1. Acceptance of Terms
This Terms of Service ("TOS") agreement is between you (the "Client") and Evociant, Inc. ("Evociant"), a California Corporation, and may also be referred to as Evociant Business Solutions, Evociant Audience Management and Evociant Sales Systems, among other affiliated brands or trademarks. By accepting this TOS electronically or in writing, and/or by using Evociant's product(s) or service(s), Client acknowledges and agrees to be bound to Evociant's Terms and Conditions, as depicted in this TOS, and agrees that electronic acceptance of this TOS shall have the exact same force and effect as if Client had agreed to this TOS in writing. Evociant provides its products and services to Client subject to the following TOS, which may be updated from time to time, with or without notice. Client should periodically review the most current version of the TOS at www.evociant.com/terms. Failure to comply with the TOS may result in your license to use Evociant's products to be revoked, contract termination, and/or suspension of service. By using Evociant’s products or services Client agrees to (and hereby signs) the most current version of the TOS. Client’s acceptance of the TOS is binding upon all Evociant products and services including the purchase of additional products or services.
2. Description of Service
Evociant is a service provider that specializes in marketing services, e-commerce and sales solutions (including point-of-sales systems, online shopping cart and e-commerce systems), market research, website development, search engine optimization, web visitor monitoring and reporting, online and offline advertising, web hosting, app and software development, among others.
Client is responsible for all equipment and software necessary to access and use Evociant's digital or web-based products and services.
This TOS covers the following products and services including, but may not be limited to, Evociant's Website Development Services, E-commerce Website development, Web Hosting Services, App & Software Development, Aelevate Marketing Services, SecondSense and SalesInstinct Marketing Software.
3. Electronic Delivery Policy
Evociant provides online-related services and may communicate with Client electronically. When Client accepts this TOS Client consents to receive electronically any notices, agreements, disclosures, or other communications ("Notices") from Evociant.
Client agrees that Evociant may send electronic Notices in either of the following ways:
1) To the email address provided to Evociant or its subsidiary at the time of sale
2) To the new email address Client set up through Evociant or its subsidiary. Client agrees to check the designated email addresses regularly for Notices. Notices from Evociant are effective when sent by Evociant, regardless of whether the Notice is received and/or read by Client.
4. Unacceptable Practices
As Evociant strives to offer excellence in terms of quality and professionalism, there are certain guidelines and policies that must govern Evociant's efforts and relationship with Client. Practices that are in violation of these guidelines and policies are strictly forbidden and may result in the immediate termination of Evociant's services. Such decisions are at the sole discretion of Evociant. Unacceptable practices include, but are not limited to:
- Adult or pornographic material including, but not limited to, sexually explicit or suggestive material
- Nudity, including airbrushing (exceptions granted on a case-by-case basis at Evociant's discretion if for medical or artistic purposes)
- Hateful, threatening, violent, vulgar, invasive of another's privacy, racial, chauvinistic, defamatory, revenge or otherwise offensive content or language
- Unauthorized use or distribution of content that infringes on others' intellectual property
- Distribution of internet viruses, computer hacking and cracking guides or services
- Solicitation of funds other than for legal charitable organization (exceptions granted on a case-by-case basis at Evociant's discretion)
- Complaint websites
- MLM without a legitimate product or service, with a front product or service, or where the primary intent is to recruit new members rather than to sell products or services
- Pyramid schemes, Ponzi schemes and Reverse Funnel Systems
- Miracle cures, unlicensed pharmaceuticals, illegal drugs or drug paraphernalia
- Fake documents
- Reselling of email accounts and bulk emailing tools
- Any illegal activities that are not permitted under US Federal Law and/or California State Law
- Other activities, whether lawful or unlawful, that Evociant deems to be of poor taste or that reflect adversely on Evociant or Evociant's Clients
Evociant reserves the right to refuse to provide its products or services at its sole discretion at anytime for any reason.
