This Terms and Conditions of Use Agreement ("Agreement") is made by and between Evade, LLC a California limited liability company, with offices at 826 Calle Plano, Camarillo, CA 93012 ("Evade") and you ("You" or "Your"). This Agreement contains the terms and conditions that govern Your use of this Web Site (Evade.com).
BY CLICKING THE "I AGREE" BUTTON OR BY ACCESSING, VISITING, BROWSING OR USING ANY PART OF THIS WEBSITE, OR BY CREATING A EVADE.COM ACCOUNT, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT IS VERY IMPORTANT IN THAT IT GOVERNS YOUR ACCESS TO AND USE OF THE EVADE.COM WEBSITE, EVADE'S SERVICES AND EVADE'S PRODUCTS (DEFINED BELOW). IN FACT, YOUR ACCESS TO AND USE OF THE EVADE.COM WEBSITE, EVADE'S SERVICES AND EVADE'S PRODUCTS (DEFINED BELOW) ARE EXPRESSLY CONDITIONED ON YOUR COMPLIANCE WITH THIS AGREEMENT. TO DECLINE ACCEPTANCE, CLICK THE "CANCEL" BUTTON. NOTE THAT ANY VIOLATION OF THESE TERMS MAY RESULT IN TERMINATION OF YOUR ABILITY TO ACCESS THE EVADE.COM WEBSITE, EVADE'S SERVICES AND EVADE'S PRODUCTS (DEFINED BELOW) AND WILL ALSO ALLOW US TO CANCEL YOUR ACCOUNT.
III. GENERAL RULES
A. You will comply with all of the terms and conditions of this Agreement and all applicable laws, regulations and rules when You use (i) the Evade.com website; or (ii) any of the services provided by or through Evade or by, through, on or in the Evade.com website, including, without limitation, the uploading of photographs to Evade's website or servers, designing and purchasing products created and assembled by Evade and accessing certain features of the Evade.com website (individually, a "Service" and collectively, "Services"), whether You just browse the Evade.com website, redeem a gift certificate or become a Registered User (defined below). The Services may be used by You to design and/or submit for assembly, production and distribution scrapbooks, photo-books, memory books or other goods ("Product" or "Products"), which Products are assembled, produced and distributed by Evade.
B. Evade will only provide the Evade.com Services to persons and entities able to form legally binding contracts under applicable law. Without limiting the foregoing, minors are excluded from using Evade.com and Evade's Services. By entering into this Agreement, you represent and warrant that You are of sufficient age, or are an entity that is able to form a legally binding contract under applicable law.
C. If Evade determines, in its sole and absolute discretion, that You have or will breach a term or condition of this Agreement by using, designing, saving, publishing or ordering a Evade Product or Service, Evade may cancel any order for such Product or Service and/or cancel Your account without any liability to You or any third party.
IV. OPENING AN ACCOUNT
B. You must provide Evade with accurate and complete contact information if You open an account with Evade. If You order any Product, You must also provide Evade with accurate and complete payment, billing and shipping information. If any such contact, payment, billing or shipping information changes, You must notify Evade immediately upon accessing Evade.com for the first time after such change(s).
C. Accounts are password protected. Such passwords are chosen by You at the time of registration. You will be responsible for any and all use of Your password, including, without limitation, any use by any unauthorized third party. You must notify Evade immediately if You believe Your password has been or may be obtained or used by any unauthorized person or entity. In addition, You must notify Evade immediately if You become aware of any other breach or attempted breach of the security of the Evade.com website.
V. YOUR CONDUCT
A. You shall be solely and exclusively be responsible for Your Evade.com account, including, without limitation, (i) any and all content posted or uploaded through such account, posted in or onto such account, or otherwise posted or uploaded to or onto the Evade.com website or Evade's servers; (ii) any and all designs, layouts and organization of such content and (iii) any and all other contents of or related to such account ("User Content"). You shall also be solely and exclusively responsible for staying in compliance with the terms and conditions of this Agreement and all applicable laws, regulations and rules.
B. Evade may request confirmation from You of Your copyright, trademark or other intellectual property ownership of any or all of Your User Content. If Evade does not receive any such confirmation or if there are claims of copyright, trademark or other intellectual property infringement relating to Your User Content, Evade reserves the right to (i) suspend the shipping of an order relating to Your User Content in question; and/or (ii) share Your account information with governmental organizations, law enforcement authorities or other third parties. If You dispute any copyright, trademark or other intellectual property infringement claims made against Your User Content, we will share with You the contact information of any party claiming any such infringement. In the event of any such dispute, Evade reserves the right to suspend the display, viewing or sharing of any Your User Content until the issue has been resolved. Evade also reserves the right to delete Your User Content in the event of such a dispute.
