to EVAS’s website, we automatically collect information about the website you were visiting, including without limitation, the IP address of the website and the date and time that you clicked on the EVAS’s advertisement.
Personal Information Transmitted: EVAS may not have direct relationship with individuals and/or organizations whose information is transmitted via products, services, and/or websites provided by or through EVAS. Our customers may transmit, receive, and/or store personal information of individuals and/or organizations whom they contact by means of our products, services, and/or websites. If you are an individual or a representative of organization who is being contacted by one of our customers or an entity authorized by one of our customers through the products, services, and/or websites that we offer and would no longer like to be contacted by such customer or entity through such services, please contact the customer directly.
We may transfer and store personal information and its derivative information, regardless of how it is obtained, that is contained within the communications sent, received, and/or stored by our customers or their authorized entities using our products, services, and/or websites to third party service providers (sub-processors) that help us provide or supply to us such products, services, and/or websites.
Any individual or organization whose personal information is included in the communications sent, received, and/or stored by one of our customers or its authorized entities through the products, services, and/or websites that we offer who seeks access to, or who seeks to correct, amend, or delete any such inaccurate data should direct the request to the customer directly. Customer is the one who controls such data; therefore, customer may choose to provide such data access or may choose to perform any correction, amendment, or deletion thereof.
EVAS retains, where possible and required, the communications that we transmit or store on behalf of our customers for as long as necessary or as obligated according to the service terms, and as required to comply with our legal obligations, resolve disputes, and enforce our agreements.
Certain communications are technically not possible for EVAS to retain and store, and therefore EVAS is unable and does not retain or store such communications (e.g., communications encrypted using certain encryption technologies or bypass or pass-through communications).
Information We Obtain: EVAS may obtain information about you and/or your organization from third party sources and associate it with your personally identifiable information. Such information may include but is not limited to credit information, commercially available demographic and marketing information, social websites, and other information commercially or publicly available on the Internet or from third parties.
EVAS does not knowingly collect—either actively or passively, or stores any information, including personal information as defined by the Children’s Online Privacy Protection Act, from children under the age of thirteen. If you are a parent or guardian of a child under the age of thirteen and believe that your child has disclosed personally identifiable information to us, please notify us at firstname.lastname@example.org to request the specific information collected from your child. A parent or a guardian of a child under the age of thirteen may review and request deletion of such child’s personally identifiable information as well as prohibit the use thereof.
EVAS’s use and transfer to any other app of information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements.
USE OF PERSONALLY IDENTIFIABLE INFORMATION
Internal Use: EVAS uses personally identifiable information to serve its customers and to enhance our customer relationships. We use personally identifiable information for billing purposes, to provide services or complete transactions you have requested, to anticipate and resolve problems with products and services, to protect our websites, products, and services, to protect our other customers, to create and inform you of products and services, or to better meet your needs, and to comply with laws and regulations.
Subject to your consent, EVAS may use e-mail, telemarketing, direct mail, and other marketing methods to inform you about our and our affiliates’ products and services. If you do not wish to receive these types of communications you can choose at any time not to continue receiving them by contacting EVAS at email@example.com or, where possible, opting out from receiving such communications.
We may use communication device information to conduct anonymous analytics so we can assess how you interact with our products and services through your communication device. Certain products and services that EVAS provides may require capturing, transferring and/or processing your picture, fingerprint, or other biometric or location information. Therefore, EVAS provided software may access video camera, microphone, location, radio, memory card, or other sensors and modules of your communication device, or you may be required to provide such permissions or access to such information. EVAS does not use this information for any purposes except for the designed use as mentioned herein in connection with providing you such products and services.
We may send you push notifications, Short Message System (SMS) notifications, and other notifications and alerts. EVAS-provided software may need to access and send SMS, email, and other notification and messages from your communication device, access phone services and place calls, use wireless and other networks, including near filed networks, consume data services provided by your telecommunication provider, and access and use other services and applications available on or through your communication device in connection with providing you the products and services you requested. We are not responsible for telecommunication and all other charges that you may incur as a result of using or not using our products and services.
While you may choose not to receive marketing information from us or our affiliates, you will continue to receive bills, customer service notifications, and other similar information from us electronically or otherwise. You cannot opt out from service and product notifications. You will also continue to receive communications directly related to our services and products.
Customer Surveys: You may be able to participate in our surveys or promotional campaigns. Any personally identifiable information that we may collect from you in a survey or a campaign, such as, but not limited to a testimonial, will be used by EVAS and its affiliates, notwithstanding anything to the contrary contained in any agreement between you and EVAS, or unless otherwise explained in the instructions for a customer survey or a campaign.
DISCLOSURE OF PERSONALLY IDENTIFIABLE INFORMATION
EVAS seeks to protect and keep customer’s information confidential, and therefore EVAS does not share personally identifiable information with unaffiliated third parties, nor it sells such information to third parties, unless permitted to do so in accordance with this Policy or other agreements between you and EVAS.
Disclosure to None-Affiliates: We may disclose your personally identifiable information and any sensitive or confidential information to an unaffiliated entity, only if: (i) you consent to such disclosure, or (ii) we are required to do so by law, such as to comply with a lawful government request (e.g., lawful subpoena or court order), or (iii) we can do so in accordance with an agreement between you and EVAS.
In addition, we may disclose your personally identifiable information and any sensitive information to an unaffiliated entity if EVAS, in its sole discretion, believes it is absolutely necessary in order to: (i) enforce its agreements and policies, including this Policy, (ii) bill and collect for products and/or services, (iii) protect and defend its websites, products and services, its legal rights and property, the interests of customers and the rights of third parties (e.g., to address allegations about fraudulent or unlawful activity), (iv) protect health and safety of general public, and (v) in case of an emergency, including, but not limited to assisting emergency services, (vi) complete a transaction or perform a service that you have requested, or to support the technical operation and maintenance of our products, services, and websites.
We may also share personally identifiable information with our agents and sub-processors to perform functions on our behalf. For example, we may use third party service providers to perform functions such as analyzing data, providing marketing assistance, providing customer service, processing orders, providing computing infrastructure, etc. When an unaffiliated third-party acts solely on our behalf, EVAS requires that party to follow our privacy practices.
We may obtain your consent for a disclosure in several ways, including: (i) in writing, whether such consent is signed and/or transmitted electronically or delivered by a postal service or a courier; and notwithstanding anything to the contrary contained in any agreement between you and EVAS as follows: (ii) verbally, (iii) online, by clicking on a link or button, or (iv) using a dialing string or buttons on a telephone pad.
Disclosure to Affiliates: We may share your personal and payment information with: (i) our subsidiaries and business affiliates where it is necessary to support or enhance our products and services, (ii) with payment providers and fraud prevention services in order to verify payment methods and prevent fraud, (iii) with credit reporting agencies in order to perform a credit inquiry, and such inquiry may be noted on your credit record, (iv) with government agencies and other authorities to verify your compliance with the law and our terms and conditions. We may use automated decision-making systems to verify payment methods, assess creditworthiness, or prevent fraud, and we may contact you requesting additional information when needed.
For European Economic Area (“EEA”) customers, this may mean that the personally identifiable information (i.e., personal data) you provide us may be transferred to countries outside the EEA. By way of example, this may happen if any of our subsidiaries or affiliates are located in a country outside the EEA, such as EVAS that is located in the United States. These countries may not have similar data protection laws to the EEA. Nonetheless, if we transfer information outside the EEA in this way, we will take steps to ensure your privacy rights continue to be respected.
Business Transfers: Information about our users and customers, including personally identifiable information, may be disclosed as part of any merger, acquisition, or sale of company assets. It may also be disclosed in the unlikely event of an insolvency, bankruptcy, or receivership in which personally identifiable information would be transferred as one of the business assets of EVAS or its subsidiaries.
Emergency Calls: If you dial for emergency services (e.g., 911 in the U.S.), we may provide personally identifiable information and location information to: (i) a public safety answering point, (ii) emergency service provider or dispatch provider, (iii) public safety, fire service, or law enforcement official, (iv) hospital emergency or other medical care facility, (v) or other emergency service or a service provider that acts on behalf or in connection with an emergency response.
CUSTOMER PROPRIETARY NETWORK INFORMATION
In the normal course of providing telecommunications and interconnected voice-over-Internet-protocol (“interconnected VoIP”), email, SMS and other services to its users and customers, EVAS collects and maintains certain customer proprietary network information (“CPNI”). Your CPNI includes the types of telecommunications and interconnected VoIP services, you currently purchase or subscribe to, how you use those services (for example, your calling, SMS, and email records), and billing information related to those services—except your EVAS telephone numbers, name, and address that do not constitute CPNI.
EVAS may share your CPNI with our subsidiaries, affiliates, and authorized agents in order to offer you additional products and services that may fit your needs. EVAS does not sell, trade, or otherwise share your CPNI with anyone who is not authorized to represent us, or to offer our products or services, or to perform functions on our behalf, except as the law may require or you may authorize.
In the United States, Federal law permits us to use your CPNI to provide the telecommunications and interconnected VoIP services you purchase or subscribe to, and to bill and collect for those services. We may also use or disclose your CPNI for legal or regulatory reasons such as to respond to a court order, to investigate fraud, to protect our rights or property, to protect against the unlawful use of our products, services, or websites, or to protect other users. You have a right and we have a duty under the federal law to protect the confidentiality of your CPNI. In order to opt out and restrict access to your CPNI for our marketing purposes, please contact us within 30 days of this notice. Restricting our use of your CPNI will not affect our provision of any service or product to which you currently subscribe, nor will you necessarily eliminate all types of EVAS’s or its affiliates’ marketing.
SECURITY AND DATA INTEGRITY
We maintain a variety of physical, electronic, and procedural safeguards to guard your personally identifiable information and CPNI. Specifically, we use commercially accepted procedures and reasonable security systems to protect against unauthorized access to our systems. We restrict access to your personally identifiable information and CPNI to those employees and contractors—all of whom are covered by this Policy—who need to know that information to provide products and services to you or otherwise assist you for a legitimate business reason.
Please be advised that EVAS has no control over or responsibility for the security or privacy policies or practices of other websites or services on the Internet you might visit, interact with, or from which you might buy products or services, even if you visit them using links on one of our websites.
EVAS may use tracking technologies such as “cookies”, tags, and scripts to enhance your use of our websites. “Cookies” are small text files placed on your computer’s hard drive by a website when you visit that website. These files identify your computer and record your preferences and other data about your visit to a website so that when you return to that website, the site operator knows who you are and can personalize your visit. For example, cookies enable a website shopping cart to function so that you only have to check out once.
USE OF WEB BEACONS
EVAS may use web beacons on its websites. A web beacon is a small and usually invisible graphic image displayed in a webpage, web-based document, or e-mail message. When the user’s web browser reads the HTML code for the web beacon to retrieve the image, it can pass along the IP address of the user’s computer, the time the web beacon was viewed and for how long, and the type of browser used. Web beacons can also be linked to “cookies” and any personally identifiable information that may be stored in them.
EVAS may use web beacons to gather aggregate information, as described herein. We do not permit unaffiliated third parties to place web beacons in advertisements on our websites. We may use third parties, such as Google, to analyze use of our websites.
USE OF BANNER ADS
CHECKING INFORMATION FOR ACCURACY
EVAS customers are able to review, change, and delete their information that is related to the products and services they are using. See the product or service instructions on how to review, change, and delete, where applicable, such information. However, we may retain your information for as long as your account is active or as needed to provide you the services, comply with our legal obligations, resolve disputes, and enforce our agreements. If you wish to cancel your account or want to request that we no longer use your information, please see the instructions for the product or service you would like to cancel. You can also contact EVAS at firstname.lastname@example.org and request to review, change, or delete your information.
REFERRALS AND INVITATIONS
If you choose to use our referral programs or services that involve a referral or invitation, and you choose to refer or invite someone to use our products and services, or to visit our websites, or otherwise to contact us, we may ask you for the intended recipient’s name, email address, phone number, and other information. EVAS may store and use this information to communicate with such individual or entity as it deems appropriate and use this information for any of its business purposes. By agreeing to the terms in this Policy you acknowledge that you have received any referral recipient’s or invitees’ consent to provide its information to us. Your referral or invitee may contact us at email@example.com to request that we remove this information from our database.
BLOGS AND FORUMS
Our websites may offer publicly accessible blogs or community forums. You should be aware that any information you provide in these areas is public and may be read, collected, and used by others who access them and may remain on the public forum indefinitely. To request removal of your personal information from our blogs or community forums you should contact us at firstname.lastname@example.org. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. EVAS is not liable for the distribution of personal information posted on a public forum. We encourage all users to exercise caution when providing personal information in blogs and community forums.