Client agrees to conduct business in a legal and professional manner. Client understands that all information, data, text, software, music, sound, photographs, video, messages and other materials ("Content") on Client's website is the sole responsibility of the Client. Client is fully responsible for all website content and agrees to hold Evociant harmless in the event of third parties' legal issues brought against Client for Client's business practices. Evociant retains the right to terminate any accounts that are in violation with the letter or spirit of this TOS. Evociant may also discontinue providing services, or any part thereof, at any time, with or without notice, at its sole discretion.
Client may have access to editing tools for updating Client's website. Client may edit, add or delete content to the website at anytime. With this understanding Evociant may not be able to pre-screen content. Client agrees that Client bears all risks associated with the use of all content, whether edited or written by Evociant or not, including any reliance upon accuracy, usefulness or completeness.
5. Intellectual Property Policy
Evociant will not use copyrighted or trademarked materials without the express written consent of the copyright or trademark owner. It is Client's responsibility to ensure that any content submitted to Evociant is original content and free from third-party copyright or trademark protection, or to obtain permission to use from the copyright or trademark owner. Client assumes full liability for any copyright or trademark infringement of Client's website on any third-party copyright or trademark, including, but not limited to, any infringement due to website content, website design or the look and feel of Client's website. Client's content sent to Evociant will remain the intellectual property of Client.
For copyright purposes, all website designs (including but not limited to mock-ups and website previews), marketing materials and other graphic designs, programming works, and other work created by Evociant for Client are the sole intellectual property of Evociant until Client has paid in full all related fees. Once all fees are paid in full, ownership of Evociant's work is transferred to Client, and Evociant will resign all ownership of intellectual property to Client.
6. International Use
Recognizing the global nature of the internet, Client agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, Client agrees to comply with:
- All laws and regulations regarding the transmission of technical data exported from the United States, or the country in which Client resides and/or transacts business.
- All laws and regulations regarding the collection and processing of personal data, including those relating to the trans-border transfer of personal data.
7. Products and Services Description
Evociant may provide to Client the following non-exhaustive list of products and services, as described below. Prices may change at Evociant's discretion. Information presented on Evociant’s website and/or its subsidiaries as well as any other related marketing materials are non contractual. Any contractual responsibility to Client will be defined by the description provided in this TOS. Quotes and proposals for individual contracts are valid for up to 30 days from the date of issuance, and may be revised past the 30 days period.
a) SecondSense(TM) Content Management System
i - Product Description
SecondSense is a Content Management System (CMS) developed by Evociant capable of updating Client's website from an easy-to-use web interface. SecondSense can be installed on any HTML, HTML5, or Flash-based website upon Client's request. A licensing fee will be required from Client at the time of the order. An extra fee may be charged by Evociant to convert Client's website into an SecondSense compatible website, if needed. There are no conversion fees if Client orders SecondSense for an upcoming website that is to be developed by Evociant.
ii - Process
SecondSense is installed on Client's website and runs in parallel to Client's website on Client's server. SecondSense requires PHP version 5 (or later) to be installed on Client's server in order to function properly. Evociant recommends Linux-based web hosting for optimal web performances. Because SecondSense uses its own built-in database system, it does not need or require any other database system installation or licensing.
Client may access SecondSense from a web browser either by clicking a link (such as "Login", or "Management") on Client's website, or using a pre-defined URL (such as "www.mywebsite.com/management"). Client will be required to login using their account's username and password, as provided by Evociant, in order to access the SecondSense administration panel. Once successfully logged in, SecondSense will provide Client with several options including a "System Status" review (detailing current website activity and server status), "Content Management" (where Client can edit pages of Client's website using an easy-to-use, visual-based editor), and other options offered by various pluggins that have been installed on Client's SecondSense system.
iii - Licensing
Client will be required to pay a non-refundable licensing fee for the use of SecondSense at the time of order. Licensing rights may or may not be limited by time, depending upon the licensing agreement between Evociant and Client. Client understands and agrees not to attempt to modify, duplicate or resell the SecondSense software without written permission from Evociant.
iv - Limitation of Liability
Client assumes full responsibility for any content made public through Client's website with the use of SecondSense. Client understands and agrees that Evociant denies all responsibility from the misuse or publishing of any content and information through Client's website with the use of SecondSense.