C. You shall not use the Evade.com website to post content or to design any good or product that, in Evade's sole and absolute discretion, (i) infringes the rights of a third party, including, without limitation, copyrights, trademarks, patents, trade secrets or rights of privacy or publicity; (ii) is libelous, defamatory or slanderous or is otherwise designed to or does harass, threaten or abuse others; (iii) is sexually suggestive or contains explicitly sexual content (including pornography or nudity); (iv) does or may denigrate or offend any ethnic, racial, gender, religious or other protected group, through use of language, images, stereotypical depiction or otherwise; (v) exploits images or the likeness of minors; (vi) encourages or depicts the use of drugs, alcohol or cigarettes; or (vii) is generally offensive or in bad taste.
D. You will not (i) use "spam," "blast-faxes" or recorded telephone messages to market or sell any product created using Evade's Services or purchased through Evade; (ii) use a robot, spider, software program, computer or other device, or any other process, to monitor the activity on or copy any content from the Evade.com website; (iii) interfere with the Evade.com website or Evade's Services by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (iv) copy, modify, create derivative works from, reverse engineer, decompile or disassemble any technology used on the Evade.com website or used to provide any Evade Product or Service; (v) collect electronic mail addresses or other personally identifiable information from third parties by using the Evade.com website or by using any Evade Product or Service; (vi) impersonate another person or entity; (vii) engage in any activity that interferes with any third party's ability to use or enjoy the Evade.com website or any Evade Product or Service; (viii) assist any third party, other user of the Evade.com website or user of any Evade Product or Service to engage in or who is engaged in any activity prohibited by this Agreement.
VI. INTELLECTUAL PROPERTY RIGHTS
A. Evade solely and exclusively owns all intellectual property and other rights, title and interest in and to the Evade name, the Evade.com website, the services provided by and through Evade and the Evade.com website, including all information, content and materials therein and thereon, and in and to the Services ("Evade's IP Rights"). Evade's IP Rights are protected by applicable laws of both the United States and other countries. You may not copy or distribute such material without Evade's prior written consent. You may only use such materials for Your personal, non-commercial use only, subject to the restrictions set forth in this Agreement, so long as You do not modify such materials or remove any copyright or other proprietary rights notices contained in the materials. All right, title and interest in and to the Evade site and the Services are and will remain the exclusive property of Evade and its licensors. You may not copy or modify the HTML code or any other computer code used to generate web pages on the Evade.com website. You may not use the site or the Services on, or in connection with, any other website, for any purpose. Evade will have the sole and exclusive right to obtain trademark and copyright registrations, patents and other protection therefor, and You will not acquire any right, title or interest therein, under this Agreement or otherwise.
B. You will retain all rights to Your User Content provided that You had rights in or to such content prior to uploading or posting it onto or through Your account. You hereby grant to Evade and Evade.com for the purposes of providing the services, a royalty-free, worldwide and nonexclusive right in and license to (i) all User Content; and (ii) all books, goods or Products, and/or any portion thereof, which You create or design through or using the Evade.com website or Service. In addition, You warrant that all moral rights in and to all Your User Content and uploaded materials have been waived and You do hereby waive any such moral rights. The provisions in this Section VI shall survive any termination of Your account or of this Agreement.
C. You may not use, nor do You have any right to use, any of Evade's IP Rights. Without limiting the forgoing, in no event will You have any right to, nor will You use any of Evade's IP Rights to advertise, promote, sell or re-sell any product, good or service You purchased from Evade or through the Evade.com website.
D. Many of Evade's customers and Registered Users are interested in submitting ideas for products and services to be used at Evade and Evade.com, either independent of, or in conjunction with, our internally developed concepts. We appreciate such interest in our products and services and any effort expended in improving the same. Nevertheless, please know that any unsolicited ideas submitted to Evade or any of its employees automatically becomes the property of Evade, LLC. By submitting unsolicited ideas to Evade, You automatically forfeit any and all intellectual property rights to or in these ideas. If You want to own the intellectual property rights of Your ideas (patent, trade secrets, copyright, trademark, etc.), please do not, in an unsolicited manner, submit Your concepts or prototype samples to Evade or its employees. Rather, send a message to info@Evade.com and be careful to only describe the general application. If we would like to pursue Your idea further, we will contact You. Please know that we may require a legal agreement between You and Evade before we can fully evaluate Your idea(s).