With your input and your consent, or as otherwise specified in an agreement between you and EVAS, we may post our customers’ testimonials on our websites and on other resources as we deem appropriate, which may include your name, industry, company, title, or other identifying information. If you want your testimonial to be removed or wish to give or withdraw a consent, where possible, please contact us at email@example.com.
EVAS systems are designed with data protection and privacy in mind, and they are aligned to global privacy requirements. For more information related to technical and operational security features of the products and services, as well as GDPR readiness please contact us at firstname.lastname@example.org.
UPDATING THE POLICY
EVAS will revise or update this Policy if our practices significantly change or as we deem appropriate. If we make any material changes, we will notify you by email, where feasible, and/or by updating this Policy on our website (www.evas.live) prior to the change becoming effective. You should refer to the EVAS’s website for the latest information and the effective date of any changes.
If you have any questions, comments, or concerns about this Policy, please e-mail us at email@example.com.
By purchasing, subscribing to, or using any of the EVAS’s products or services or using any of our websites or any other product or service provided by or through EVAS, you agree to the terms and conditions of this Policy.
This Terms of Service agreement (the “TOS” or “Agreement”) constitutes the entire agreement between EVAS LLC (“EVAS”) and you on behalf of yourself or an entity that you represent (“You”), as the user of EVAS’s information technology services and any associated software, firmware, hardware, and websites (“Services”). EVAS and You may collectively be referred to as the “Parties” and each of them as a “Party”. This TOS governs Your use of Services provided by or through EVAS.
When You accept this TOS by clicking on the appropriate acknowledgment, signing up for, subscribing to, accessing, downloading or installing the Services, You represent and warrant that: (i) You possess the legal right and capacity to enter into the agreement with EVAS and to perform all Your obligations thereunder; (ii) You are of legal age to enter into this Agreement; (iii) You have full power and authority to execute and deliver any agreement and documents, and to perform all of Your obligations thereunder; (v) if You accept on behalf of an organization, You’re affirming to EVAS that You are authorized to bind that organization, and the references to “You” in this TOS expressly include without limitation the entity You represent.
All terms used in this TOS shall be defined in accordance with the following definitions or as otherwise defined elsewhere in this TOS.
“911-Enabled Softphone” means a softphone for which EVAS may be able to provide limited emergency services as explained in this TOS.
“Account” means a registered account established with EVAS or an account associated with receiving Services. Such Account may contain Your and/or Your Company’s Registration Information, as well as Registration Information of Your End Users, and other information. Multiple Service Plans, Digital Lines, records of End Users, and other information may be included in a single Account. An account may include a number of sub-accounts or connected accounts, for instance, an organizational account containing a number of End User accounts.
“Account Administrator” means an End User(s) that You designate as an Account Administrator(s) of Your Account that have rights to set or modify settings or preferences of the Account and other End Users.
“Account Data” means Registration Information and any EVAS generated records, and other information in Your Account.
“Account Security Incident” means any actual or suspected unauthorized activity, erroneous billing, or breach or compromise of any security controls (e.g., Your Password), or breach of privacy of Your Account, or any non-public Account Data.
“Admin Portal” or “Administrative Portal” or “User Portal” or “Customer Portal” means a website and/or software application through which a customer may be able to enter Registration Information, purchase, register, and/or access Services, and/or other products, services, or features provided by EVAS, or make modifications to or control an Account and/or Services.
“Customer Communications” means the content of calls, facsimiles, SMS messages, voicemails, emails, voice and video recordings, data files, conferences, or other communications transmitted or stored via Services.
“Digital Line” means a domestic (local), foreign, toll free or other telephone line with a telephone number (caller ID, virtual number, private extension, or a standard telephone number), allowing the placement of outbound calls and/or receipt of inbound calls, whether over an Internet Protocol (IP), telephone, or any other network or communication protocol.
“Embargoed Area” means a country or a region that is subject to the United States or the United Nations embargo or economic sanctions, including without limitations destinations designated by the United States Government in Country Group E or Part 746 of the Export Administration Regulations (15 CFR Part 730-774), or otherwise subject to territorial sanctions under regulations administered by the United States Department of the Treasury or other governmental authorities with jurisdiction.
“End Point” means a device and/or software through which a user might access and/or use Services, including IP Desk Phones, Softphones, mobile or desktop software applications, and other devices and VoIP infrastructure.
“End User” means (i) a user of Services registered in Your Account; or (ii) any individual that accesses any part of Services or any other products or services provided by or through EVAS with Your approval, or Your permission, or by Your direction or request, or in connection with Your Account or Your use of Services; or (iii) with approval, or permission, or direction, or request of anyone registered in Your account; or (iv) accessing the Services or any other products or services provided by or through EVAS with Your approval, or Your permission, or by Your direction or request, or in connection with Your Account or Your use of Services.
“Export Control List” means any list maintained by the United States of any other country or entities or individuals that are subject to export controls or economic sanctions, including without limitation the United States Commerce Department’s Denied Parties List, Entity List, or Unverified List; the United States Department of the Treasury’s or the United States Office of Foreign Assets Control’s Specially Designated National List; Sectoral Sanctions List; Foreign Sanctions Evaders List; and similar lists of entities, organizations, or individuals subject to export control restrictions or economic sanctions that are maintained by other agencies of the United States Government and the United Nations, or other governmental authority with jurisdiction.
“Intellectual Property” or “IP” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (i) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (ii) copyrights and copyright registrations, and “moral” rights; (iii) the protection of trade and industrial secrets and confidential information; (iv) other proprietary rights relating to intangible property; (v) trademarks, trade names and service marks; (vi) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (vii) analogous rights to those set forth above; and (viii) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
“IP Desk Phone” means any hardware or telephony device, including mobile devices and special-purpose devices, that may use the Internet to place and transmit telephone calls.
“IP Rights” means any and all patents, copyrights, trademarks, service marks, trade secrets, and other Intellectual Property rights in Services or any other products and services provided by or through EVAS, or in any technology used in the provision thereof.
“Law” means any federal, national, municipal, local, state, or international law, statute, regulation, code, ordinance, or restriction, treaty or convention, or court or administrative ruling.
“Legal Process” means any court or administrative order, subpoena, civil investigation demand, warrant, or other official request, order, or process.
“Marketing Communications” means occasional non-bulk sales-related communications, and any other communications solely or primarily designed to market products.
“Password Information” means any password, PIN, security question/answer, biometric, physical, and any other access-related device, credential, secret, certificate, and the like.
“Registered Address” means the address of the physical location where You will predominantly use the Digital Line, including each Digital Line assigned to each IP Desk Phone and each 911-Enabled Softphone or other service.
“Registration Information” means the information You and/or Your End Users may be required to provide as part of procurement and/or use of Services, or other products or services provided by EVAS, including but not limited to Your personal name and/or organizational name, Tax ID, business registration documents, DUNS number, a copy of government-issued personal identification document, Social Security or similar government-issued registration number, any personal background report, personal and/or business credit score or solvency report, tax return, billing address, shipping address, Payment Method, Your legal consent and/or affidavit, and other documentation/information that EVAS in its sole discretion may require, whether as an ordinary process or on case-by-case basis.
“EVAS Mark” means a United States and foreign trademark, service mark, copyright, or logo of EVAS.
“Service Communications” means any communications related in whole or in part to the administration, support, use, Usage, development, billing, payment, Customer Communications, upgrades, updates, installations, new products, security issues, support cases (tickets), customer satisfaction surveys, purchases, and other transactions or improvements related to Services or other products and services provided by or through EVAS.
“Services” means all unified communications services, telecommunications services, teleconferencing services, any associated customer support services, and any data services, including voice, video, text, data, data storage, media, and other communications, and related services, including security services, technical support services, hosting services, infrastructure services, maintenance or administration services, software applications, firmware, and any device, system, or information technology related to delivering the aforesaid products and services, any integrations, Application Programming Interfaces (APIs), Service Plans, and other products and services provided by or through EVAS under this TOS.
“Service Plan” means Service subscription acquired under this TOS.
“Softphone” means an instance of the EVAS desktop or mobile software application used to access Services, make telephone calls, send messages, or access or use any other services provided by or through EVAS and/or to operate on hardware, firmware, or networks provided or enabled by or in connection with EVAS.
“Taxes” means all foreign, federal, state, local, and municipal sales, value-added, transactional, regulatory, and other taxes and assessments, and other governmental fees, surcharges, levies or amounts, including without limitation charges related to the recovery of amounts contributed to any non-profit or for-profit organization, universal service, or other governmental or non-governmental fund or entity, whether or not such recovery is mandated by any Law or not.
“Text-to-911” means the ability to send SMS messages to 911 emergency services.
“Third Party Mark” means a United States and foreign trademark, service mark, copyright, or logo of a third party.
“Usage” means toll-free usage, local usage, long-distance usage, international usage, and any other usage of an Account and/or Digital Line, a number, or a Service that could result in charges for calling, messaging, data processing, data storage, or other activity.
“Voice-to-Text Feature” means any functionality or feature of Services that converts voice content to text content or vice versa.
“911” means basic 911 or Enhanced 911 (E911) emergency services in the United States and/or similar services elsewhere.
“911-Enabled” means software or equipment that is capable, where possible, to initiate a call or call 911 emergency services.
As used in this TOS, (i) any reference to a statute shall be construed as a reference to that statute as amended, re-enacted or otherwise modified from time to time, (ii) the term “including” will always be deemed to mean “including, without limitation”, (iii) a definition is equally applicable to the singular and plural forms of the feminine, masculine and neuter forms of the term defined, and (iv) any headings in this TOS are for convenience only and shall not affect the interpretation of any terms.
OPERATION AND LIMITATIONS OF THE 911 SERVICE
Access to Emergency Services (911). EVAS may provide a limited access to the emergency calling services, where available, allowing some users to access either a basic 911 or an Enhanced 911 (E911) service. Your access may differ depending on Your location or the device You are using; and emergency calling services may work differently than You have experienced previously, using the traditional wireline or wireless telecommunication devices and services. It is strongly recommended that you always have available alternative means for placing emergency calls and you do not rely on the Services for placing emergency calls.
The users of IP Desk Phones or 911-Enabled Softphones may be able, where available, to dial 911 or similar emergency services directly from their IP Desk Phones or a 911-Enabled Softphone. Emergency calls cannot be placed through Softphones and other equipment that is not 911-Enabled. Calls to emergency services placed through a Softphone on a mobile device (e.g., a smartphone) may be automatically routed, where possible, to the native dialer of a mobile device, and the call will be handled by Your wireless service provider if wireless service is available. If Your wireless service is unavailable, the 911 call cannot be placed. A Softphone cannot place emergency calls over a Wi-Fi network. Emergency dialing is not available on Softphones operating on tablet or other mobile devices without a native phone dialer and a wireless service plan that supports calls to emergency services.
How it Works. When a user dials 911 on an IP Desk Phone or a 911-Enabled Softphone, the Digital Line number and the Registered Address You have provided may be sent, where possible, to an emergency center. In some areas, emergency operators have access to this information; however, in areas where only basic 911 service is available, the emergency operator answering the call may not be able to access Your Digital Line number and/or Your Registered Address. You should always be prepared to provide the emergency operator with Your Digital Line number and Registered Address in case if the call is dropped or disconnected. If You are unable to speak, the emergency operator may not be able to send help to Your location and/or call You back should the call be disconnected. EVAS does not control whether the emergency operator receives Your Digital Line number (telephone number or caller ID) and Registered Address and does not guarantee that Your Digital Line number and/or Registered Address will be provided to emergency operator and/or Your call will be successfully routed to the emergency service operator.
Emergency dialing with Your Services works differently than emergency dialing over a traditional phone service. Oftentimes, 911 calls dialed via the Service, if available, cannot be directed to the local emergency response center, and are instead, where possible, may be directed to a National Emergency Call Center (the “NECC”). That might happen, for instance, if there is a problem validating a Registered Address, if the Registered Address is an international location, or if the Registered Address is in an area that is not covered by the landline 911 network, or in other situations. 911 calls that are directed to NECC may not include Your Digital Line number and/or Your registered address. An operator at the NECC may request Your name, location, and telephone number and may attempt to reach emergency responders in Your local area. Until You give the operator Your phone number, and location, the operator may not be able to call You back or dispatch help to Your location if the call is dropped or disconnected or else.