b) Aelevate(TM) Marketing Services
i - Service Description
Aelevate is a web marketing solution designed to help drive targeted customers to Client's website, increase visitor traffic to Client's website, improve Client's website visibility in search engines, and help Client generate and increase sales using online advertising methods, web promotion, SEO, and a suite of online tools (the "Aelevate Tools Suite"). Client can subscribe to the Aelevate service, which is offered as a monthly subscription service, by selecting one of the packages (the "Aelevate package") offered by Evociant on the Aelevate website, which may include different features, coverage, advertising budget and monthly cost. Client may request to switch their subscription to a different package, and can choose to cancel their recurring subscription to the Aelevate service at anytime.
Althought Aelevate(TM) is a commercial trademark owned by Evociant, when communicating with Evociant's employees that are part of the Aelevate team and support staff, Client may reffer to Evociant simply as "Aelevate", where Aelevate and Evociant can be used interchangeably.
ii - Process
After selecting an Aelevate package and signing up to the Aelevate service, Client will be assigned to an Agent (the "Agent") appointed by Evociant's Aelevate team who will be in charge of supervising Client's account, campaign and other marketing efforts. Client will be offered to review their target audience and marketing goals with the Agent. The Agent will then convey information to the rest of the Aelevate team. Client understands and agrees that information provided to Agent may be shared with other Evociant employees including, but not limited to, Aelevate team members, graphic designers, marketing consultants, and support staff. Agent will then show previews of Client's ads and banner designs created by Aelevate's graphic design team using content extracted from Client's website, content provided by Client, and/or stock photos and royalty-free imagery provided by Evociant's partners. Client may provide feedback, suggestions, and request design changes (including text & graphic updates) to the Agent, who will relay Client's feedback to the graphic design team.
Evociant will proceed to publish Client's ads on Evociant's partner networks (see Chapter 7b, Partner Networks). Keywords that may be used to trigger Client's ads on partner networks can be determined either by Client within their account configuration panel, by Agent's manual input, by Aelevate's automated ad delivery and keywords suggestion system, or a combination thereof. Performance monitoring, including real-time visitor & conversion tracking, can be used to identify the best performing keywords, ads, publishing sites, geolocations, and time of publishing, among other factors which can be used by Agent to refine Client's ads and campaign specifics over time.
Agent will provide periodic reports to Client to detail progress, review statistics and the results generated by Client's ad campaigns and other marketing efforts, including visitors gained, tracked conversions, and/or effects on sales, among others. Client understands that their Aelevate package can affect their advertising budget, the frequency of Agent's reports, as well as how often new ad campaigns and banner designs are created.
In addition to Agent's reports, Evociant provides Client with live statistics to help monitor the effects of Aelevate on Client's website in real-time, which can be accessed at anytime from Client's account panel on the Aelevate website.
As Agent strives to keep improving Client's results, Agent can unlock tools (see Chapter 7b, Aelevate Tools Suite) that can help further improve Client's conversions and sales using various marketing techniques. Agent will also supervise the creation of additional ads & banners over time, and provide Client with advice and suggestions to help reach Client's marketing goals.
Client may provide their website's FTP information to Evociant, which will be used by Evociant's in-house SEO team to undergo a review process of Client's website and source code. This review may allow for optimization of parts of the website's source code in order to achieve better visibility in search engine results by a process known as Search Engine Optimization ("SEO"). SEO is included with most Aelevate packages, but any effects on search engines, whether expressed or implied, are not guaranteed. Evociant pledges to only use safe, "white hat" SEO techniques and will never use "black hat", sanctioned techniques that may provide short term results but risk future penalty from search engines. Moreover, Client understands that Evociant reserves the right to not publicly disclose the specifics of the techniques and methods used due to the sensitive nature of these techniques, since it is common practice in the industry not to reveal the exact processes involved and as each SEO firm develop their own methodology.
iii - Aelevate Tools Suite
The Aelevate Tools Suite is a collection of web-based tools that comprises a range of marketing software and business optimization tools. As the internet is constantly evolving, Client understands that Evociant may update the list of tools from time to time. This may result in tools being added, updated, or removed in order for Evociant to keep up with the latest trends, web standards, SEO and marketing techniques.