VII. REPRESENTATIONS AND WARRANTIES
A. Each party represents and warrants to the other party (i) that it has the full power and authority to enter into and perform under and according to this Agreement; (ii) the execution and performance by it of its obligations under this Agreement do not constitute a breach of or conflict with any other agreement or arrangement by which it is bound, or any applicable laws, regulations or rules; and (iii) this Agreement is a legal, valid and binding obligation of the party executing this Agreement, enforceable in accordance with its terms and conditions. You agree that You have been provided an opportunity to - and are encouraged to - have Your independent legal counsel review this Agreement and provide advice to You regarding this Agreement.
B. You represent and warrant to Evade that all content You submit through or onto Evade.com and all of Your User Content will not infringe the copyright, trademark, patent, trade secret, privacy and publicity rights or any other legal right of any third party. You further represent and warranty that You (i) are the copyright holder and have any and all other right, title and interest to all User Content and all other content and material You post or upload to Evade.com; or, in the alternative, that you (ii) have permission to post or upload all User Content and all other content and material You post or upload to Evade.com for each and every purpose that such content and material is so uploaded or posted.
C. Pixtoire is committed to protecting the intellectual property rights of others and expects its users, whether registered or not, to do the same. Anyone submitting content to Evade, including any User Content is required by U.S. law to own the right to, or to obtain permission to, use such content before such content is uploaded or printed at Evade. At Evade's discretion and in appropriate circumstances, Evade may terminate the accounts of users or prevent access to the Services by users who infringe the intellectual property rights of others. If You believe that Your work has been copied in a way that infringes Your copyrights or is being used in any manner that infringes any of Your other intellectual property rights, please contact us at the following address and provide all relevant details.
Attention: Intellectual Property Team
31111 Agoura Road, Suite 245
Westlake Village, CA 91361
Fax: (818) 879-8763
VIII. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS
A. UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT OR IN THE TERMS AND CONDITIONS OF SALE, EVADE AND EVADE.COM PROVIDE THE EVADE.COM WEBSITE AND THE SERVICES, PRODUCTS OR GOODS PROVIDED THEREIN, THEREFROM OR THERE THROUGH ON AN "AS IS" BASIS. NEITHER EVADE NOR EVADE.COM REPRESENTS OR WARRANTS THAT THE PRODUCTS, EVADE.COM SERVICE OR ITS USE (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. EVADE MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT OR IN THE TERMS AND CONDITIONS OF SALE AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
B. THE THIRD-PARTY LINKS, SERVICES, RESOURCES AND INFORMATION THAT EVADE PROVIDES ON OR MAKES AVAILABLE THROUGH THE EVADE.COM WEBSITE OR THROUGH EVADE'S CORRESPONDENCE TO YOU ARE NOT CONTROLLED BY EVADE. ACCORDINGLY, EVADE MAKES NO WARRANTIES REGARDING SUCH THIRD-PARTY SERVICES, RESOURCES OR INFORMATION, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. EVADE WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH THIRD-PARTY SERVICES, RESOURCES OR INFORMATION.
C. EVADE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE PRODUCTS, SERVICES OR THE EVADE.COM WEBSITE, BASED ON ANY CAUSE OF ACTION, EVEN IF YOU ASSERT OR ADVISED OF THE POSSIBILITY OF RECOVERING SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE THAT EVADE IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, EVADE WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE EVADE.COM WEBSITE OR THROUGH THE SERVICE.
D. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THIS AGREEMENT OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF (i) THE AMOUNT PAID BY YOU TO EVADE DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $500.00.
You will indemnify and hold Evade and its employees, representatives, agents, affiliates, directors, officers, managers, members and shareholders (the "Indemnified Parties") harmless from any damage, loss, cost or expense (including without limitation, reasonable attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Indemnified Parties insofar as such Claim alleges facts or circumstances that would constitute a breach of any provision of this Agreement by You. If You are obligated to provide indemnification hereunder, Evade may, in its sole and absolute discretion, control the disposition of any Claim at Your sole cost and expense. Such control over the disposition of any Claim by Evade shall include, without limitation, Evade's ability to choose its own counsel and to make any and all strategic decisions related to such disposition. Without limitation of the foregoing, You will not settle, compromise or in any other manner dispose of any Claim without the consent of Evade. If You are obligated to provide indemnification hereunder, Evade may withhold any payment it is otherwise required to make to You as a set off against Your indemnity obligations.
