CITY HAWK BASIC TERMS OF SERVICE AGREEMENT
1. Your Acceptance of Terms
1.1 The following Terms of Service (“TOS”) are between you and Evolution Ventures, LLC (“Evolution”) and constitute a legal agreement that governs your use of the City Hawk product, software, services and websites (together, the “Service”). You must agree to these TOS before you can use the Service. You can agree to these TOS by: a) actually using the Service, or b) clicking a box that indicates you agree to the Service, where such a box is made available to you. If you do not agree to any of the following terms, please do not use the Service. You should print or otherwise save a copy of these TOS for your records.
1.2 Legal Authority. To use and/or register for the Service you must be: a) of legal age to form a binding contract with Evolution, and b) cannot be a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction, including the country in which you reside or from where you use the Service. By accepting these TOS you represent that you understand and agree to the foregoing.
1.3 Updates. Evolution may update or change these TOS from time to time and recommends that you review the TOS on a regular basis. You can review the most current version of the TOS at any time at www.city-hawk.com/agenttermsofservice. If Evolution makes a change to the TOS, it will post the revised TOS on our website at the link noted above. You understand and agree that your continued use of the Service after the TOS has changed constitutes your acceptance of the TOS as revised. Without limiting the foregoing, if Evolution makes a change to the TOS that materially impacts your use of the Service, Evolution may post notice of any such change on our website and/or email you notice of any such change to your City Hawk account.
2. The Service
2.1 General Description of the Service. In general, the Service allows you, your Broker, clients, and prospective clients (collectively, “Users”) to search and explore real estate-related information such as building information, available residential units and other information within a three-dimensional rendered environment of a geographic area. The Service allows you to access some IDX-provided and other unit information. The Service provides information only on a subset of buildings and available units within a particular geographic area.
2.2 System Requirements. Use of the Service may require the use of resource-intensive three dimensional rendering systems, certain software and Internet access for which separate service provider fees may apply. Not all elements of the Service may run on all browsers. Your use of the Service may be affected by certain combinations of hardware, software and/or Internet access. High speed Internet access is strongly recommended.
2.3 Changing the Service. Evolution reserves the right to modify or stop the Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to you. Without limiting the foregoing, Evolution may post on our website and/or send email to your City Hawk account, notice of such changes to the Service. It is your responsibility to review our website or check your email address for any such notices. You agree that Evolution shall not be liable to you or any third party for any modification or cessation of the Service.
2.4 Limitations on Use –All information, content and materials contained on our Service is the property of Evolution except for the MIAMI Association of Realtors MLS data and both are protected under U.S. and International Copyright Law. None of the information, content or material from the Service may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way without our express written permission. The use of any information, content or materials on the Service on any other website or computer environment without our express written permission (which may be withheld for any reason) is strictly prohibited. You agree to use the Service only for purposes as permitted by these TOS and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. The sole exclusion to the above limitations of use is the specific information provided within the Service by the Miami Association of REALTORS® Multiple Listing Service (“MLS”). MLS information is housing unit-specific. For more information on MLS information and guidelines for use, please see http://www.miamire.com/docs/mls/mls_rules_and_regulations.pdf?sfvrsn=2.
2.5 Availability of the Service. The Service, or any feature or part thereof, may not be available in all countries and Evolution makes no representation that the Service, or any feature or part thereof, is appropriate or available for use in any particular location. To the extent you choose to access and use the Service, you do so at your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, any applicable local laws.
2.6 Unsolicited Suggestions. While we welcome comments and suggestions from our users, unfortunately it is our policy not to accept or consider unsolicited suggestions, ideas or materials. The purpose of this policy is to avoid the possibility of misunderstandings when projects we develop may seem to others to be a product of their own creative work. Please do not send us any unsolicited materials including without limitation pitches, ideas, concepts, suggestions, photographs, drawings, videos, audiovisual works and/or other similar materials (“Unsolicited Materials”). If, despite our warnings, you send us any Unsolicited Materials, by sending such Unsolicited Materials you will be deemed to have granted and assigned all right, title and interest in and to such Unsolicited Materials, including without limitation any ideas, methods and inventions contained therein, to us, and we shall be entitled to use such Unsolicited Materials for any purpose whatsoever, commercial or otherwise, without compensation to you. If there is any doubt or ambiguity about whether there has been an actual submission of Unsolicited Materials, such materials shall be collectively and conclusively deemed to be a submission for purposes of this TOS. By submitting Unsolicited Materials to us, you hereby appoint us as your agent with the power to enter into and execute any contract, document and/or do any act that we consider appropriate to confirm the grant of rights, consents, agreements, assignments and waivers set forth in this TOS. You agree that any Unsolicited Materials you submit are not being provided in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and Evolution in any way. To the extent any “moral rights,” “ancillary rights,” or similar rights in or to the Unsolicited Materials exist and are not exclusively owned by us, you agree not to enforce any such rights against us or our licensees, agents, members and other authorized users.