Service Limitations. Accessing 911 via Services will not be possible, among other reasons, in the event of an Internet or power outage, Unplanned Downtime or Maintenance of Services, a Service Plan that does not offer 911 services, a trial, beta, or other limited Services availability program, if You do not have a cellular voice service (on the device operating a 911-Enabled Softphone), or if Your broadband, ISP, or Service is terminated or otherwise unavailable, if the Softphone or other equipment does not make 911 calls over the Internet or such functionality is severely limited. It is possible that network congestion or other difficulty may delay or prevent completion of a 911 call. 911 service may not be available if You are dialing from a Digital Line that is not a United States number or if such number does not support 911 calls, or for other reasons.
Registering Your Location. You agree to register with EVAS immediately upon activation of Your Account the address of the physical location where You will use each Digital Line. This is Your Registered Address of each Digital Line. You agree that You will accurately register and maintain such registration for each individual Digital Line assigned to each End User, IP Desk Phone, 911-Enabled Softphone or any other equipment, service, entity, or individual.
If you or your end users relocate or relocate any equipment in a way that any Registered Address becomes inaccurate, erroneous, or missing, you agree and agree that this is your responsibility to immediately update the Registered Address that it becomes current, accurate, and error free. You acknowledge that if you do not update the Registered Address, any 911 calls made from the Digital Line or a device may be sent to the wrong emergency response center and will not transmit your current location information to the emergency responders, where possible, delaying or preventing the emergency assistance to you, or the 911 service may not be available at all. It may take up to several hours for the address update to take effect, and it is your responsibility to make sure that your Registered Address was updated, is accurate, and always remains accurate and up to date.
Text-to-911 Services. In some areas, emergency operators can receive text messages sent to 911 (Text-to-911). In areas where it is available and possible, Your Service may, where available, allow emergency Short Message System (SMS) messages to be transmitted using a 911-Enabled Softphone. Such messages are automatically directed to the native dialer of a mobile device (e.g., smartphone), allowing You to send a message via Your wireless service provider. If wireless service is unavailable, the message cannot be sent. The Text-to-911 is not available on tablets or other mobile devices without a native phone dialer and a wireless service subscription.
Notification of Employees, Guests, or Other Users. You agree to notify all End Users, employees, contractors, guests, subscribers, or any person who may place calls or send messages using Services or may be present at the physical location where Services are used, of the limitations of 911 when using Services. You agree to affix an EVAS-provided upon your written request, sticker-warning that 911 services may be limited or unavailable in a readily visible place on each piece of equipment that might be used to access or use the Services. You, Your End Users, and any person who may place calls or send messages using Services should always have an alternative means for placing 911 calls and/or sending messages to 911.
Access to Emergency Services Outside the U.S. Customer acknowledges that should a caller using Services from outside the continental United States to call 911, it may not be possible to place q 911 call, or a caller may be instructed to hang up and call their local 911 service. Customer shall notify all users (i.e., business colleagues, employees, guests, and other persons who may be present at the physical location where Customer uses the Services) that 911 may not be available outside the United States and that 911 service may be limited in comparison to a traditional 911 service.
Disclaimer of Liability for Emergency Call Response. You acknowledge and agree that Your use, and use by Your End Users, and/or guests, or other third parties, of 911 services and Text-to-911 services via the Services and any products or service provided by or through EVAS are subject to the availability and limitations described herein.
The availability of certain features, such as transmission of a Registered Address or Your Digital Line number (caller ID or telephone number), depends on whether emergency response centers support those features, and are factors outside of EVAS’s control. EVAS relies on third parties to assist EVAS in routing, where possible, 911 calls and messages to emergency response centers, the NECC, and other organizations. EVAS does not have control over emergency response centers, the NECC, emergency responders, or other third parties. EVAS disclaims all responsibility for the conduct of emergency response centers, the NECC, and all other third parties involved in the provision of emergency response services. Accordingly, to the extent permitted by Law, You hereby release, discharge, and hold harmless EVAS from and against any and all liability relating to or arising from any acts or omissions of such third parties, EVAS, or other third parties involved in the handling of or response to any emergency or 911 call or message. You agree to indemnify and hold harmless EVAS, and any third-party provider(s) from any and all claims, losses, damages, fines, or penalties arising out of: (i) Your provision to EVAS of incorrect information, including physical addresses, or Your failure to update Your Registered Address; (ii) Your failure to properly notify any person who may place calls using Services of the 911 limitations; or (iii) the absence, failure, or outage of the emergency service dialing using Services for any reason whatsoever; and (iv) the inability of any user of Service to be able to dial or access 911 or access emergency service personnel for any reason whatsoever.
Purchase of Service Plan. Pursuant to this TOS, You are purchasing subscription for a Service Plan set forth in Your order, and agreeing to use and pay for the same as set forth in this TOS and accompanying documentation for the entire period as indicated in the order (the “Initial Term”), and any renewal periods as described below. You agree to be financially responsible for Your use of Services and other products and services provided by or through EVAS per Your Service Plan, including the authorized or unauthorized use of Your Account and Digital Lines.
Account Registration. At the time of procuring a Service Plan and/or at any other time, EVAS may require You and/or Your End Users to provide Registration Information. You hereby grant to EVAS and its agents, partners, and suppliers a permission and a perpetual, worldwide, royalty-free, fully paid-up, non-exclusive, non-transferable right and license to copy, reproduce, store, record, disclose, transmit, display, access, and use Registration Information in connection with activation, provisioning, support, improvement, administration, sales, marketing, and management of Services, as set forth in this TOS or otherwise permitted by Law. You represent and warrant that all Registration Information provided to EVAS by or on behalf of You or any End User will be true, accurate, current, and complete, and that You will promptly confirm, update, or supplement Registration Information on file upon EVAS’s request or if such Registration Information changes.
Account Administrators. You are responsible for all acts, errors and omissions of Your Account Administrators, and all other End Users, including without limitation any modifications and purchases such individuals make in or in connection with Your Account.
Purchase of Digital Lines. Your Service Plan may include an option to procure Digital Lines, or one or more Digital Lines may be included in Your Service Plan, as set forth in the applicable documentation. You and Your End Users may be able to purchase Digital Lines for the applicable Account by placing an order. Each Digital Line added to Your Account is subject to the terms of this TOS. The Term of a Digital Line will run conterminously with the Term of Your Service Plan.
Term and Automatic Renewal. Your license to the Service Plan is provided for the Initial Term. The Initial Term for all Service Plans will renew automatically for successive terms of the same length (each, a “Renewal Term”) without further action by or notice to You, unless You notify EVAS in writing of non-renewal at least thirty (30) days before the end of the Initial Term or then-current Renewal Term. The Initial Term together with any Renewal Terms are collectively the “Term”.
Equipment. All IP Desk Phones and/or equipment related to an IP Desk Phone, including but not limited to handsets, headsets, software, firmware, and hardware installed on or related to those devices, and any other product directly related to an IP Desk Phone is not included in Your Service Plan, unless EVAS expressly states otherwise in writing. The IP Desk Phones, their purchases, warranties, returns, exchanges, and claims are subject to a separate agreement, and are not covered by this TOS. Such agreement may be provided to you by EVAS or a third-party vendor, and EVAS reserves the right to change from time to time the terms and conditions of such agreement without a prior notice to You.
END USER LICENSE AND RESTRICTIONS
Limited License. EVAS grants You and Your End Users a limited, personal, revocable, non-exclusive, non-sub-licensable, non-assignable, non-transferable, non-re-sellable license to use Services and, if any, associated software, firmware, and hardware provided in conjunction and within the scope of Your Service Plan during the Term—all, must be used in strict accordance with this TOS and solely for Your own internal business use. In the event of any expiration or termination of your Service Plan or termination of this TOS, all license rights granted herein immediately terminate. Any IP Rights in Services or in any technology used in the provision thereof are and shall remain the sole and exclusive property of EVAS and its licensors. All rights not expressly granted herein are reserved and retained by EVAS and its licensors, and no IP Rights or other rights or licenses are granted, transferred, or assigned to You, any End User, or any other party by implication, estoppel, or otherwise. You acknowledge that misuse of Services may violate third party IP Rights in the software, firmware, or hardware provided in conjunction with Services. You may not use or disclose any Intellectual Property or IP Rights in Services, or any hardware, firmware, or software related to the same, except as expressly contemplated by this Section.
EVAS’s IP Rights. You agree that all rights, title, and interest in and to all Intellectual Property in the Services, any software, firmware, or hardware used in conjunction with Services, and any materials provided in connection with Services are owned exclusively by EVAS or their licensors. Except as expressly provided herein, the limited license granted to You under the Service Plan does not convey any ownership or other rights, express or implied, in the Services, any materials provided in connection with the Services, or in any Intellectual Property.
Use and Disclosure of Intellectual Property. You represent, warrant, covenant and agree that You shall not disclose or use any of the Intellectual Property in the Services, any software, firmware, or hardware used in conjunction with the Services, or any marketing materials for any purpose following a termination of Your Service Plan or the limited license granted thereunder to use Services.
New Versions of Software. EVAS, in its sole discretion, reserves the right to add, remove, and modify features and functions, and to provide fixes, updates and upgrades to Services and any products and services provided by or through EVAS without notification to You. You acknowledge and agree that EVAS has no obligation to make available to You and any of Your End Users any such features, functions, fixes, updates, upgrades, and subsequent versions of the Services or any part thereof. However, EVAS at its sole discretion could make available to You any such features, functions, fixes, updates, upgrades, and subsequent versions that are generally available to customers who subscribe to the same edition of the Service Plan that is purchased by You. In addition, You and EVAS acknowledge that no third-party has any obligation whatsoever to furnish maintenance or support services, or any part thereof, with respect to Services, unless EVAS expressly states otherwise in writing; and that EVAS at its sole discretion may provide maintenance and support services under this TOS and may limit such maintenance and support at any time only to the extent that such maintenance and support is required under applicable Law.
CUSTOMER SECURITY POLICY
Password Information Security. You agree that You are responsible for all Password Information that You or any End User use in conjunction with Services and any products and services provided by or through EVAS. You further agree to ensure that all such Password Information: (i) shall be immediately changed in the event that You or Your End Users learn of or suspect that a Security Incident has occurred; (ii) shall not be transmitted or stored in any insecure manner; and (iii) shall be protected from theft and unauthorized access, use, and disclosure with at least a reasonable degree of care and diligence as considered to be the best security practices in the information technology industry.
Update of Security Features. You acknowledge that some Services may require activation or installation of software, firmware, digital keys and/or certificates, including any updates or renewals; and such software, firmware, digital keys and/or certificates may be updated, renewed, de-activated, or uninstalled with or without a notice to You and/or Your consent. You agree to promptly download and install all updates to software and/or hardware, firmware, digital keys, and/or certificates used in conjunction with Services. You acknowledge and agree that if You and/or Your End Users decide not to install, implement, or use some or all thereof, it may adversely impact the performance of Services, render them unusable, or lead to a breach of security and/or confidentiality.
Account and End User Management. You acknowledge and agree that End Users You designate as Account Administrators may have the ability to make purchases and enter into transactions on Your behalf and/or to perform acts related to Services, Service Plans, Your Account, Your Digital Lines, and other products and services, that may significantly affect You and Your End Users, or the operation of Services. You are responsible for any changes made to Your account by all Your End Users, including Your Account Administrators. You agree to always maintain sole and exclusive control over Your Services and Your Account and to ensure that all Account rights, permissions, and settings, and all use and Usage, are effectively managed as necessary to prevent any unauthorized access to, use or Usage of, or transaction or activity through or related to Your Services.
Erroneous Product Information. EVAS attempts to describe its products and services as accurately as possible. However, EVAS does not warrant that any such information, including, without limitation, pricing, features, and capabilities, is accurate, complete, reliable, current, or error-free. It is possible that such information may be inaccurate, erroneous, and out-of-date. Such information is provided only for customers’ convenience and is not part of this TOS or any other agreement with EVAS.
EVAS Communications. You agree that EVAS may or have sent Service Communications and Marketing Communications to You, Your End Users, users, and third parties in connection with You. EVAS shall not send Marketing Communications to You and Your End Users without the right to opt out. You hereby consent to EVAS’s distribution of Service Communications and Marketing Communications in accordance with this TOS. In the event that You or any of Your End Users, users, or contacts provide EVAS with any feedback, answers, ideas, comments, or other information in connection with any of the foregoing communications, You hereby grant EVAS a perpetual, irrevocable, unlimited, worldwide, fully-paid up, royalty free, transferrable, and resalable right and license to use and take any advantage of the same.