Client understands that their privilege of access and use of some or all tools can be revoked by Evociant at anytime, and that not all tools can be used in all situations. Per example, if Client is a local business that offers intangible services, Client will have different marketing needs than an online store that sells products at predetermined cost. Tools are unlocked by the Agent, and will be activated over time in order to keep improving Client's results, conversions and sales. The degree and speed as well as which tool gets unlocked will be determined by the Agent, Client's Aelevate package, and assessed needs. Client understands that of these tools may have drastic effects on Client's website and rankings in search engines, and should be used with care. By using any of the tools provided, Client understands and agrees that Evociant cannot be led responsible for any effect resulting from action or misuse undertaken from these tools, and that the use of these tools are at Client's own risks.
At the time of writing the list of the main tools provided as part of the Aelevate Tools Suite (with their primary function noted under parentheses) includes: Aelevate Insight (Web visitor tracking), Aelevate Analyst (Automated diagnostics & suggestions), Aelevate Connect (Email marketing), Aelevate Ranking (Tracking of search engine rankings), Aelevate Social (Social media marketing), Aelevate LinkBuilder (Inbound and outbound link building), Aelevate CRM (Customer relationship management), Aelevate Showcase (Sponsored product listing), Aelevate SmartIndex (URL submitter), Aelevate Defender (Online security), Aelevate SalesMaker (Sales incentives), Aelevate LeadMaker (Lead generation), Aelevate Promote (Online coupons), Aelevate Reputation (Online reputation management), Aelevate Automator (Task automation), and Aelevate Engage (Visitor retargeting).
The above list of tools is non-exhaustive and is subject to change at anytime. In addition to the main tools, Agent can provide Client with other digital and web-based that can assist with Client's various needs. This may include tools to edit and improve product images, HTML content editing tools, among others.
iv - Subscription, Cancellation, and Refunds
Evociant provides the Aelevate solution as a monthly-recurring, subscription service without long-term contract, with month-to-month billing occuring every 30 days from the date of subscription. Client can subscribe to the Aelevate service by filing their application on the Aelevate website.
Client can request to have their Aelevate monthly subscription canceled at anytime from within their account panel on the Aelevate website, or by emailing email@example.com with a request for cancellation and their Account ID.
Aelevate's subscription fees are non-refundable. Any unused advertising credits that isn't transferred to an active Aelevate account will expire within 30 days of the Aelevate ad campaign's activation date or latest renewal date.
v - Partner Networks
Aelevate allows Client to advertise Client's website, products, and/or services on advertising and content publishing networks ("Partner Networks") not owned by Evociant. Aelevate has partnered with the following non-exhaustive list of Partner Networks: Google's Search & Display Network, Bing Ads Network, Facebook Advertising Network, ZEDO Publishing, Clicksor, and 7Search Network. Client understands that the list of affiliated Partner Networks can and will be updated from time to time, which may include support to additional networks, and/or cancellation of support to previously supported networks. Aelevate provides Client with a monthly advertising budget, included within Client's subscription cost, and varying depending on the Aelevate package chosen by Client, which Client can manage and direct to the Partner Network(s) of their choice. Client may also be offered the option to purchase additional coverage to increase Client's monthly budget, indepentely of Client's Aelevate package, to increase Client's ad spendings on the Partner Network(s) chosen by Client to advertise their website, products and/or services. Client understands and agrees that any additional budget purchased to advertise on Partner Network(s) are separate transactions that are unrelated to Aelevate's subscription fees (as part of the Aelevate package), are final and non-refundable.