3. Your Use of the Service and Software
3.1Basic Agent Account. You have been provided access to City Hawk by your Association of REALTORS®. When you accept these TOS and complete the City Hawk sign up process, you become a City Hawk “Basic Agent Account” holder.
3.2 Account Security. You will enter your City Hawk account using your MLS ID and Password. We recommend you use a strong password and do not reveal your password to others. You agree that you are responsible for keeping your password confidential and secure, and further understand that you are solely responsible and liable for any activities that occur under your Subscriber ID. If you suspect or become aware of any unauthorized use of your account you agree to contact City Hawk Support at www.city-hawk.com/support. You further acknowledge and agree that the Service is designed and intended for use on an individual basis. Security of your account information is a personal responsibility, and you acknowledge and agree that you are solely responsible for maintaining the confidentiality and security of your account information, and that you are not permitted to let anyone else use your account. You further acknowledge and agree that you will not reveal your account information to anyone else or use anyone else’s account information when accessing the Service. YOU ACKNOWLEDGE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY AND ALL LOSSES AND DAMAGES RESULTING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION, AND THAT WE EXPRESSLY DISCLAIM ALL LIABILITY FOR SUCH LOSSES OR DAMAGES.
3.3 Sign-Up Obligations. You agree that all information you provide to Evolution during the sign up process (“Sign Up Data”) will be true, accurate, complete and current information, and that you shall update the Sign Up Data as needed throughout your term to keep it accurate and current.
3.4 Additional Obligations or Terms of Use. Particular components or features of the Service, provided by Evolution and/or its licensors, may be subject to separate software or other license agreements or terms of use. You must read, accept, and agree to be bound by any such separate agreement as a condition of using these particular components or features of the Service.
3.5 Featured Listings and Buildings. Evolution maintains the right to change the appearance or characteristics of units, buildings, landmarks or other elements within the Service through look, size, description, audio, video, placement, movement or otherwise in order to feature, show or highlight these elements to users. These enhancements will sometimes be done in exchange for additional fees paid by listing agents, brokers or others. By subscribing to the Service, you acknowledge that your Service interface may include these featured elements, some of which may be your featured listings or buildings.
3.6 No Conveyance. Nothing in these TOS shall be construed to convey to you any interest, title, or license in a Subscriber ID, domain name, Sub-account, or similar resource used by you in connection with the Service.
3.7 No Resale of Service. You agree that you will not reproduce, copy, duplicate, sell, resell, rent or trade the Service (or any part thereof, including any content in your browser cache) for any purpose. You also agree that you will not allow anyone else to access the Service using your credentials.
3.8 Use of Location-based Services. Evolution may provide certain features or services through the Service that rely upon device-based location information. To provide such features or services, where available, Evolution may collect, use, transmit, process and maintain your location data, including the real-time geographic location of your device, and you hereby agree and consent to Evolution's and its partners' and licensors' collection, use, transmission, processing and maintenance of such location data to provide such services. In addition, by enabling or using any location-based services or features within the Service, you agree and consent to Evolution collecting, using, processing and maintaining information related to your account, and any devices registered thereunder, for purposes of providing such location-based service or feature to you. Such information may include, but is not limited to, your Subscriber ID, device ID and name, device type and real-time geographic location of your device at time of your request. You may withdraw this consent at any time by not using the location-based features or by turning off the location-based feature settings (as applicable) on your device. When using third party services that use or provide location data as part of the Service, you are subject to and should review such third party's terms and privacy policy on use of location data by such third party services. Any location data provided by the Service is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Evolution nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of location data or any other data displayed by the Service.