Directory Listing Service. You acknowledge and agree that in the event that You subscribe to the EVAS directory listing service, if available, the information that You provide in connection with such subscription (i) may be freely used and reproduced by, or disclosed to, any third-parties, or otherwise made publicly available; (ii) EVAS may not be able to have such information or listing removed, altered, updated, or corrected; and (iii) You and Your End Users may receive calls, messages, mailings, and other communications from third parties as a result of Your participation in the EVAS directory listing service. You represent and warrant that all information provided by You and any of Your End Users related to any subscription to the EVAS directory listing service will be true, accurate, and up-to-date, and that You and/or Your End Users shall promptly update any such information if it changes or becomes inaccurate. You hereby authorize and grant EVAS a worldwide, irrevocable, non-exclusive, royalty-free, fully paid-up, transferable, and resalable license to use, disclose, transmit, publish, or publicize, in any medium or technology now or hereafter available, all information that You and/or Your End Users provide in connection with subscribing to, participating in, or using the EVAS directory listing service. You hereby release, discharge, and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from and against all liability whatsoever related to or arising from any publication or listing of information in connection with Your and/or any of Your End Users’ subscription to the EVAS directory listing service and any third party’s use of the same.
Promotional Services. You acknowledge and agree that if EVAS offers or provides You and/or Your End Users or users any discounts, promotions, or free trials, EVAS may terminate them or modify their scope at any time and without notice, unless EVAS specifically states otherwise in writing.
ACCEPTABLE USE POLICY
High Risk Use. You acknowledge that the Services are not designed, manufactured, intended, or recommended to be use for any high-risk or fail-safe purposes or activity whatsoever, or in any environment where failure, interruption, malfunction, error, or unavailability could result in substantial liability or damages, physical harm or personal injury, death or dismemberment, or property or environmental damage. You represent and warrant that You and all your End Users will not use the Services, or any product or service provided by or through EVAS for any such purpose or activity, or in any such way or environment.
Customer Legal Compliance. You represent and warrant that all use and Usage of Services, Account(s), Digital Lines, Service Plans, and other features, products, and services provided by or through EVAS will at all times comply with all applicable Laws, including but not limited to the rules, policies, and regulation of the Federal Communications Commission (“FCC”); and all Laws relating to data security or privacy, “Do-Not-Call” provisions, unsolicited marketing, telemarketing, faxing, email marketing, spamming, phishing, international communications, debt collection, recording of conversations, export control, end-use and destination restrictions as imposed by the United States or the United Nations, consumer protection, pornography, trade practices, false advertising, unfair competition, discrimination, harassment, defamation, intellectual property, securities, and the like. Certain products and services provided by or through EVAS may only be available to U.S. Persons, as defined in the U.S. International Traffic in Arms Regulations, and/or may only be available to individuals and organizations that have the appropriate security clearance issued by a pertinent governmental organization. EVAS may change such qualifications at any time and without a notice.
Unsolicited Advertisements and TCPA Compliance. Certain communication practices, including without limitation, placing of unsolicited calls or commercial messages, sending of unsolicited facsimile, internet facsimile, SMS, and other communications; and the use of certain automated telephone equipment to place calls, are regulated in the United States by the Federal Telephone Consumer Protection Act of 1991 (“TCPA”), the Junk Fax Prevention Act of 2005, and under a number of similar state, municipal and local laws, regulations, codes, ordinances and rules.
You agree, represent and warrant that:
- You and/or Your End Users are creators of the content of, and solely responsible for determining the destination(s) and recipient(s) of all Your Customer Communications, and all outbound communications made using Your Services and other products and services provided by or through EVAS;
- All content, communications, and any other data provided for transmission or storage through/in Your Services or Account will be provided solely for lawful purposes, and in no event any such content will violate any Law;
- No unsolicited advertisements, commercial messages, solicitations, third party marketing, or the like will be transmitted or distributed through the Services or Your Account in violation of the Law.
- At EVAS’s sole option and without further notice, EVAS may use technologies and procedures to screen and block such unsolicited communications at any time and without delivering them, or halt Your Services.
- You agree to indemnify and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from any and all Your and any third party claims, losses, damages, fines, or penalties arising: (i) out of Your violation or alleged violation of the Law; or (ii) otherwise related to any unsolicited communications that You, Your End Users, and any third party in connection with Your Account or Your Services may have sent and/or received.
Export Restrictions. You acknowledge and agree that the software, firmware, and/or hardware used in conjunction with Services may be subject to the United States and other foreign Laws and regulations governing the export, re-export, and/or transfer of technology. You agree, represent, covenant, and warrant that: (i) neither You nor any End User (nor any entity or person that controls You or any End User) is located in an Embargoed Area or listed on any Export Control List; or (ii) will export or re-export any EVAS software, firmware, or hardware into any Embargoed Area or to any person, entity, or organization on any Export Control List, or to any person, entity, or organization subject to economic sanctions due to ownership or control by any such person, entity, or organization, without prior authorization by license, license exception, or license exemption; and (iii) the Services and products and services provided by or through EVAS will not be used or accessed from any Embargoed Area, or used for any military or paramilitary purposes; and (iv) that You hereby represent, covenant, and warrant that it is Your responsibility to verify compliance and comply with all applicable U.S. and foreign Laws concerning the import and export of technology, including without limitation the export and import of telecommunication, encryption, and dual-purpose technologies.
Recording Communications. Certain features of Your Services may allow You and/or Your End Users to record and store recorded communications. The notification and consent requirements concerning the recording of communications may vary from state to state and country to country. You hereby represent, covenant, and warrant that You will review all applicable Laws before You use or allow Your End Users to use Services to record any communications; and You and Your End Users will comply with all applicable Laws and will always inform all participants if their communications are recorded; and You will notify all Your End Users and any third parties that they must comply with all applicable Laws relating to their use of communications recording features. Violations of the call recording Laws may be subject to criminal and civil penalties.
EVAS expressly disclaims all liability with respect to your recording of any conversations and/or any other communications. You agree to indemnify and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from any and all claims, including without limitation third party claims, losses, damages, fines, and penalties arising out of your violation or alleged violation of any communications recording and privacy laws. EVAS expressly disclaims all liability and all warranties with respect to recording of any communications.
Like most of the comprehensive commercial telecommunication solutions, and similar to most of the telecommunication service providers, EVAS may be required as part of the ordinary service delivery to screen, create copies, and/or store Your Customer Communications and/or associated meta-data due to technology requirements, service features (e.g., voicemail, call record details, etc.), system design (e.g., high availability and high assurance computing infrastructure requires creating copies of all system components and data), or limitations of the enabling technology. Nevertheless, certain communications EVAS is unable to screen due to the use of strong end-to-end communication security that EVAS may provide, where available. Though, EVAS may be unable to screen Your sensitive communications protected with end-to-end security, EVAS still requires a proper consent to comply with applicable Laws; therefore:
You acknowledge and agree that EVAS may have the ability and may access, screen, store, and make copies of some of Your, Your End Users’, and any entity’s and individual’s (that access Services in connection with your account) Customer Communications as part of the normal service delivery or in connection with the Service functionality. You hereby authorize, consent, and grant EVAS, its agents and service providers a right (that survives termination of this TOS) to fully access, screen, store, make copies, and transmit all Your, Your End Users’, and any entity’s and individual’s (that access the Services in connection with your account) communications, including all data to the full extent permissible by law. You also acknowledge and agree that EVAS is not able to screen and/or legibly record communications that are protected with strong end-to-end security (as EVAS recommends you use, and, where available, provides for transmitting sensitive communications), and therefore any such protected communications and data in case of a disaster, omission, error, malfunction, or similar event may not be recoverable, and may be lost completely and permanently. EVAS expressly disclaims all liability with respect to access, screening, recording, storing, transmitting, and copying of all communications and data whatsoever. You agree to indemnify and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from any and all claims, including without limitation, third party claims, losses, damages, fines, and penalties arising out of any violation or alleged violation of any communication recording or privacy laws, or any data loss, or any privacy breach whatsoever. EVAS expressly disclaims all liability and all warranties with respect to any access, recoding, screening, storing, copying, and transmitting of any communications and any data.
Prohibited Use of Services. Neither You or any of Your End Users or any entity or individual accessing the Services through Your Account may use or allow to use the Services in any of the following ways. In addition, You represent, warrant, covenant, and agree that neither You or any End User, or any entity or individual accessing the Services through Your Account will do any of the following during the Term:
- Use Services in any manner or for any purpose that is fraudulent, malicious, deceptive, abusive, obscene, threatening, harassing, tortious, improper, defamatory, libelous, slanderous, or in violation of any Law;
- Intentionally send or transmit unsolicited, “junk” or “spam” advertisements (commercial or otherwise) without consent, including without limitation through email, voicemail, SMS, facsimile, internet facsimile, or any other means that EVAS may provide now or in the future;
- Harvest or otherwise collect information about others, including without limitation email addresses, personally-identifiable and non-identifiable information of any kind;
- Intentionally engage in broadcasting of bulk communications through any means that EVAS may provide now or in the future;
- Perform auto-dialing or “predictive” dialing (i.e., non-manual dialing via software or device to continuously place out-bound calls or transmit any other communications);
- Transmit any communications that would violate any applicable Law, including but not limited to the Telephone Consumer Protection Act, the Junk Fax Prevention Act of 2005, the rules governing the Do-Not-Call Registry, Canadian Unsolicited Telecommunications Rules, and others;
- Intentionally transmit or store any material that contains malware, spyware, or any other malicious code;
- Transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value, including by creating a false caller ID identity, or forged email/SMS addresses, or any headers, otherwise attempting to mislead others as to the identity of the sender or the origin of any Customer Communications;
- Infringe, misappropriate, or otherwise violate foreign or domestic IP Rights or proprietary right of any party, including without limitation by transmitting or storing any material that might infringe on such rights, or be misappropriate, or otherwise violate any such right;
- Violate the right of privacy, personality, or publicity of any party, including without limitation by transmitting or storing any material that might violate any such right;
- Interfere with or disrupt Services, hinder or intentionally affect the Services in any manner that interferes with EVAS’s ability to provide products or services;
- Circumvent, bypass, exploit, or otherwise avoid Your obligations or the provisions, restrictions, and prohibitions set forth in this TOS;
- Sell; resell; distribute; lease; export; import; or otherwise grant or purport to grant rights to third parties with respect to Services;
- Display or use any EVAS Mark in any manner in violation of EVAS’s then-current policies on its trademark and logo usage, or without EVAS’s express prior written permission;
- Undertake, direct, attempt, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of Services, any software, firmware, or hardware provided by or through EVAS, unless EVAS expressly authorizes You in writing.
- Defeat, disable, or circumvent any security mechanism related to Services;
- Intercept, capture, sniff, monitor, modify, emulate, decrypt, or redirect any communications or data in any manner, unless EVAS expressly authorizes You to do so in writing;
- Allow any service provider or other third party, except EVAS’s authorized maintenance providers, acting with EVAS’s express authorization, to conduct maintenance or repair of Services;
- Gain access to or use (or attempt to gain access or use) the Services in any unauthorized manner, including, without limitation, through exploitation of vulnerabilities in security controls;
- Violate or take an action to jeopardize, limit, or interfere with EVAS’s IP Rights;
A breach of obligations in this Section constitutes a material breach of this TOS, such that EVAS at its sole discretion may suspend the Services or use of any product, terminate this TOS immediately, and take any other action that EVAS deems necessary.
CHARGES AND PLAN CREDITS
Please note that all prices, Taxes, surcharges, and fees are subject to change at any time. If EVAS does not specifically indicate other currency in the pricing documentation, all prices are in the U.S. Dollars and any payment to EVAS in any other currency, where applicable, will be converted to and settled in the U.S. Dollars. You are responsible for paying all charges for Your and Your End Users’ Services, according to Your Pricing Plan(s), and any other products and services that EVAS provides to You and Your End Users, and for all Taxes, surcharges, and fees EVAS imposes on You and/or Your End Users. Customers with a past due balance on previous or multiple accounts will be charged the full balance upon opening a new Account or at any time as EVAS deems appropriate. EVAS also reserves the right to charge termination and transfer fees consistent with the terms and conditions of this TOS.