A. In its sole and absolute discretion, with or without notice to You, Evade may (i) suspend or terminate Your use of the Evade.com website and all Services; (ii) terminate Your account; or (iii) remove from the Evade.com website or from any of Evade's servers, any of Your User Content.
B. If You are a Registered User, You may terminate Your account for any reason at any time by contacting Evade at info@Evade.com.
C. This Agreement will survive indefinitely unless and until Evade chooses to terminate it, regardless of whether any account You open is terminated by You or Evade.
D. If You or Evade terminate Your account, or if Evade takes any action pursuant to Section X.A, Evade may delete any of (i) Your User Content; (ii) Your files, photographs, graphics or other content or materials relating to Your use of the Evade.com website or to the Services or Products, including without limitation, any photo books, scrapbooks or memory books You have created or saved on Evade.com; or (iii) any other material related or connected to You on Evade's servers or otherwise in Evade's possession. In doing so, Evade will have no liability to You or any third party whatsoever. If You or Evade terminate Your account You must immediately remove all links to the Evade.com website from any other websites You operate, use or control and cease representing Yourself as a Registered User.
XI. THIRD-PARTY SERVICES
XII. ADDITIONAL TERMS
C. If You order and/or pay for Products, You do so in accordance with Evade's Terms and Conditions of Sale.
D. Evade will ship Products and accept returns in accordance with Evade's Terms and Conditions of Sale.
All notices required or permitted to be given under this Agreement will be in writing and delivered to the other party by any of the following methods: (i) hand delivery; (ii) certified U.S. mail, return receipt requested, postage prepaid; (iii) reputable overnight courier; or (iv) electronic mail. If You give notice to Evade, You must use the address first set forth above or the following email address: info@Evade.com. If Evade provides notice to You, Evade must use the contact information provided by You to Evade. All notices will be deemed received as follows: (i) if by hand-delivery, on the date of delivery; (ii) if by delivery by U.S. mail, on the date of receipt appearing on the return receipt card; (iii) if by overnight courier, on the date receipt is confirmed by such courier service; or (iv) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated.
XIV. PROMOTIONS - OFFICAL CONTEST RULES
No purchase necessary to enter. Contest entrants may enter by creating an account during the contest period, and there will be one drawing per week during the contest period. After each week, the eligible entrant list is re-set, such that only entrants creating an account during the week immediately after the last drawing (or, in the case of the first drawing, during the first week of the contest period) are eligible for that week’s drawing. Each week, for the purposes of these rules, shall begin on Monday at 12:00 a.m. P.S.T. and end the following Sunday at 11:59 p.m. Pixtoire shall determine, in its sole and absolute discretion when the contest period begins and ends. Limit one entry per person per email address during the contest period. The weekly drawing will be for a free 12 page Evade album, which shall be given away in a random drawing of all eligible registrants for that week’s drawing. Winners will be notified by email and will be required to build and order their free album by October 1, 2007. The odds of winning depend on the number of eligible entries received and submitted in accordance with the rules.
Open to legal residents of the United States. You must be 18 years of age or older at the time of contest drawing to win. All federal, state, and local laws and regulations apply. Void where prohibited or restricted by law. All federal, state, and local taxes are the sole responsibility of the winner.
By completing and submitting a registration, and by creating an account during the contest period, the registrant agrees to abide by the terms of these official rules and the decisions of Evade, LLC, which are final and binding on all matters pertaining to the contest. Evade, LLC shall not be responsible for any damages, taxes, or expenses that any winner might incur as a result of any contest. All winners accepting a prize agree that the prize is awarded on the condition that Evade will not have any liability whatsoever for any injuries, losses, or damages of any kind resulting from acceptance, possession, or use of the prize. Each winner further acknowledges that Evade is not responsible or liable for any warranty, representation, or guarantee, express or implied, in fact or in law, relative to any prize, including but not limited to its quality or fitness. No winner may make any substitutions or transfers of any prize.