Client understands that Evociant will relay campaign information to Partner Networks, including keywords, user geo-targeting, among others, but cannot enforce Partner Networks to use the specifics provided.
vi - Limitation of Liability
Client agrees to leave Evociant from any legal consequences that may ensue from the use of Aelevate or any aspect of its services and components, including personalized marketing services, consultation services, or tools provided. While Evociant will do every effort to ensure the effectiveness and satisfaction of Client's use of Aelevate, Client understands and agrees that any use of the Aelevate service and its features are at Client's own risks.
c) SalesInstinct(TM) E-commerce Solution
i - Product Description
SalesInstinct is a web-based marketing software and interactive sales technology developed by Evociant available in beta to select partners and businesses. SalesInstinct is designed to help retailers understand how web visitors and potential customers navigate and interact with Client's website, and dynamically adapt Client's website to influence potential customers' behavior toward making purchase while making their shopping experience more pleasant.
ii - Process
SalesInstinct uses a tracking script integrated into Client's website's pages that detects and monitors web visitor's behavior. An artificial intelligence developed by Evociant based on several consumer studies and built into SalesInstinct analyzes this behavior and determine web visitors' interests, tastes, and personal background. Based on that information, SalesInstinct dynamically generates custom content ("Dynamically Generated Content") and adapt Client's website's pages to better suit the potential buyer, get their attention, and influence them toward making a purchase through several pre-built marketing incentive templates (the "Templates") designed to bring the potential buyer to complete their purchase during their visit.
iii - Fees
SalesInstinct is currently available only to select Clients and there are no fees related to the use of the software at this time. However, Evociant plans on releasing a fee schedule in the future once final version will be released to the mass market.
d) Website Development Services
i - Service Description
Evociant provides Client with a custom designed website ("Client's website", the "website", the "site"), designed and developed from scratch to best meet Client's specific needs and requirements. Evociant offers custom HTML, HTML5 and E-commerce website development.
ii - Process
With input and feedback from Client, Evociant's web design team will create a website mock-up (the "mock-up"). At this stage the mock-up is not and is not intended to be a functional website: It is a static, non-functional preview of the site designed to allow Client to preview the site before it is actually built.
At this point, Client will be invited to share comments and suggestions on any changes or modifications Evociant should bring to the mock-up's design. This will give Client the ability to have the website designed as per Client's needs, specifications and wishes.
Once Client is satisfied with the design, and Evociant gets permission to move forward, Evociant's web development team will then proceed to turn the mock-up into a fully working and functional website. Evociant will build any links, forms, animation, interactivity, and other coding that is required to make Client's website functional.
The entire development process is done on Evociant's web servers. Client will be given access to a private development directory on Evociant's web servers, where Client will be able to see the work and progress on Client's website.
Once the website will be complete and fully functional, Client will be invited to review the working version of the site, and Evociant's team will once again be listening to any comments or suggestions regarding any possible changes, modifications or improvements to Client's website.
Once Client is satisfied with the website, Evociant will, with Client's approval, proceed to the upload of Client's website to Client's server, and the website will then become publicly accessible on the Internet.
Evociant will not be held liable for accuracy of information, typos, or spelling errors in any of the content submitted by the Client and published on the website.
Evociant does not and cannot guarantee a time frame for completion of any website development projects. Client's website cannot be completed without submission of complete content, design approvals and participation from the Client. If Client continues submitting additional content or request for modifications and changes to the site throughout the development process, the completion time frame will be increased. If Client's website requires custom programming, functionality, animated content, e-commerce or the use of a database system, the overall development time will be extended accordingly. Client can request for a non-contractual ETA estimate on Client's project at anytime.
Upon request, Client will be provided with an optional coming soon website shortly after the initial sale, at no extra cost. The coming soon website is a temporary one page website provided by Evociant while the custom website is being built. The coming soon website may feature basic information such as Client's contact information, logo, and/or a "Coming Soon" message, inviting web visitors to come back once the custom website is completed.
iii - Client Review and Approval
Client is responsible for reviewing the content and testing the functionality of the website upon Evociant's request for approval, and/or notification that the website or latest changes have been completed. This includes, but is not limited to, functionality of all website pages, database, e-commerce store, payment functions, galleries, forums, etc. Upon Client's approval of the website to go live Client agrees services have been rendered and functionality of the website has been tested and approved by Client.
iv - Website Change Requests Before and After Website Goes Live
Evociant agrees to build a website and/or database(s) to specifications quoted as per the original sale and original invoice. Any additions or changes requested outside of the scope of the original sale, either prior to the custom website going live, or after the site has gone live, will be billed separately. Client understands and agrees that Evociant is not obligated to complete Client's requests or changes outside of the scope of work on the original invoice. If Evociant does not agree to Client's requests or changes, Client is still obligated to pay all fees incurred and due.
