Acceptance of Terms

Welcome to the Evoqu website. We appreciate the fact that you have elected to access our website and use the services provided on the website and through our related mobile applications (collectively, the “Service”). As is the case with almost all websites and mobile applications, your use of this Service is subject to certain legal terms that will protect both you and us. By using our Service in any manner, including but not limited to visiting or browsing our website, you agree to be bound by these Terms of Service (“Terms”) and our Privacy Policy

Use of the Service is subject to additional terms and conditions defined by our Content (as defined below) providers (“Licensors”), which you accept by your use of the Service. Evoqu reserves the right to modify or revise these Terms and/or Privacy Policy or its other policies at any time at its sole discretion. Any such modifications to these Terms and Privacy Policy shall be effective within forty-eight (48) hours of being posted on the Service unless otherwise stated by Evoqu in writing. You are bound by such modifications or revisions, and should therefore visit this page frequently to review the Terms and Privacy Policy. Your continued use of the Service following Evoqu’s posting of any changes or modifications to these Terms and/or Privacy Policy will constitute your acceptance of such changes or modifications. In the event that you do not agree to any changes or modifications of these Terms and/or Privacy Policy, you should not continue to use the Service.

SERVICE ACCESS

As a condition of use, you promise not to use the Service for any purpose that is prohibited by these Terms. You are responsible for all of your activity in connection with the Service. The term “Content” includes, without limitation, any advertisements, advice, suggestions, videos, audio clips, written forum comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible by us or our Licensors on or through the Service.

By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, that:

  • infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity;
  • is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane;
  • contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Company or any third party; or

Additionally, you shall not: (i) take any action that imposes or may impose (as determined by Evoqu in our sole discretion) an unreasonable or disproportionately large load on Evoqu’s (or our Licensors’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures we may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) run Maillist, Listserv, or any form of auto-responder or “spam” on the Service; or (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Sites.

You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service, or (iii) copy, rent, lease, distribute, or otherwise transfer any or all of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.

Additionally, you shall not: (i) use any Evoqu, Licensor, subsidiary, affiliate, co-brand partner, or other partner logo or other proprietary graphic or trademark as part of a link to the Service without first obtaining the express written consent of Evoqu, the subsidiary, affiliate, co-brand partner or other partner or Licensor (as applicable).

Evoqu reserves the right to remove any Content from the Service at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms), or for no reason at all.

CONTENT

Evoqu provides a number of different services to assist you in comparison-shopping for products and services on the Service. Evoqu may be paid by merchants or other third parties for listing products and services on the Service and for promotions such as featured merchants, featured products and showcases.

Evoqu does not sell, resell or license any of the products listed on the Service, nor is Evoqu acting as an agent of sale, and Evoqu disclaims any responsibility for, or liability related to, such products and services (see Disclaimer of Warranties and Limitation of Liability, below). Any questions, complaints or claims related to any product should be directed to the appropriate merchant or seller.

Evoqu does not warrant that product descriptions, pricing, editorial commentary or any other content of the Service, regardless of its source, is accurate, complete, reliable, current or error-free. Service content is provided for informational purposes only and does not constitute an endorsement by Evoqu of any product, merchant, seller, service, or any reviews or comments thereof regardless of the source of such review or comment. Evoqu assumes no liability for inaccuracy or incompleteness in its search results, editorial content, user ratings (e.g. user merchant rating, or user product rating) or other content on the Service.

You agree that the Service contains Content specifically provided by Company or its Licensors and that such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by all copyright notices, information, and restrictions contained in any such Content. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any Content or third party submissions or other proprietary rights not owned by you, (i) without the consent of the respective owners or other valid right, and (ii) in any way that violates any third party right.

OTHER BUSINESSES AND LINKS TO OTHER APPLICATIONS

Evoqu may provide links to the services of third-party merchants, affiliated companies, co-brand partners and other parties. These links are provided solely as a convenience to you, and do not constitute an endorsement by Evoqu of the content of such third-party sites and Services nor of the business practices of such other businesses, entities or individuals. Evoqu is not responsible for examining or evaluating, and does not warrant or claim responsibility in any way, the products, services, offerings or business practices of any of these businesses, entities or individuals or the content of their web sites and services. You should carefully review their privacy statements and other conditions of use.

Evoqu has no control over the business practices of any third-party merchant or seller, nor does it control in any way the quality, safety or legality of any item listed on the Service or any business transaction that occurs as a result of products listed on the Service.

IN THE EVENT OF A DISPUTE BETWEEN YOU AND A MERCHANT LISTED ON THE SERVICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE EVOQU, ITS LICENSORS, SUBSIDIARIES, AFFILIATES, CO-BRAND PARTNERS OR OTHER THIRD PARTIES UNDER CONTRACT WITH EVOQU, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND LEGAL REPRESENTATIVES FROM AND AGAINST CLAIMS AND DAMAGES OF ANY KIND, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH A DISPUTE.

If you are a California resident, by using the Service, you explicitly waive the rights granted to you under California Civil Code 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

Evoqu has no special relationship with or fiduciary duty to you. You acknowledge that Evoqu has no control over, and no duty to take any action regarding: which users gains access to the Service; what Content you access via the Service; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. The Service may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Evoqu makes no representations concerning any content contained in or accessed through the Service, and Evoqu will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Service.