Charges and Plan Credits. EVAS may offer one or more Service Plans, as well as supplementary free or paid features, products, and services. In many cases EVAS allows its customers to change a Service Plan after it was purchased. However, EVAS may charge You a fee for any such change when “downgrading” an existing Service Plan to a Service Plan with lower fees, such as “downgrading” from an unlimited Service Plan to a metered Service Plan. In addition, certain Service Plans may entitle You to receive discounts on equipment used with Services, if any, or other discounts, rebates, or promotional items. If You received any equipment, discounts, rebates, or promotional items associated with Your Service Plan and subsequently change that Service Plan to one that does not offer those discounts, rebates, or promotional items without completing its Term, You agree to reimburse EVAS, and hereby authorize EVAS to charge Your Payment Method on file, or invoice You, as applicable, for any such equipment, discounts, rebates, and promotional items.
Service Availability. You acknowledge and agree that the products and services, including without limitation the Services, may not be available one hundred percent (100%) of the time. EVAS or its suppliers may experience technical or other complications that may lead to unavailability or degraded performance of certain services, including some or all Services, and any associated products and services (“Unplanned Downtime”). EVAS and its suppliers may also perform scheduled or unscheduled maintenance of equipment and systems, as well as conduct training of personnel that may lead to interruptions of service, including the Services (“Maintenance”). EVAS will attempt, when possible, to notify You and Your End Users of any Maintenance ahead of time. However, it is Your responsibility to check appropriate documentation and resources, such as EVAS’s website, for any Maintenance schedules or Maintenance activity, and plan, prepare, and act accordingly. In case of an Unplanned Downtime of Services that lasts longer than fifteen (15) minutes in any calendar month, EVAS, at its sole discretion and on a case-by-case basis, may provide You a one-time discount that under no circumstances shall ten percent (10%) of Your prorated payment for that calendar month. Such discount may be applied only one time, regardless of the number of Unplanned Downtime events and their total length of time. Such discount shall be Your sole remedy for any Service interruption, deterioration, or other issues with respect to Unplanned Downtime of Services or any other services provided to You by or through EVAS.
EVAS expressly disclaims all liability with respect to any unplanned downtime, maintenance, or any other deterioration or outage of any product or service, including but not limited to the Services. You agree to indemnify and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from any and all claims, including without limitation third party claims, losses, damages, fines, and penalties arising out of any unplanned downtime, maintenance, or any other degradation or outage of any product or service, including but not limited to the Services. EVAS expressly disclaims all liability and all warranties with respect to any unplanned downtime, maintenance, or any other outage or deterioration of any product or service whatsoever, and expressly disclaims all liability and all warranties with respect to any adverse consequences arising from such, and EVAS’s ability to restore or repair any products or service.
Service Plan Credits. As part of Your Service Plan or other transactions with EVAS, EVAS may provide credits, such as Domestic Minute Credit, International Minute Credit, Toll-Free Minute Credit, Billing Credit, Account Credit, and other types of credits (“Credits”). Such credits, in no event have any monetary value or be exchangeable or exchanged for cash.
Certain Service Plans may include a number of monthly (or any other period) Usage call minutes (also referred to as “minutes”), such as: Domestic Minute Credit (“Domestic Minutes”), International Minute Credit (“International Minutes”), and Toll-Free Minute Credit (“Toll-Free Minutes”). The Credits can only be applied to specific Digital Lines that they were issued for, and within an Account they were issued for, and only within the specified validity term (other conditions and limitations may apply). Certain Service Plans may allow You to purchase such additional “minutes” if You exceed the number of such “minutes” provided in Your Service Plan. In addition, international calling may be charged at a different rate than domestic calling or have additional limitations, thus, a “minute” of one “minute” type under no circumstances will entitle You to a “minute” of another “minute” type, and they are not interchangeable or convertible.
EVAS may issue You another type of Credits—Account Credits that normally apply to all Service Plan services, unless EVAS indicates otherwise, except the services where the “minutes” apply, such as Usage of Digital Line call minutes. Account Credits may not be sold, transferred, assigned, or applied to any Account or customer; except the Account they were issued for.
The Credit terms, in addition to this TOS, may be outlined in the appropriate Service Plan documentation, or could be established by EVAS’s authorized sales or support representatives. In case of discrepancies between the Service Plan documentation and information provided by an authorized EVAS representative, the information provided by the representative, unless EVAS later determines otherwise, shall prevail. EVAS may provide You with certain bonus Credits and/or other promotional incentives upon fulfillment of the applicable promotion requirements. If Credit time term is not specified in the documentation, except the Billing Credit, Credit can only be applied within thirty-one (31) days of issuance, or before the end of the current then billing cycle of the Service Plan, whichever is the least, or as determined by EVAS. All Credits shall be applied, used, and expire according to this TOS and the terms of their purchase or issuance, including additional restrictions that such terms may include. EVAS reserves the right to amend such terms on issued and new Credits at any time and without notice.
Metered Service Plan. EVAS may offer a metered Service Plan that may include or has an option for You to buy a Digital Line(s). Such Service Plan may include an allotment of “minutes” for a Digital Line and it may include other billing items. When You exhaust the “minutes” allotted or when Your billing cycle is due, EVAS will bill Your Account for products and services as specified in your Service Plan, including for any “minutes” allotment(s) or the “minutes” You have already consumed. Any specified overages will be debited at their applicable rate(s). A Service Plan may require You to prepay some or all Services, or You may be able to consume Services first and EVAS will bill Your Account within a specified period or at specified date (post pay), or as indicated in Your Service Plan. A metered Service Plan may have no “minutes” allotment, where all Usage will be debited at the applicable rate(s), as specified herein and/or in Your Service Plan. In limited instances, some Services that You consume under a metered Service Plan may not be counted against Your Service Plan “minutes” allotment and You may not be billed for (e.g., calls made via a local phone number to check a voicemail, etc.). For international calling, international rates apply at all times. You may also be required under Your metered Service Plan to provide a deposit to EVAS that will be used at the end of Your Service Plan to pay for consumed Services. Otherwise, the deposit or any remaining part thereof will be returned to You within sixty (60) days if, at EVAS’s sole discretion, EVAS determines that no disputes, debts, or charges are remaining with or related to Your Account.
Unlimited Service Plan. EVAS may offer an unlimited Service Plan that may include or has an option for You to buy a Digital Line(s). Such Service Plan may include an unlimited allotment of “minutes” for a Digital Line, and it may include other billing items. Any unlimited allotment is subject to EVAS’s reasonable and acceptable use policy and available service capacity and resources. If EVAS, at its sole discretion determines that Your Usage of the unlimited Service Plan violates this TOS, or adversely affects EVAS, the Services, or other customers, or Your or Your End Users’ Usage violates EVAS’s reasonable and acceptable use policy, as EVAS determines and amends from time to time, than EVAS may, in its sole discretion with or without a notice to You, either terminate Your unlimited Service Plan, or immediately convert Your unlimited Service Plan to a metered Service Plan, as set forth above, or decrease the availability and/or performance of Your Services. For the avoidance of doubt, no unlimited International Minutes are offered under the unlimited Service Plan. All international calls are metered, and international rates apply at all times, including the calls from/to outside the continental United States. In addition, EVAS may require that You provide a deposit to EVAS that will be used at the end of Your Service Plan Term to pay for the Services consumed. Otherwise, such deposit or any remaining part thereof will be returned to You within sixty (60) days if, at EVAS’s sole discretion, EVAS determines that no disputes, debts, or charges are remaining with or related to Your Account.
Discounts. EVAS may offer promotions, discounts, rebates, and other promotional incentives (“Discounts”). You may provide, where applicable, a Discount code to EVAS at the time of purchasing Your Service Plan. Discounts may not be used cumulatively or retroactively, unless EVAS expressly states otherwise in writing.
BILLING AND PAYMENT
Service Plan Fees. The initial order sets forth, where applicable, one-time fees and the base recurring fees for the Service Plan, the allotment of “minutes” for a Digital Line, the billing period (billing cycle), and other allotments and billable items. Any applicable provisioning charges are billed in full in advance, unless EVAS expressly states otherwise in writing; and any support service charges, subscriptions, Usage, and other recurring charges are billed as per the Service Plan billing cycle. EVAS may bill you in arrears for certain Services and/or other products and service (e.g., “minutes” under the metered Service Plan, equipment return fees, etc.). Upon termination of Your Account for any reason or, if applicable, a Digital Line, all unused “minutes,” if any, shall expire in their entirety on the termination date. No refund, transfer or proration shall be made of any unused “minutes” or any other Credits, except Billing Credits.
Taxes and Fees. All fees for services advertised or otherwise listed on the EVAS website or in other promotional material are exclusive of any Taxes, unless EVAS expressly states otherwise in writing. You agree to pay all Taxes and similar liabilities that may now or hereafter be levied on the products and services that You and/or Your End Users buy from or through EVAS. Should EVAS pay or be required to pay any such liabilities, including any Taxes that were due but not charged or previously collected, You agree that EVAS may charge Your Payment Method on file or invoice You, as applicable, for such payments upon issuing to You an invoice, showing of indebtedness to EVAS.
Billing for Mid-Term Transactions. In the event that any purchase or transaction results in an incurred additional charge, and it occurs subsequent to the beginning of a Service Plan’s then-current billing cycle, EVAS may require that You honor such charge immediately—thus, EVAS may bill Your Account at that time. EVAS may also choose to pro-rate any charge for the remainder of the Service Plan Term and bill You conterminously with each subsequent cycle. You agree that EVAS may charge Your Payment Method on file or invoice You, as applicable, for such payment(s) upon issuing You an invoice, showing of indebtedness to EVAS.
Late Fees. You acknowledge and agree that any fees or charges not paid when due shall incur an interest at a rate of the lesser of: twelve percent (12%) per annum, or the highest rate allowed by Law. In addition, a late payment fee of twenty-five US Dollars ($25.00), or one percent (1%) of the total amount overdue, or the highest rate allowed by Law, whichever is more (“Late Fee”) shall be due at each subsequent billing cycle while the overdue amount exists. EVAS’s acceptance of the late or partial payment, regardless of how it is marked or designated shall not waive, limit, or prejudice in any way EVAS’s rights to collect any amount due. EVAS may terminate Services and this TOS for non-payment if any fees or charges are not paid or otherwise settled by You to the satisfaction of EVAS, in its sole discretion, within thirty-one (31) days of the due date, or in some cases immediately, as determined by EVAS. EVAS reserves the right to cancel, halt, or downgrade any of its products and services provided to You and Your End Users at any time in case of Your non-payment to EVAS. You agree that EVAS may charge Your Payment Method on file or invoice You, as applicable, for all Late Fees, collection expenses incurred by EVAS, and all other costs, interests, and fees related to Your non-payment or delay of payment upon issuing You an invoice, showing of indebtedness to EVAS.
Form of Payment. All fees and charges can be paid to EVAS by check, credit or debit card, or a direct debit of Your bank account (“Payment Method”). You agree to be liable for all processing fees, including but not limited to foreign exchange fees and currency conversion costs, as EVAS may incur, or the maximum amount allowed by Law. For any charge attempt of Your Payment Method that was not honored by Your financial institution, EVAS may charge You a twenty US Dollars ($20.00) processing fee, or the highest amount allowed by Law. You agree that EVAS may charge Your Payment Method on file or invoice You, as applicable, for such payment(s).
When You register an Account or subscribe to a Service Plan, EVAS may require You to provide a Payment Method(s) and authorize EVAS, or its designated agent(s), to collect from the Payment Method You have provided. Any authorization to charge Your Payment Method will remain valid for at least ninety (90) days after You withdraw the authorization, or immediately upon provision of a replacement valid Payment Method. Upon termination of this TOS, EVAS will charge You any outstanding amounts and disconnect Your Services. You agree to advise and notify EVAS and/or its designated agent(s) of any changes to Your Payment Method(s), such as a new credit card number, expiration date, etc. If the Payment Method registered with Your Account is declined or fails for any reason, EVAS will use reasonable efforts to contact You and advise You of the failed Payment Method verification or failed billing attempts. Notwithstanding the foregoing, EVAS reserves the right to disconnect Your Services and terminate Your Account if Your payment method is declined or fails for any reason, or if You withdraw authorization to charge a valid Payment Method and do not provide an alternative valid Payment Method. EVAS reserves the right to continue to attempt charging Your Payment Method for any outstanding charges and pursue any other legal remedies available to EVAS.