3.9 Client Announcements. Evolution reserves the right to publish new Premium Account customer signups with the customer’s authorization and positive feedback at our website and other public forums, such as newspapers, news websites, flyers, purchased print and electronic media, blogs and other media outlets. You shall indemnify and hold harmless Evolution and its third party vendors against any and all claims, losses, damages, liabilities, costs and expenses (including reasonable attorneys fees) arising out of or relating to these announcements.
3.10 Public Display Restricted. Your Broker Account license to City Hawk does not include the use of this Service within a public display or permanent display such as would be set up in an office, sales office or similar venue. To be able to set up a public display on a screen or similar media within an office, sales office or similar venue, please contact Evolution at info@evolutionv.com or 305-672-6011 to learn more about Public Display packages available for purchase.
4. Payment
4.1 Fees. You agree to pay all Service Fees and Featured Listing Fees as each is defined below (collectively, “Monthly Fees”), if any, specified when you signed up for the Service. Monthly Fees will begin upon Service launch. All fees are exclusive of applicable taxes (e.g. sales, use, or value-added tax), unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the Service. Payment for service is on a monthly basis. If you register in the middle of the month, the amount you are charged for usage for the first partial month will be pro-rated based on the number of days remaining in that month. You may cancel the Service at any time, however, all payments to Evolution are non-refundable.
4.1.1 Service Fees. Your use of the Service is free as provided by your Association of REALTORS®.
4.1.2 Premium Account Upgrades and Other Services: You agree that from time to time in your use of the Service you may be provided with opportunities to upgrade to become a City Hawk “Premium Agent Account” holder as well as purchase other City Hawk products and services.
4.2 Credit Card Authorization. You may be asked to provide Evolution with a credit card number from a card issuer that we accept in order to activate and/or pay for any fees related to the Service. Evolution may seek pre-authorization of your credit card account prior to a purchase to verify the credit card is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your card issuer if you have additional questions regarding when an authorization amount will be removed from your statement.
4.3 Payment Method. Evolution will charge all Monthly Fees and any other additional fees you authorize to the charge or credit card account provided by you. By authorizing Evolution to charge a credit card for the Monthly Fees associated with your subscription, you are authorizing Evolution to automatically continue charging that card (or any replacement card if the original card is renewed, lost, stolen, or changed for any reason by the card issuer, and the issuer informs Evolution of the new replacement card account) for all Monthly Fees associated with your subscription. You authorize the card issuer to pay any amounts described herein and authorize Evolution, or any other company that acts as a billing agent for Evolution, to continue to attempt to charge all sums described herein to your credit card account until such amounts are paid in full. You agree to provide Evolution updated information on your credit card upon Evolution’s request and any time the information earlier provided is no longer valid. If payment is not received by Evolution from your credit card issuer or its agents, you agree to pay all amounts due upon demand by Evolution.
4.4 Account Information and Billing Inquiries. You may consult your City Hawk account management page at www.city-hawk.com for details on your account information including payment method and billing currency. If you believe you have been billed in error for the Service please notify us within 45 days of the billing date by contacting City Hawk Support at: www.city-hawk.com/support
4.5 Cancellations and Refunds. All fees and charges paid by you in relation to the Service are nonrefundable, except as otherwise stated herein. Applicable local law may vary this policy.
4.6 Changes in Price. Evolution may at any time, change the price of the Service or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your subscription term will apply to the subsequent month of subscription and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you may cancel your account and stop using the Service. Your continued use of the Service after the effective date of any such change shall constitute your acceptance of such change.
5. Evolution Privacy Policy
You understand that by using the Service, you consent and agree to the collection and use of certain information about you and your use of the Service in accordance with Evolution’s Privacy Policy, as may be amended from time to time. You further consent and agree that Evolution may collect, use, transmit, process and maintain information related to your account, and any devices registered thereunder, for purposes of providing the Service, and any features therein, to you. Information collected by Evolution when you use the Service may also include technical or diagnostic information related to your use that may be used by Evolution to maintain, improve and enhance the Service. You further understand and agree that this information may be transferred to the United States and/or other countries for storage, processing and use by Evolution
6. Content and Your Conduct
6.1 Content. "Content" means any information that may be generated or encountered through use of the Service, such as data files, written text, software, graphics, photographs, images, sounds, videos, messages and other similar materials. You understand that all Content whether publicly posted or privately transmitted on the Service is the sole responsibility of the person from whom such Content originated. This means that you, and not Evolution, are solely responsible for any Content you upload, download, post, email, transmit, store or otherwise make available through your use of the Service. You understand that by using the Service you may encounter Content that you may find offensive, indecent, or objectionable, and that you may expose others to Content that they may find objectionable. Evolution does not control the Content posted via the Service, nor does it guarantee the accuracy, integrity or quality of such Content. You understand and agree that your use of the Service and any Content is solely at your own risk.