THE SERVICE IS PROVIDED BY EVOQU ON AN “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EVOQU MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE OR THE INFORMATION, CONTENT, GRAPHICS, LINKS, MATERIALS, PRODUCTS, OR SERVICES INCLUDED ON THE SERVICE, OR THEIR ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS. IN ADDITION, THIRD PARTIES PROVIDE SOME OF THE MATERIAL ON THE SERVICE; TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVOQU SHALL NOT BE RESPONSIBLE FOR ANY SUCH THIRD PARTY MATERIAL. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE OR ANY TRANSACTION RESULTING THEREOF IS SOLELY AT YOUR OWN RISK. EVOQU DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SERVICE. OPERATION OF THE SERVICE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF EVOQU’S CONTROL.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EVOQU DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY OR THIRD PARTY RIGHTS REGARDING THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EVOQU MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES REVIEWED ON THE SERVICE OR BOUGHT AND/OR SOLD USING THE SERVICE, OR THAT SELLERS OR BUYERS WILL PERFORM AS PROMISED BY THEM, OR THAT THE SERVICE, ITS SERVERS, OR E-MAIL SENT FROM EVOQU ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVOQU WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RELATED TO LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES.

CERTAIN STATE LAWS IN THE UNITED STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. IF YOU ARE DISSATISFIED WITH ANY OF THE CONTENTS OF THE SERVICE, OR DO NOT AGREE WITH THESE TERMS AND CONDITIONS, WITH EVOQU’S PRIVACY POLICY OR ANY OTHER POLICIES OF THE SERVICE, YOUR SOLE REMEDY IS TO DISCONTINUE YOUR USE OF THE SERVICE.

INDEMNITY

To the maximum extent permitted by applicable law, you agree to defend, indemnify and hold Evoqu, its subsidiaries, affiliates, co-brand partners, and other parties with which Evoqu is under contract, and their respective officers, directors, employees and agents free and harmless from and against any claims, actions and demands, including, without limitation, any legal and accounting fees resulting from your use of the Service and/or your breach of these Terms and/or the Privacy Policy, and/or resulting from any and all content you submit to Evoqu and/or the Service. Evoqu shall provide notice to you of any such claim, suit or proceeding.

GOVERNING LAW

These Terms and the Privacy Statement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts or choice of law. In addition, the service of the United Nations Convention on Contracts for the International Sale of Goods, including any amendments thereto, is expressly excluded hereby. Except for disputes arising from an alleged violation of intellectual property rights or breach of confidentiality, for which the injured party may suffer irreparable harm and may seek a restraining order, preliminary injunctive relief, an injunction, specific performance or other equitable relief and/or legal remedies, and actions to enforce the decisions of the arbitrators, for which action may be taken in any court of competent jurisdiction, all disputes arising out of or related to this Agreement, including the scope, the construction or application of this Agreement, shall be resolved by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in force. The arbitration hearings and all meetings pursuant to this section shall be held in Boston, Massachusetts, USA, and shall be conducted in English. If the parties cannot agree upon a single arbitrator within fifteen (15) days after demand by either of them, each party shall select one arbitrator knowledgeable about Internet commerce in Massachusetts and the USA generally, and notify the other of its selection, and such two arbitrators shall select a third from a list of arbitrators (with knowledge of the Internet industry) qualified by the American Arbitration Association in Massachusetts. If this procedure for selecting arbitrators fails, then a neutral arbitrator based in Massachusetts with knowledge of Internet commerce in Massachusetts and the USA generally shall be selected by the American Arbitration Association to resolve the dispute. The arbitrator(s) shall conduct a hearing within thirty (30) days after their selection. A majority of the arbitrators (if there is more than one pursuant to this clause) shall determine the decision/award, which shall be rendered within five (5) days after the completion of the hearing. The decision of the arbitrator(s) shall be final and binding upon the parties both as to law and to fact, and shall not be appealable to any court in any jurisdiction. The parties shall share the expenses of the arbitrators equally. Nothing in any indemnification provision hereunder shall be construed as having any bearing on the award of attorneys’ fees or arbitrators’ fees under this section.

IP OWNERSHIP AND COPYRIGHT INFRINGEMENT

Evoqu has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Company’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.

It is Evoqu’s policy to (1) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.

A.Procedure for Reporting Copyright Infringements:

If you believe that Content residing on or accessible through the Evoqu website or Service infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
  2. Identification of works or materials being infringed;
  3. Identification of the Content that is claimed to be infringing including information regarding the location of the Content that the copyright owner seeks to have removed, with sufficient detail so that Evoqu is capable of finding and verifying its existence;
  4. Contact information about the notifier including address, telephone number and, if available, e-mail address;
  5. A statement that the notifier has a good faith belief that the Content is not authorized by the copyright owner, its agent, or the law; and
  6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.

B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:

It is Evoqu’s policy:

  1. to remove or disable access to the infringing Content;
  2. to notify the Content provider, member or user that it has removed or disabled access to the Content; and
  3. that repeat offenders will have the infringing Content removed from the system and that Company will terminate such content provider’s, member’s or user’s access to the Service.

C. Procedure to Supply a Counter-Notice to the Designated Agent:

If the Content provider, member or user believes that the Content that was removed or to which access was disabled is either not infringing, or the Content provider, member or user believes that it has the right to post and use such Content from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:

  1. A physical or electronic signature of the Content provider, member or user;
  2. Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
  3. A statement that the Content provider, member or user has a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
  4. Content provider’s, member’s or user’s name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the Content provider’s, member’s or user’s address is located, or if the Content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Evoqu is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Designated Agent, Evoqu may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Evoqu’s discretion.

Please contact Evoqu’s Designated Agent to Receive Notification of Claimed Infringement at the following address:

Designated Agent to Receive Notification of Claimed Infringement: contracts@evoqu.com

GENERAL

If any provision of these Terms and/or Privacy Policy is held to be invalid, void or unenforceable for any reason, such provision shall be struck and the remaining provisions shall remain enforceable. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that these Terms and the Privacy Policy and all agreements and notices incorporated herein may be automatically assigned by Evoqu, in our sole discretion, to a third party. You may not assign your obligations to any other entity.

Effective Date: July 1, 2011