Disputed Amounts. You will waive the right to dispute any billed amount if You do not dispute such amount within thirty-one (31) days of the date of its billing. In the event that You timely dispute a billed amount and EVAS confirms that You were over-billed, EVAS shall credit the applicable Account in the amount of the over-billing (“Billing Credits”). Billing Credits shall be EVAS’s sole and exclusive obligation and Your sole and exclusive remedy with respect to any erroneous billing, unless EVAS in its sole discretion determines otherwise. Notwithstanding the foregoing, if You request that Your financial institution performs a chargeback or decline to process a payment without first contacting EVAS to dispute the charge, and EVAS subsequently determines that the charge(s) at issue are not erroneous, EVAS reserves the right to terminate Your Account and any services immediately and take any available legal action. You are solely liable for all transactions and Usage related to Your Account, whether by You, any End User, or any other user in connection with Your Services, and in no event shall EVAS, its partners, agents, service providers, licensors, resellers, and suppliers be liable for any unauthorized use whatsoever of Your Account.
CUSTOMER COMMUNICATIONS AND ACCOUNT DATA
Passive Conduit Role. The Parties acknowledge and agree that: (i) EVAS’s role with respect to Customer Communications and the content thereof shall be that of a passive conduit; and (ii) any storage of Customer Communications and/or Account Data by EVAS shall be performed merely as a convenience to You and as a compliment to and incidental to EVAS’s core data transmission function, unless such data storage is a part of or a feature of Your Service Plan.
Disclaimer of Data Storage Responsibilities. You acknowledge and agree that: (i) EVAS shall have no obligation to store, retain, transmit, back-up, or ensure the availability of any stored Customer Communications and/or Account Data, unless such data storage is a part of or a feature of Your Service Plan; (ii) to the extent that You wish to retain any Account Data and/or Customer Communications, or other information related to Your Services, Your Account, or other EVAS’s products and service, You shall ensure that, where available, such information is downloaded, saved, and/or backed-up outside of Your Services or Account; (iii) You shall not rely on Your Services or Account as a repository for or means by which to retain, store, or back-up Your Customer Communications and/or Account Data or any other data, unless such data storage is a part of or a feature of Your Service Plan; (iv) EVAS may delete or purge any and all copies and versions of any stored Customer Communications and/or Account Data or other data at any time, without notice, including without limitation, after You delete any such information from an Account or after termination of this TOS or closure of Your Account; and (v) EVAS may, in its sole discretion and without a notice to You or Your End Users, implement reasonable limits as to the size, availability, reliability, security, and duration of storage of any Customer Communications and/or Account Data, and any other data, whether such services are part of or a feature of Your Service Plan or not.
Access to Account Data. You and Your End Users may be able to access, where available, some Account Data and stored Customer Communications only via the relevant Customer Portal or as EVAS otherwise specifies. You acknowledge and agree that EVAS will not provide You, Your End Users, or any third parties designated by You any access to Account Data or stored Customer Communications, except as otherwise set forth herein or as required by Law.
Information Gathering and Production. You acknowledge and agree that under no circumstances this TOS obligates EVAS to perform the following: (i) investigate, access, correct, alter, gather, compile, review, verify, or produce any Account Data, Customer Communications, or any other records, documents, and evidence related to You, Your End Users, Your Services, and any other products and services provided by or through EVAS, unless EVAS expressly states otherwise in writing; (ii) provision of legal or other counsel or consulting; or (iii) provide assistance with installation, tuning, administration, maintenance, repair, deployment, integration, cessation, or configuration of any system, device, or network that is outside of the EVAS’s authority or control, or that is not covered in Your Service Plan or another agreement between You and EVAS. For the avoidance of doubt, except as provided herein or required by Law, EVAS is not obligated to: (i) determine, prove, or disprove any fact or claim; (ii) pursue or defend against any claim, allegation, action, lawsuit, demand, or proceeding; (iii) substantiate any party’s compliance with any Law or Legal Process; (iv) respond to or comply with any request or demand; (v) identify any party; or (vi) conduct any surveillance.
Export of Account Data. You acknowledge and agree that any Account Data, stored Customer Communications, or other information or materials that You, where available, may export, will not be under EVAS’s control and will not be subject to EVAS’s technical and other controls. You, Your End Users and any entity or individual accessing Your Account, Your Account Data, or Your Customer Communications must comply with all applicable Laws and regulations.
Release. You hereby release, discharge, and hold harmless EVAS, its agents, partners, service providers, licensors, resellers, and suppliers from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section.
No PHI. You acknowledge and agree that Services are not intended for use as a repository or means by which to store PHI, as defined under the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and similar legislation in other jurisdictions, and the regulations promulgated pursuant thereto (such laws and regulations, “HIPAA”; such information, “PHI”) on a non-temporary basis; and You represent and warrant that You will not use Services and any ancillary product or service that is a part thereof for such purpose without EVAS’s prior express permission.
Unless EVAS specifically states it in the applicable Service Plan documentation, EVAS makes no representation, warranty, or guarantee that your Services (or the use of any of the foregoing by any party) complies or will comply with HIPAA or any other regulation or standard, or will render any party compliant with HIPAA or any other regulation, unless EVAS expressly states otherwise in writing.
HIPAA Enablement. EVAS may provide certain controls relevant to HIPAA requirements (“HIPAA Controls”) for its United States-based customers. And so, You further acknowledge and agree that:
- Activation of HIPAA Controls may result in automatic and permanent deletion from the applicable Account(s) of Customer Communications and other data that is stored in those Account(s);
- If any Customer Communications or other data that must be deleted is thirty (30) or more days old and currently stored in the applicable Account(s), it may be permanently deleted from such Account(s), and such deletion may occur as soon as immediately after activation of the HIPAA Controls, and thus, you authorize EVAS to permanently and irrevocably delete now and continue deleting in the future at any time any such data from your Account(s) and all parts and components of Your and Your End Users’Services, including any relevant systems and End Points, as well as anywhere within the information technology infrastructure under EVAS’s control;
- The deletion functions described above may permanently delete Customer Communications such that they are not retained by EVAS in any form (including on any back up or disaster recovery system);
- The HIPAA Controls may disable SMS messaging and other functionality in applicable Account(s) and on Digital Lines.
You hereby release, discharge, and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from and against any and all liability relating to or arising from its acts, errors, and omissions in accordance with this section.
DIGITAL LINE NUMBER POLICIES
Digital Line Number Availability. EVAS may make available certain Digital Lines for Your and/or Your End User selection and assignment. You acknowledge and agree that EVAS’s listing of a Digital Line number (may be referred to as “number”) may be erroneous and does not constitute a representation or guarantee that such “number” is actually available for such assignment. Therefore, You and Your End Users authorize EVAS and agree that EVAS can remove any “number” from any Account(s) in the event that it is not actually available, or if EVAS in its sole discretion determines that such action is necessary.
You hereby release, discharge, and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from and against any and all liability relating to or arising from its acts, errors, and omissions in accordance with this section.
Porting Law. Number porting is defined and regulated by the Federal Communications Commission (“FCC”).
Number Port-In Request Procedures. In order to request the porting of a Digital Line number into an Account, the Account Administrator into which You wish the Digital Line number to be ported must provide all information that EVAS requires as part of the number port-in request process, which may include without limitation an executed Letter of Agency.
Porting Process. In order to request a port-out of a Digital Line number assigned to Your Account to another service provider, You must follow the instructions of that service provider. You acknowledge and agree that (i) porting of a Digital Line number into or out of Your Account requires You to provide certain information to EVAS and/or EVAS’s designated agent and/or a service provider; and (ii) You must complete certain procedural steps that involve, among other things, providing to EVAS sufficient proof that You have a right to request such porting. Therefore, completion of any Digital Line number porting request, and the time required for such request to be completed, depends on factors outside of EVAS’s control.
Thus, EVAS specifically makes no representation, warranty, or guarantee that any Digital Line number can be ported-in or ported-out to/from Your Account, and that EVAS will be able to maintain an assignment of a Digital Line number to your account, and that EVAS, its service providers, and/or agents will be able to port any Digital Line numbers upon Your or Your End Users’ request.
Unauthorized Port-Outs. You acknowledge that Digital Line numbers may be ported out from Your Account due to acts, errors, and omissions of EVAS and/or third parties, and it may be difficult or impossible for EVAS to: (i) prevent such port-outs; (ii) retrieve Digital Line numbers ported-out of Your Account; or (iii) port such Digital Line numbers back into Your Account. EVAS has no responsibility or liability due to such erroneous port-outs. You hereby release, discharge, and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from and against any and all liability relating to or arising from unauthorized or erroneous porting-in or porting-out, and inability of EVAS to port-in or port-out any Digital Line number.
Accurate Porting Information. You agree, represent and warrant that all information and representations that You and/or Your End Users provide in connection with any request to port-in or port-out Digital Line numbers, including without limitation any information and representations made in any Letter of Agency, or by any party acting on Your and/or Your End Users’ behalf, or with Your direction, request, or permission will be true, accurate, and complete.
Customer Compliance with Porting Laws. You acknowledge and agree that porting Digital Line numbers is subject to telecommunications and other Laws and may be subject to third party terms and conditions. You agree, represent, and warrant that neither You or any of Your End Users, or any party acting on Your behalf, or with Your direction, request, or permission will at any time: (i) violate any applicable Law or engage in any fraudulent or deceptive conduct; (ii) engage in or facilitate fraudulent porting of any Digital Line number; or (iii) change or attempt to change anyone’s communications service provider without first obtaining a proper requisite consent and authorization; or (iv) violate contractual or other obligations existing with other service providers or other third parties.
Release of Digital Lines. You acknowledge and agree that in the event of Your Account termination or cancellation, all Digital Line numbers associated with Your Account that have not been previously ported to another service provider, will be released. Likewise, cancellation of a Digital Line may result in its release if such Digital Line number has not previously been ported to another service provider. You acknowledge and agree that it is Your responsibility to work with third party service providers if You wish to port-out any Digital Line number prior to terminating or cancelling that Digital Line or Your Account.
Customer’s Digital Line Number Publication. Neither You or any End User shall publicize, list, or communicate any Digital Line number that You or Your End User believe to be assigned to Your Account unless and until You have verified that such Digital Line number is active and functioning as desired. You shall place a test call to and from such Digital Line using both the Service and non-EVAS service to verify that the Digital Line works as expected and that fees and charges incurred are acceptable to You.
You hereby release, discharge, and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from and against any and all liability relating to or arising from EVAS’s inability to provide You a Digital Line number, or EVAS’s inability to maintain an assignment of a Digital Line number to your account.
The Account owner shall be the legal entity that signs up for the Account with EVAS. If no legal entity is provided or permitted in the sign-up process, the Account owner shall be the individual that registers the Account. This individual shall also be the owner of the Payment Method used to open the Account. Subsequent changes to the ownership must be supported by appropriate legal documentation.
Account Disputes. You agree that in no event shall EVAS be obligated to, or shall You request that EVAS participates in, or act as the arbiter, adjudicator, or intermediary with respect to any claim or dispute relating to the ownership or control of, or rights related to any Service Plan, any Account, any Digital Line, any Account Data, any Customer Communications, or anything else related to Your Services or other products and services provided by or through EVAS (“Account Ownership Disputes”). In the event of any Account Ownership Dispute, EVAS reservices the right to take any course of action that it deems to be appropriate, including without limitation declining to take any action.
Access to Account Data and Customer Communications. As permitted or required by Law, EVAS may access, monitor, use, transmit, and disclose Your Account Data, Customer Communications, and/or personal information to: (i) comply with the Law or respond to a lawful request or legal process; (ii) protect the rights or property of EVAS, its agents, members, customers, and others; (iii) enforce agreements, policies, and this TOS; (iv) verify any information You provide in order to assure compliance with the Law; (v) respond to emergencies; (vi) initiate, render, bill, and collect a payment for products and services; or (vii) facilitate or verify the appropriate calculation of Taxes, fees, or other obligations.
You agree to release, discharge, and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from and against any and all liability related to or arising from EVAS’s acts, errors, and omissions related to any account ownership dispute or in seeking to comply with the Law or legal process.
SERVICE REQUIREMENTS AND LIMITATIONS
Caller ID Display Limitations and Compliance. You acknowledge and agree that the disclosure and/or display of information related to the origination of calls, messages, and other communications (“Caller ID” information) may be subject to legal requirements, including those related to the accurate display of such information or the enforcement of certain privacy instructions, settings, and the like. You agree to comply with all such applicable Laws and regulations, including without limitation the Truth in Caller ID Act. EVAS has no obligation to disclose, display, or transmit any such information for or in connection with any Customer Communications. You agree to indemnify and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from any and all Your, Your End Users’, and/or any third party claims, losses, damages, fines, and penalties arising out of Your or Your End Users’ breach of this section.