6.2 Your Conduct. You agree that you will NOT use the Service to:
6.3 Removal of Content. You acknowledge that Evolution is not responsible or liable in any way for any Content provided by others and has no duty to pre-screen such Content. However, Evolution reserves the right at all times to determine whether Content is appropriate and in compliance with these TOS, and may pre-screen, move, refuse, modify or remove Content at any time, without prior notice and in its sole discretion, if such Content is found to be in violation of these TOS or is otherwise objectionable.
6.4 Backup Your Content. You are responsible for backing up, to your own computer or other device, any important documents, images or other Content that you store or access via the Service. Evolution does not guarantee or warrant that any Content you may store or access through the Service will not be subject to inadvertent damage, corruption or loss.
6.5 Access to Your Account and Content. You acknowledge and agree that Evolution may access, use, preserve or disclose your account information and Content if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce these TOS, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Evolution, its users or the public as required or permitted by law.
7. Trademark Information
Evolution, Evolution Ventures, the Evolution logo, City Hawk, the City Hawk logo and other Evolution trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of Evolution Inc. in the US and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. You are granted no right or license in any of the aforesaid trademarks, and further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Service.
8. Software
8.1 Evolution’s Proprietary Rights. You acknowledge and agree that Evolution or its licensors own all legal right, title and interest in and to the Service and any software provided to you as a part of or in connection with the Service (the “Software”), including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist, further including, without limitation, user interfaces, visual interfaces, music, artwork, building models and their segmentation into units and computer code, design, structure, selection, coordination, expression, “look and feel” and arrangement of the same. You further agree that the Service (including the Software, or any other part thereof) contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
8.2 License From Evolution. Evolution grants you a personal, non-exclusive, non-transferable, limited license to access the Service in accordance with these TOS; provided that you do not (and do not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, sublicense, assign, grant a security interest in or otherwise transfer any right in the Software. In addition, Users may access the Service through your website subject to their agreement to Evolution’s Terms of Use.
8.3 Export Control. Use of the Service and Software, including transferring, posting, or uploading data, software or other Content via the Service, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
8.4 Updates. As part of the Service, you may from time to time receive updates to the Software from Evolution which may be automatically downloaded and installed to your device. These updates may include bug fixes, feature enhancements or improvements, or entirely new versions of the Software. You agree that Evolution may automatically deliver such updates to you as part of the Service and you shall receive and install them as required.
9. Termination
9.1 Termination by You. You may terminate your account or stop you from using the Service at any time. To terminate your account contact City Hawk Support at www.city-hawk.com/support. Any fees paid by you prior to your termination are nonrefundable (except as expressly permitted otherwise by these TOS), including any fees paid in advance for the term during which you terminate. Termination of your account shall not relieve you of any obligation to pay any accrued fees.
9.2 Termination by Evolution. Evolution may at any time, under certain circumstances and without prior notice, immediately terminate or suspend all or a portion of your account and/or access to the Service. Cause for such termination shall include, but not be limited to: (a) violations of the TOS or any other Evolution policies or guidelines; (b) a request by you to cancel or terminate your account; (c) discontinuance or material modification to the Service or any part thereof; (d) a request or order from law enforcement, a judicial body, or other government agency; (e) where provision of the Service to you is or may become unlawful; (f) unexpected technical or security issues or problems; (g) your participation in fraudulent or illegal activities; (h) sharing of your account credentials with others or allowing others to access/use your account or (i) failure to pay any fees owed by you in relation to the Service. Any such termination or suspension shall be made by Evolution in its sole discretion, without any refund to you of any prepaid fees or amounts, and Evolution will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to the Service.
9.3 Effects of Termination. Upon termination of your account you lose all access to the Service and any portions thereof, including, but not limited to, your Broker Account (any Sub-accounts thereunder) and Subscriber ID.