Client understands and agrees that Evociant reserves the right to refuse any modification or alteration of Evociant's work or designs should Evociant believe the changes to be unsuitable, offensive, does not meet the quality standards that Evociant aim to provide, or would affect Evociant's reputation and/or its Clients negatively (see Chapter 4 - Unacceptable Practices).
v - Custom Database and Programming
Client understands and agrees that Evociant does not and cannot guarantee a time frame for completion of any custom database and programming work. Evociant agrees to complete the database design or programming according to the specifications outlined in Client's invoice and/or written summary of the order.
Client may be responsible for testing the functionality of the custom database or program upon Evociant's request for approval and notification that the database or program has been completed. Upon Client's approval of the database or program to be uploaded to Client's server, Client agrees services have been rendered and functionality of website has been tested and approved by Client.
Evociant will instruct Client on how to use the custom database or program, as well as how to input data into the aforementioned database or program. Data entry is Client's sole responsibility. If Client requests Evociant to enter data into a database on their behalf, the Client will be charged, and agrees to pay, for such data entry as an extra charge.
vi - E-commerce/Stores
Client will be provided with instructions on how to input products into the store. Client is responsible for testing the functionality of the e-commerce store upon Evociant's request for approval and notification that the website has been completed. This includes but is not limited to testing online payment functionality. Evociant is not responsible for integration or functionality of third-party services that are not affiliated with Evociant. Upon Client's approval for the website to go live, Client agrees services have been rendered and functionality of the website has been tested and approved by Client.
vii - Enhancements to Website
Client may purchase enhancements to the website at the time of initial sale or anytime thereafter. Enhancements to the website may include, but are not limited to, custom programming work, database development, Flash or HTML5 animation, e-commerce and shopping cart systems, logos, galleries, mouseovers, etc. Client's requests for enhancements to the original sale will be due and billed separately and at the time of request.
Some enhancements may require that a specifications summary with a detailed description of the functionality be written. Enhancements or additional services purchased after the initial sale are separate purchases and will be billed in addition to and separately from the original website invoice. If Client cancels an enhancement the original sale will not affected.
viii - Payment Schedule & Cancellation Fee
Evociant will provide a quote to Client outlining the different features, price, as well as an approximate, non-contractual time frame/estimate of completion for Client's project.
Client is not required to pay the full amount of the project upfront for Evociant to begin work on Client's website. However, Evociant does require a partial security deposit to secure the project and before any work is started on Client's project.
Client understands and agrees that if Client wishes to cancel the project for any reason, Evociant reserves the right to keep the security deposit as a cancellation fee, regardless of Evociant's progress on the project.
Once the project is completed and Client's website is ready to go live, Client will be required to pay for any remaining balance. Evociant will begin transfer of the website and all related files to Client's server after all invoices have been paid in full.
ix - Domain Names
Evociant can secure the following domain name extensions for Client: .COM, .NET, .ORG and .US, pending approval and availability of the name from the respective domain name registrar. Evociant cannot guarantee the availability of domain names and has no liability for a domain name no longer available after the initial sale. If a domain name is not available for purchase Evociant will assist Client in selecting and purchasing an alternate domain name. Domain names already owned by Client remain the property of Client and yearly renewal of the domain name is Client's responsibility, along with the renewal of any domain names transferred to or owned by Client. Domain names purchased by Evociant are the sole property of Evociant until Client has paid all related fees.
8. Termination/Cancellation of Service
Evociant may, at its sole discretion, terminate its service and remove and discard any content, for any reason, including and without limitation, for lack of use, or if Evociant believes Client has violated the TOS. Evociant may also discontinue providing services, or any part thereof, with or without notice. Client agrees that any termination of access to Evociant's services under any provision of this TOS may be effected without prior notice and that Evociant may deactivate or delete Client's account and all related files and information. Client agrees that Evociant shall not be liable to Client or any affiliated third-party for a termination of service. Evociant also reserves the right to discontinue the development of Client's project at any time, at Evociant's sole discretion, with an appropriate refund to the Client. Under no circumstances is the refunded amount to exceed the amount collected by Evociant.