A. By using the Evade.com site, and each and every time You use the Evade.com website, You agree to the terms of and enter into this Agreement and You also expressly consent to receive any and all e-mail communications from Evade, whether such e-mails are considered "commercial" e-mails or "transactional or relationship" e-mails, as those terms are used in 15 U.S.C. 7701, et seq. You agree that this Agreement is a clear and conspicuous request for such express consent and that by entering into to this Agreement, You hereby grant such consent. Moreover, by entering into this Agreement, You have requested that we correspond with You via e-mail, regardless of the type or name such messages may or may not be given under Federal law or the laws of any other jurisdiction. We may also send You information on carefully screened third parties whose products or services may be of interest to You and You hereby consent to the same. If You do not want to receive such e-mail or other mail from us, please contact us via the form on the Contact Us page. We also use e-mail to provide service announcements concerning important information about your account, our products and our services. Service announcements contain important, often vital, information. Members cannot unsubscribe to service announcements.
B. All scrapbooks or other content saved, but not saved by a Registered User, may be deleted 15 days after the date such scrapbook or content was created. All scrapbooks or other content saved by a Registered User, but which have/has not been ordered within 45 days of creation, may be deleted. All scrapbooks or other content saved by a Registered User, and which have/has been ordered, may be deleted within 60 days after the date of the last order of such scrapbook or content.
C. All items purchased through Evade are sent pursuant to a shipment contract. This means that the risk of loss and title for any such items pass to You upon our delivery of such items to our shipping carrier.
D. This Agreement will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. Any action or proceeding to enforce this Agreement will be brought in the federal or state courts located in Los Angeles County, California. All parties to this agreement consent and agree -- to the extent possible -- to the personal jurisdiction of the federal and state courts located in Los Angeles County, California, and the parties expressly waive any objection to personal jurisdiction, venue, or forum non conveniens.
E. This Agreement will not be assignable or transferable by You without the prior written consent of Evade.
F. This Agreement (including all of the agreements, rules and policies described and referenced in Section XII, which are hereby incorporated herein by this reference) contains the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter.
G. No failure or delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement.
H. No independent contractor, agency, partnership, joint venture or employee-employer relationships are intended or created hereby.
I. If for any reason any provision of this Agreement shall be deemed by an arbitrator or court of competent jurisdiction to be legally invalid or unenforceable in any jurisdiction to which it applies, the validity of the remainder of this Agreement shall not be affected, and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law, and in this modified form, such provision shall then be enforceable and enforced.
J. Any dispute, controversy or claim arising out of or relating to this Agreement, or any breach thereof, including, without limitation, any claim that this Agreement, or any part hereof, is invalid, illegal or otherwise voidable or void, shall be submitted to binding arbitration under the then-current American Arbitration Association (AAA) rules for arbitration of business disputes by a sole arbitrator who shall be a former superior court or appellate court judge or justice with significant experience in resolving business disputes. The arbitration shall be conducted in Los Angeles County, California. The arbitrator shall issue a written, reasoned decision and award within ninety (90) days from the date the arbitration proceedings are initiated. Judgment on the award of the arbitrator may be entered in any court having jurisdiction thereof. Any arbitration hereunder may be consolidated with the arbitration of any other dispute arising out of or relating to the same subject matter when the arbitrator determines that there is a common issue of law or fact creating the possibility of conflicting rulings by more than one arbitration. The arbitrator shall not have the power to alter, amend, modify or change any of the terms of this Agreement nor to grant any remedy which is either prohibited by the terms of this Agreement, or not available in a court of law.
K. In the event of any claim, dispute or controversy arising out of or relating to this Agreement, the prevailing party in such action shall be entitled to recover its court (if applicable) and arbitration costs and reasonable out-of-pocket expenses not limited to taxable costs, including, but not limited to, phone calls, photocopies, expert witness, travel, etc., and reasonable attorneys' fees to be fixed by the court or arbitrator. Such recovery shall include court and arbitration costs, out-of-pocket expenses and attorneys' fees on appeal, if any. The court or arbitrator shall determine which party is the "prevailing party," whether or not the dispute or controversy proceeds to final judgment. If either party is reasonably required to incur such out-of-pocket expenses and attorneys' fees as a result of any claim arising out of or concerning this Agreement or any right or obligation derived hereunder, then the prevailing party shall be entitled to recover such reasonable out-of-pocket expenses and attorneys' fees whether or not an action is filed.
Last Updated on April 9, 2008