Voice-to-Text Feature. You acknowledge and agree that: (i) any and all Voice-to-Text Features of Services are provided merely as a convenience and may not accurately transcribe voice content, articulate text messages, or perform such functionality for all voice content or text messages or for the entirety of voice content or text messages; (ii) neither You or any End User may rely on the Services Voice-to-Text Feature, if available, to perform accurate transcription or articulation; and (iii) You and Your End Users shall be responsible for reviewing and/or listening to the original content of any Customer Communications or other media as necessary or appropriate, in order to prevent You, Your End Users, or any other party from incurring any cost, expense, liability, loss, damage, or harm.
Advanced Security. EVAS may provide additional security features as part of Services or other products or services that may include encryption of some Customer Communications, and/or other security-related functionality (“EVAS Security”). You acknowledge and agree that: (i) any and all EVAS Security features are provided merely as a convenience and may not be sufficiently reliable, function as intended or described, be compliant, comply, or enable You to comply with standards or regulations, be free of errors and/or vulnerabilities, whether known to EVAS or not, or be suitable for Your intended use or application; (ii) no computer system can provide complete security under all conditions and configurations—therefore, it is Your responsibility to configure and deploy the Services and any other products and services provided to You by or through EVAS, in a secure and reliable manner per the best practices generally accepted information technology industry, and as recommended by EVAS, and maintain such configuration at all times, including, but not limited to administrative and technical security controls, in addition to physical security of all End Points at all times, security of applicable Services, and Your security-related procedures and processes; (iii) neither You or any of Your End Users, or any other user of Services (or other products or services) may rely on any EVAS Security as being non-circumventable or unbreakable at all times and circumstances; and (iv) You acknowledge and agree that any of Your and Your End Users’ use of EVAS Security is done at Your own/their risk, and EVAS is not liable for any unavailability, interruption, malfunction, breach, error, omission, or underperformance of EVAS Security and any cost, expense, liability, loss, damage, or harm incurred by You or any other party as a result of Your use or not use of EVAS Security. You agree to indemnify and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from any and all Your and/or any third party claims, losses, damages, fines, or penalties arising out of this section.
Network Sufficiency. You acknowledge and agree that: (i) Services require a properly configured, high performance broadband IP network and connection; (ii) use of Services with any lesser capable network service may result in partial or complete unavailability, interruption, or underperformance of Services; and (iii) 4G and lower grade networks are not recommended for use with Services. Accordingly, You agree to provide and maintain at Your cost, an IP network service that meets or exceeds the foregoing standards, and all equipment that is necessary for Services to utilize such network. EVAS, its partners, agents, service providers, licensors, resellers, and suppliers are not responsible and not liable for any unavailability, interruption, or underperformance of Services and any other products or services that utilize Your IP network, as a result of unavailability or underperformance of Your IP network or equipment.
Use of Third Party Devices. EVAS does not guarantee or make any representation or warranty that any IP Desk Phones, software, firmware, hardware, or any other information technology products or services will work or be compatible with Services or will support its full performance, quality of service, or functionality.
Use of Network. The Services, IP Desk Phones, Softphones, and other products and services that may be provided by or through EVAS may be able to transmit information over a network and/or be configured to utilize network services, including, mobile data services, and where applicable, make and receive telephone calls and/or transmit information using Your paid data services. Since EVAS does not provide or enable access to the Internet, this may result in increased data usage costs and charges from the Internet service provider You are using. EVAS is not responsible for any such fees, charges, and costs, and all other charges that you may incur as a result of using EVAS’s products and services.
SUPPORT AND FEEDBACK
Support Channels. EVAS may provide support services to You and/or Your End Users only via the support channels designated by EVAS. Such support channels may be specified in Your Service Plan, Your Account, or accompanying documentation. In case if support channels are not specified, EVAS support shall be limited to electronic help desk, and the scope of support shall be limited to questions related to products and services of Your Service Plan and billing questions only (“Standard Support”).
Standard Support. Standard Support shall not include, and EVAS is not obligated to perform any of the following, unless EVAS expressly states otherwise in writing: (i) on-site support; (ii) implementation of any software or hardware; (iii) configuration, administration, maintenance, or cessation of any device, software, firmware, hardware, and any information technology service or product; (iv) dedicated representative support; and (v) any support on issues that EVAS at its sole discretion determines to be outside of Your Service Plan or scope of Services, or for which EVAS at such time does not provide support services. EVAS may charge You and/or Your End Users a fee for support services as may be specified in Your Service Plan or other documentation, as well as any additional costs beyond ordinary support costs that EVAS incurs as a result of providing You or Your End Users the support services (e.g., shipping, handling, translation, long distance, etc.). You agree that EVAS may charge Your Payment Method on file or invoice You, as applicable, such support fee(s) upon issuing You an invoice, showing of indebtedness to EVAS.
Support Limitations and Other Support Levels. EVAS may, in its sole discretion and without a notice, impose reasonable limits to the support services provided to You and/or Your End Users, or the amount of support services provided per Account or End User (a maximum number of open issues (tickets), phone calls per a time period, etc.). EVAS may limit the support to Account Administrators only and not offer support to End Users or limit the support services to only certain groups of Administrators and/or End Users. EVAS may provide other levels of support services on different terms and pricing than the forgoing. All support services are provided on reasonable best effort basis, provided to You by EVAS merely as a convenience; and support services, their scope, and performance are subject to availability in your country or region. All support services are provided in English language only and within EVAS’s normal business hours (Eastern Standard Time (EST)), unless EVAS expressly states otherwise in writing. EVAS is not responsible for any fees, charges, and costs, and all other charges that you may incur from third parties as a result of EVAS providing support services to You, Your End Users, or anyone else. You agree to indemnify and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from any and all Your and/or any third-party claims, losses, damages, fines, or penalties arising out of this section, and/or Your use or not use of EVAS support services.
Support Access. Any Administrator and, where applicable, End User contacting EVAS support may be required to provide certain identification and authentication information (e.g., answer a security question on file or provide a government-issued ID, etc.) to receive support. EVAS may limit the level of support that it will provide or the scope of information that will be disclosed to any inquiring End User based on the scope of his or her Account rights and permissions, or other agreements between EVAS and customer, defining the EVAS support and/or supported products and services.
Surveys. From time-to-time EVAS may send surveys, comment cards, customer satisfaction forms, or other requests to provide feedback. You hereby grant EVAS, its agents, partners, licensors, licensees, and suppliers a perpetual, unlimited, worldwide fully paid up, royalty free license to use all feedback, answers, ideas, comments, or other information that came from You, Your End Users, and all other entities and individuals that have accessed the Services or other resources in connection with You, Your End Users, or Your Account.
PRODUCT AND SERVICE CHANGES
Change Acceptarce. You acknowledge and agree that EVAS can make changes to Services, Service Plans, and any other product and service that EVAS provides now or may provide in the future (a “Change”), without a prior notice to You. Such changes may or may not materially diminish the functionality of any such products and services. In the event of such change, in EVAS’s reasonable discretion and judgment, if such change permanently and materially diminishes or impairs the functionality of any EVAS’s product or service that You use and pay for, and such Change is unacceptable to You, and EVAS does not provide a reasonable, in EVAS’s sole opinion, alternative, You may request termination of such product or service without a penalty within thirty (30) days of the Change. EVAS will then review Your request as promptly as possible and will, at its sole discretion, either approve or deny such request. You agree that any such decision made by EVAS is final. Any use of EVAS’s product or service after thirty (30) days of the Change will be deemed Your acceptance of the Change. EVAS is not responsible for any fees, charges, and costs, and all other charges that you may incur from third parties as a result of EVAS making a Change. You agree to indemnify and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from any and all Your and/or any third-party claims, losses, damages, fines, or penalties arising out of this section and/or EVAS making a Change to Services, Service Plan(s), and any other product or service that EVAS may be providing to You.
ADDITIONAL TERMS OF SERVICE
The Services may include one or more Voice over the Internet Protocol-based (“VoIP”) Digital Lines. Such VoIP services may be referred to as a “VoIP Service”, for which the following additional terms shall apply:
Operator Assisted Calling. EVAS may not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, or calling card calls, unless EVAS expressly states otherwise in writing. Your Service Plan may not provide 211, 311, 411, 511, and/or other N11 calling features, except as otherwise provided in this TOS, or if EVAS expressly states otherwise in writing.
Additional Licenses. The Services may also be governed by additional terms of certain other licenses, including any applicable open-source licenses. The Services and other products and services may also be licensed by EVAS under certain patents. Please refer to the EVAS’s website and documentation for details.
Emergency Service Limitations. EVAS may be able to provide access to certain emergency services in some countries, such as 911 service in the United States and Canada. If such service is available, it may differ depending on Your location or the device You are using, and it works differently than You may have experienced using traditional wireline or wireless telephones. Access to emergency services in foreign countries, where available, is subject to the limitations set forth in this TOS.
Disclaimer of Liability for Emergency Services. You agree that EVAS, its partners, agents, service providers, licensors, resellers, and suppliers shall not be responsible or liable for, and You agree to fully, finally, and forever release, discharge, indemnify, and hold harmless EVAS, its partners, agents, service providers, licensors, resellers, and suppliers from and against any claim based on, resulting from, or relating to any acts or omissions related to the handling of, or not handling of, or response, or lack of response, to any emergency call or other communications in connection with Service or any other product or service provided by or through EVAS.
Publicity Rights. You agree that EVAS may identify You and/or Your End Users as a user of Services in its business deals, press releases, marketing materials, electronic, printed, and broadcast advertising, newsletters, mailings, tradeshows, other promotional materials, on EVAS’s website, or any other third-party website where EVAS or its designated agents may promote EVAS and/or its products or services. You hereby grant EVAS, its partners, and agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
Copyright Infringement. Pursuant to the Digital Millennium Copyright Act of 1998 (17 U.S.C. § 512) (the “DMCA”) upon good faith belief that copyrighted content transmitted or stored via Services is infringed, the copyright owner or its agent may send EVAS a notice requesting removal of the infringing content or blocking access to it. Also, the DMCA allows a party against whom a notice of copyright infringement has been filed to submit a counter-notice. Notices and counter-notices must meet the then-current statutory requirements implemented by the DMCA. Notices and counter-notices may be sent to EVAS at firstname.lastname@example.org.
The notice must include: (i) an electronic or physical signature of the owner (or person authorized to act on behalf of the owner) of the copyrighted work; (ii) a description of the copyrighted work that is claimed to have been infringed upon; (iii) information reasonably sufficient to permit EVAS to locate the copyrighted work; (iv) address, telephone number, and e-mail address of the owner of the copyrighted work; (v) a statement by the owner of the copyrighted work or its agent asserting good-faith belief that the use in question is not authorized by the copyright owner, its agent, or the Law; and (vi) a statement by the owner of the copyrighted work or its agent, made under penalty of perjury, that the foregoing information in the notice is accurate and affirming ownership of the copyright or authorized to act on the copyright owner’s behalf.
Any notice or counter-notice must be truthful and must be submitted under penalty of perjury. Upon receipt of the notice, EVAS may make a good faith attempt to transmit the notice to the party who has transmitted or received the allegedly infringing copyrighted work, and to transmit any counter-notification to the complaining party. EVAS may, at its sole discretion, suspend, terminate, or disconnect ’s access to and use of Services, Account, and any other services if it is deemed that such party has engaged in more than one instance of copyright infringement.
Indemnification. To the maximum extent permitted by Law, You shall indemnify and hold harmless, individually and collectively, EVAS, its affiliates, agents, resellers, suppliers, licensors, and other providers who furnish goods and services to You in connection with Services and/or other products and services provided to You by, through, or in connection with EVAS, and their officers, directors, managers, employees, and shareholders (the “Indemnified Parties”) from and against any and all liability whatsoever, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from or related to: (i) Your, or Your End User, or any third party acting with Your permission, knowledge, authority or direction, use of or reliance upon any product or service provided to You by or in connection with EVAS; (ii) a breach of this TOS by You, or any End User, or any user in connection with Your Account or Services; (iii) any negligent act, omission, failure to act, or willful misconduct by You, Your End Users, or any third party acting with Your permission, knowledge, authority or direction; (iv) the inability to use Services or any other products or services provided by, through, or in connection with EVAS, or failure or outage of any such product or service for any reason, or any error or omission, including but not limited to those related to emergency services; (v) the use of products and services provided by, through, or in connection with EVAS in violation of any applicable Law, code, regulation, or ordnance; or (vi) the misappropriation, breach, violation, or infringement of any right, title, or interest of any third party, including but not limited to, contractual rights, Intellectual Property rights, rights of privacy, and rights of publicity and personality.