Factors that may result in Termination of Service may include, among others, attempt to use Evociant's products or services against Evociant's list of Unacceptable Practices, purposeful attempt of copyright violation, purposeful lies or manipulation of information with intent of causing damage to Evociant, Evociant's Clients, or Evociant's reputation, inappropriate behavior and/or offensive or threatening language to Evociant, Evociant's employees, contractors and/or third parties, physical damage, whether accidental or otherwise, to Evociant's property or assets.
Client agrees to pay all services fees owed from the time of sale until the effective cancellation date. Client must notify Evociant to terminate the account in order to avoid any further monthly charges. It is Client's sole responsibility to secure confirmation from Evociant that the request for termination has been received and no further fees will be billed.
Client understands and agrees that the non-use of service ordered by Client does not constitute termination of the account.
9. Disclaimer of Warranties
EVOCIANT'S PRODUCTS AND SERVICES ARE PROVIDED "AS IS". EVOCIANT DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. EVOCIANT DISCLAIMS ANY WARRANTIES REGARDING EVOCIANT'S SERVICES INCLUDING THAT THEY WILL MEET CLIENT'S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. EVOCIANT DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF EVOCIANT'S SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. EVOCIANT DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CLIENT'S PRODUCTS, SERVICES, OR WEBSITE. EVOCIANT DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH EVOCIANT'S SERVICES, OR LINKS PROVIDED BY EVOCIANT'S SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY EVOCIANT. CLIENT UNDERSTANDS AND AGREES THAT ANY INFORMATION OR MATERIAL OBTAINED THROUGH THE USE OF EVOCIANT'S SERVICES ARE DONE AT CLIENT'S OWN RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY LIABILITY THAT MAY RESULT FROM THE USE OF SUCH MATERIAL.
10. Limitation of Liability
CLIENT HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND EVOCIANT AGAINST ANY AND ALL CLAIMS (INCLUDING ATTORNEY'S FEES AND LEGAL EXPENSES RELATED TO SUCH DEFENSE). CLIENT'S OBLIGATION TO INDEMNIFY AND DEFEND EVOCIANT WILL SURVIVE THE CANCELLATION, EXPIRATION OR TERMINATION OF THIS AGREEMENT BY EITHER PARTY FOR ANY REASON.
Without limiting the foregoing, under no circumstances shall Evociant be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet connectivity failures, computer equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non performance of third parties, or loss of or fluctuations in heat, light or air conditioning.
11. Contact Evociant
Client may contact Evociant and request for assistance at anytime on Evociant's website. Client may also email Evociant at the following email address: firstname.lastname@example.org or by calling toll free (888) 407-0847.
Evociant may investigate any reported violations of this agreement, its policies or any other complaints and take any action it deems appropriate to protect its assets, Clients, and third parties. Any disputes between the parties relating to the subject of this agreement shall be submitted exclusively to the jurisdiction of the state or federal courts located in the State of California, County of Santa Clara, where Evociant is incorporated, and the parties expressly consent to personal jurisdiction and venue therein and waive any objection based on "forum non conveniens" or otherwise. Should there be a breach of this provision, the non-breaching party shall be entitled to an award of attorney fees.
13. Electronic Signatures
By selecting and submitting "accept" or "continue" on the electronic copy of this TOS, by purchasing or subscribing to an Evociant product or service, by making a payment to Evociant, or by submitting information or documents to Evociant so that Evociant may perform services for the Client, shall have the exact same force and effect as if Client had expressly agreed to and signed the TOS in writing.
14. General Information
This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of the TOS). Any modifications to this agreement must be in writing and signed by an authorized officer of Evociant. All representations not in writing are null and void. Written agreements may include, but are not limited to, emails and electronic acceptance of this Terms of Service. Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of Evociant's services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.
California Corporation #3972653
Federal EIN #38-4023100
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