9.4 Surviving Provisions. You agree that in the event of termination of your account, any restrictions or provisions set forth as surviving the termination of this agreement, including without limitation, the provisions of Sections 13 shall survive such termination.
10. Third Party Materials
10.1 Multiple Listing Service. Aspects of the Service may contain information provided in whole or in part by third-party Multiple Listing Services (“MLS”). Your use of such information is subject to the terms and conditions set forth by each individual MLS supplier, including MLS membership requirements. You or your Broker Account holder are solely responsible for fees associated with MLS membership. Evolution is not responsible for the accuracy, timeliness, completeness, functionality, usability or availability of information provided by any MLS data supplier.
10.2 Public Tax Information. Aspects of the Service may contain information gathered in whole or in part from publicly available Tax Appraisal resources. Evolution is not responsible for the accuracy, timeliness, completeness, or availability of such information.
11. Disclaimer of Warranties
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EVOLUTION AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM 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. IN PARTICULAR, EVOLUTION AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EVOLUTION OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
THE THREE DIMENSIONAL ENVIRONMENT, TERRAIN AND BUILDINGS DEPICTED WITHIN THE SERVICE ARE ARTISTIC REPRESENTATIONS AND MAY DIFFER FROM THE ACTUAL ENVIRONMENT, TERRAIN AND BUILDINGS. THE LOCATION OF UNITS, AMENITIES OR FIXTURES WITHIN THE BUILDING ARE APPROXIMATE AND BUILDINGS, LANDMARKS AND UNITS MAY BE MISSING ALTOGETHER FROM THE SERVICE OR MAY BE CHANGED WITHIN THE SERVICE WITHOUT WARNING OR NOTICE TO YOU. NO PURCHASE DECISIONS SHOULD BE MADE BASED ON INFORMATION FROM THIS SERVICE.
EVOLUTION DOES NOT REPRESENT OR WARRANT THAT ANYONE ACTING AS A REALTOR® OR LICENSED REAL ESTATE PROFESSIONAL ACTUALLY HAS THOSE QUALIFICATIONS.
12. Limitation of Liability
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU. YOU EXPRESSLY UNDERSTAND AND AGREE THAT EVOLUTION AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF EVOLUTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICE (II) ANY CHANGES MADE TO THE SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICE.
13. Indemnity
You agree to defend, indemnify and hold Evolution, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any Content you submit, post, transmit, or otherwise make available through the Service; (b) your illegal or unauthorized use of the Service; (c) any violation by you of these TOS; or (d) your violation of any rights of another. This obligation shall survive the termination or expiration of these TOS or your use of the Service. You acknowledge that you are responsible for all use of the Service using your account, including any use by Sub-accounts, and that these TOS apply to any and all usage of your account, including any use by Sub-accounts. You agree to comply with these TOS and to defend, indemnify and hold harmless Evolution from and against any and all claims and demands arising from usage of your account or any Sub-account, whether or not such usage is expressly authorized by you.
14. Notices
Evolution may provide you with notices regarding the Service, including changes to these TOS, by email, by regular mail, or by postings on our website or the Service.
15. Governing Law
Except to the extent expressly provided in the following paragraph, these TOS and the relationship between you and Evolution shall be governed by the laws of the State of Florida, and its conflicts of law provisions. You and Evolution agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Miami-Dade, Florida, to resolve any dispute or claim arising from these TOS.
16. Authorization to Receive Email
You acknowledge and agree that Evolution may send you e-mails. Some of those e-mails may contain offers or promotions from Evolution or its partners or advertisers.
If you wish to discontinue receiving e-mails from us, you may provide notice through the means provided or you may terminate your membership at any time pursuant to the terms of this TOS.
17. General
These TOS constitute the entire agreement between you and Evolution, govern your use of the Service and completely replace any prior agreements between you and Evolution in relation to the Service. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of these TOS is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of Evolution to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these TOS, there shall be no third-party beneficiaries to this agreement. You agree that any claim or cause of action arising out of or related to these TOS or the use of the Service must be filed within one (1) year after the cause of action arose or be forever barred.
18. Acknowledgement and Representation
You acknowledge that the terms and conditions of this TOS are supported by reasonable and valuable consideration, the receipt of which is hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your use of the Service. You represent that you have read and understood the terms and conditions of this TOS.