Metered Service Plan Termination. Metered Service Plan customers may cancel or terminate the Service Plan with or without cause at the end of any billing cycle, subject to the restrictions and fees provided in this TOS, and any additional agreements governing such products and services.
Unlimited Service Plan Termination. Unlimited Service Plan customers are purchasing this Service Plan for the full length of the applicable Initial Term as indicated in the Service Plan documentation. If no Initial Term is provided in the documentation, the unlimited Service Plan Initial Term shall be twelve (12) months from the time of purchase, and any Renewal Term shall equal the Initial Term. If you are not satisfied with Your unlimited Service Plan, you have thirty-one (31) days from the date of purchase to request a prorated refund. After thirty-one (31) days, if You terminate the unlimited Service Plan prior to the end of its Initial Term or subsequent Renewal Term(s), subject to applicable Law, You are responsible for all charges for any remaining time left on the Term as if You remained a customer through the end of the then-current Term, including, without limitation, outstanding charges, unbilled charges, Taxes, and fees, including any applicable disconnection fees. In addition, You will not be entitled to a refund for any unused portion of prepaid charges, if any, and deposits.
Generally. You understand and agree that EVAS may at any time, and without notice to You, terminate, modify, suspend, disconnect, discontinue, or block access to some or all features of Services and other products and services provided by or through EVAS if:
- EVAS determines or reasonably suspects that You have materially breached this TOS;
- EVAS determines that You have created or caused to be created multiple free trials, where available, with intent to deceive or defraud EVAS or any other party;
- EVAS determines that You have used or intended to use a fraudulent Payment Method;
- EVAS determines that You have insulted, abused, or harassed any of its employees, contractors, agents, or other representatives;
- You have not complied with any applicable Law or regulationor EVAS is made aware of allegations of the same.
- EVAS is ordered by law enforcement or another government agency to suspend or terminate any services provided to You or any of Your End Users;
- You bring any legal action or proceeding, including without limitation in any court, regulatory, or administrative body, arbitral body, or mediator, against EVAS or its employees, contractors, agents, or other representatives, or participate in any class action lawsuit against EVAS or its employees, contractors, agents, or other representatives;
- You file a petition in bankruptcy or if a petition in bankruptcy is filed against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over any of Your relevant property;
- EVAS determines that such action is necessary: to protect, maintain, or improve any products or services; to prevent fraud or misrepresentation; to protect EVAS, its customers, or other third parties affiliated with EVAS; or for any other good cause;
- You violate the Law or this TOS;
Upon any termination or suspension of Services, EVAS may immediately deactivate or delete Your Account and all related data in Your Account or in connection with any of Your Services or other products or services, and/or restrict any further access to such data or systems. EVAS shall not be liable to You, or any End User, or any third party for any reason for terminating or suspending Your use or access to any of the products and services provided by, through, or in connection with EVAS.
If You or EVAS terminate or suspend Your right to use any products or services provided by or through EVAS, You shall not be entitled to any refund, including any deposits, if applicable, or proration of any pre-paid amounts, Credits, or any other amounts paid to EVAS prior to the termination or suspension date, unless EVAS determines and expressly states otherwise in writing.
To the extent permitted by law, the Services and other products and services provided by or through EVAS are provided “as is” and “as available,” and EVAS makes no warranties, express or implied, including but not limited to the implied warranties of merchantability, infringement, title, quiet enjoyment, and fitness for a particular purpose, and any warranties arising from a course of dealing or usage in trade, together with similar warranties, whether arising under any law or otherwise. Specifically and without limiting the foregoing in any way, EVAS specifically disclaims any warranty: (i) that any product will meet any particular requirements; (ii) that any product will be uninterrupted, timely, secure, error-free, or that any defects in any product will be corrected; or (iii) relating to the accuracy or reliability of the results obtained through use of Services, any Account, or any product or service provided by EVAS, or any Customer Communications, data, or content downloaded or otherwise obtained through the use of any of the foregoing. The parties agree, and it is their intention, that in no event shall any warranty provided by law apply unless required to apply by applicable statute, notwithstanding their exclusion by contract. To the extent that EVAS cannot disclaim any such warranty as a matter of applicable law, the scope and duration of such warranty shall be limited to the fullest extent permitted by law. Some jurisdictions do not permit the disclaimer of certain implied warranties, so certain of the foregoing disclaimers may not apply to you. To the extent that EVAS cannot disclaim any such warranty as a matter of applicable law, the scope and duration of such warranty will be the minimum permitted under such law.
LIMITATION OF LIABILITY
Consequential Damages. In no event shall EVAS be liable to you or any third party for costs of procurement, cover, or substitution goods or services; loss of use, data, equipment, products, business opportunities, or profits; interruption of business; transactions entered into or not entered into; or special, exemplary, indirect, incidental, consequential, reputational, or punitive damages of any kind, however caused and whether arising under contract, warranty, tort (including negligence or strict liability), or any other theory of liability, even if EVAS has been informed in advance of the possibility of, or could have foreseen such costs, losses, or damages.
Direct Damages Cap. Except as set forth below, EVAS’s total aggregate liability shall not exceed the Service Plan fees payable hereunder during the one (1) month immediately prior to the date of the event(s) giving rise to the liability. The limitation of liability set forth in this sub-section does not apply to: (i) your liability for gross negligence or willful misconduct; or (ii) your liability arising from your actual or alleged breach of EVAS’s 911 policy, acceptable use policy, Digital Line number policies of this TOS.
Scope and Exceptions. The limitations and exclusions set forth in this section shall apply to the fullest extent permitted by law, and shall not disclaim, limit, or cap customer’s obligation to pay any fees or charges or other amounts owed to EVAS or any damages to which EVAS is entitled under applicable law for infringement of IP or other rights; reflect the allocation of risk between the parties, and shall survive termination or expiration of Your Service Plan and apply in any and all circumstances, including without limitation in the event of any failure of the essential purpose of any limited warranty provided herein. Some jurisdictions do not allow certain limitations of liability, so some of the foregoing limitations may not apply to you.
Relationship of the Parties. The Parties’ relationship under this TOS is that of independent contractors. Nothing in this TOS shall constitute or create any employment, partnership, association, joint venture, agency, or fiduciary relationship between the Parties. Neither Party shall have the authority to bind or obligate the other Party in any way.
Notices. Notices to You shall be effective on the date sent to Your registered electronic mail address when sent by email or, at EVAS’s option, three (3) days following the date deposited in the regular United States Mail, postage prepaid, and addressed to Your current address on the Account. You are responsible for notifying EVAS of any changes in Your contact information or address through Your Account settings page or by contacting EVAS. Written notice to EVAS shall be effective when received by EVAS at the following email email@example.com or when received at EVAS’s then-current address as posted on the EVAS’s website. Your notice must specify at minimum Your full name, Account information, and address for reply. All notices from You to EVAS must be made in writing.
Force Majeure. Excluding either Party’s payment obligations under the Agreement, neither Party shall be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party’s reasonable control, including without limitation any act of God; national emergency; riot; war; terrorism; governmental act or direction; Laws; breach, delay, act, or omission of any supplier, carrier, contractor, subcontractor, or business partner; failure, outage, or unavailability of third party network(s) or system(s); fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; criminal acts of third parties, earthquake; storm; hurricane; flood, fire, or other natural disaster; or strike or labor disturbance (each a “Force Majeure”). In the event that a Force Majeure prevents a Party’s performance for more than forty-five (45) consecutive days, either Party may terminate the particular agreement(s) impacted.
Third Party Beneficiaries. Nothing in this TOS, express or implied, is intended to or shall confer upon any person or entity other than the Parties themselves any right, benefit, claim, or remedy as a third-party beneficiary or by any other nature whatsoever under or by reason of this TOS.
Choice of Law. This TOS and Your use of Services shall be governed by and construed under the laws of the State of Virginia of the United States without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this TOS or Your use of Services.
Dispute Resolution and Optional Arbitration. In the event of any dispute, claim, question, or disagreement between You and EVAS (“Dispute”), You and EVAS shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, You and an authorized representative of EVAS shall consult and negotiate with each other in good faith and, recognizing of mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. Neither You nor EVAS shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.
Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand US dollars ($10,000) (or its equivalent in foreign currency) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.
In the event of any litigation (including arbitration) between You and EVAS, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute. Some jurisdictions may place limits on governing law, venue, and/or dispute resolution provisions, so some of the foregoing requirements in this section may not apply to You.
Venue. You agree that any Disputes shall be adjudicated in the state and federal courts of the State of Virginia, U.S.A. Venue for any Disputes shall be the court of proper jurisdiction in the County of Fairfax, Virginia. You agree to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agree not to bring any Disputes in any other court or adjudicative body. You hereby consent to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waive any right that You may have to assert that such forum is not convenient or that any such court lacks jurisdiction.
Equitable Relief. You agree that any breach of EVAS’s IP Rights will cause EVAS irreparable harm for which monetary damages will be inadequate and EVAS may, in addition to other remedies available by Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement.
Class Action Waiver. Any actions and lawsuits shall be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or in any other proceeding in which any party acts or proposes to act in a representative capacity.
No Waiver. In no event shall any failure or delay by EVAS to: (i) assert or exercise any right; (ii) demand fulfillment or performance of any obligation; or (iii) avail itself of any remedy under this TOS, in whole or in part, be deemed a waiver of any right or remedy under this TOS on such occasion or any other occasion. Except as otherwise expressly stated in this TOS or an agreement document duly executed by both EVAS and You, all rights and remedies stated in this TOS are cumulative and in addition to any other rights and remedies available under this TOS, any agreement document, at Law, or in equity.
Interpretation. This TOS, including the documents incorporated herein, constitutes the entire agreement between You and EVAS with respect to Services and supersedes all prior or contemporaneous understandings regarding such subject matter. If any part of this TOS is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect. The failure of EVAS to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or any other provision. The section titles in this TOS are for convenience only and have no legal or contractual effect. This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
Assignment. Either party may assign this TOS and any of its rights and obligations hereunder with the other party’s prior written consent (which such consent shall not be unreasonably withheld), except that EVAS may, without notice, assign the TOS and all of EVAS’s rights and obligations hereunder to: (i) an affiliate; or (ii) EVAS’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets, or the transfer or disposition of more than fifty percent (50%) of EVAS’s voting control or assets. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this TOS shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.
Severability. If any provision or portion of the Agreement is determined to be invalid, unlawful, illegal, void, or unenforceable, in whole or in part, then (i) that provision or portion shall be construed in such a manner as to render the provision or portion enforceable and, to the extent possible, to reflect the Parties’ original intent, and (ii) the remaining provisions and portions of the Agreement shall remain in full force and effect.
Survival. The following provisions of this TOS will survive termination or expiration of this TOS for the maximum term allowed by Law: (i) Your payment obligations; (ii) terms relating to intellectual property ownership, customer representations, confidentiality, storage of user information, publicity rights, non-disparagement, indemnification, warranty disclaimers, limitations of liability, dispute resolution and arbitration, and choice of law; and (iii) all provisions that are intended by their nature to survive termination of this agreement.
Future Changes. EVAS may change the terms of this TOS from time to time upon an electronic notice on the EVAS’s website, or Your Account, or on Your billing statement, or as otherwise required by Law. You agree to carefully read and review each such notice regarding any change of this TOS. Subject to applicable Law, the modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of this TOS and become binding on You on the later of the date they are posted on the EVAS’s website (www.evas.live), or as otherwise indicated in the notice to You. You agree that You are solely responsible for: (i) making sure that Your registered email address is current and functional: (ii) checking Your registered email regularly; (iii) checking the EVAS’s website and Your Account page regularly; and (iv) making sure that EVAS communications are not blocked or rendered undeliverable by You, Your computer, any software installed on Your computer, Your Internet service provider, or for any other reason. Continued use of Services will constitute Your acceptance of the modified terms. If the terms of this TOS are amended and You do not wish to accept the modified terms, You may terminate this TOS as provided for in the “Termination” section.
Acknowledgment. By clicking the “I Accept” button, You represent, warrant, agree and acknowledge that You have received, read, understand and agree to the terms and conditions of this TOS and is duly authorized to execute this document.