EVO.ID END USER AGREEMENT
Please read this User Agreement (the “Agreement”) very carefully. By clicking the “I Accept” or “I Agree” or any similar button within any Service (as defined below) or by accessing, installing, visiting, downloading, registering with, or utilizing Evolution’s website (the “Site”), mobile application (the “App” or “EvoMobile”), data portal (“evo.ID”), or EvoScreen application (“EvoScreen”) (each, a “Service” and, together, the “Services”), as applicable, you expressly agree to and will be bound by the terms and conditions of this Agreement. If you do not agree with these terms and conditions, please leave the Service and/or do not access, install, visit, download, register with, or utilize the Service. If you are an employee or agent of a company or other entity and you are entering into this Agreement to obtain access to, install, visit, download, register with, or utilize one of the Services for the company’s or entity’s business purposes or in connection with your duties to the company or entity, you hereby agree that you have the authority to bind the company or entity to the terms and conditions of this Agreement and that you enter into this Agreement on behalf of the company or entity. If you do not meet these requirements, you must not access, install, visit, download, register with, or utilize the Services. “You” or “your” refers to, collectively, the individual selecting “I Accept” or “I Agree” or any similar button or accessing, installing, visiting, downloading, registering with, or utilizing the Service(s) and to any such company or entity. “Evolution” means Evolution Markets Inc. and its subsidiaries and affiliates, as applicable.
PLEASE CAREFULLY READ THESE TERMS, INCLUDING THE SECTION RELATING TO THE ARBITRATION AGREEMENT, CLASS ACTION WAIVER, AND WAIVER OF JURY TRIAL, SINCE THEY AFFECT YOUR LEGAL RIGHTS.
1. Changes to this Agreement Evolution may revise and update this Agreement from time to time for any reason at Evolution’s sole discretion. All changes are effective immediately when Evolution posts them, and apply to all access to and use of the Services and the pricing and other market data provided, accessible, or viewable via the Services (the “Evo Information”) thereafter. Your continued use of the Services following the posting of revised terms and conditions means that you accept and agree to the changes.
2. License; Use of the Services
(a) Subject to the terms and conditions of this Agreement and in accordance with all Applicable Laws, you are hereby granted a limited, revocable, non-assignable, non-transferable, non-sublicensable, non-exclusive license to use the Services solely for information purposes and for the purpose of supporting your bona fide trading operations and transacting.
(b) You undertake to use the Services solely for your own benefit for information purposes and for the purpose of bona fide transacting. You may not use the Services to obtain price information unless you are using the Services for bona fide purposes.
(c) Evolution may occasionally make information and data available to you through the Services about various markets, transactions, or services, including Evolution’s own reports and commentaries and reports or presentations prepared by others. You should not view the fact that Evolution makes this information available as its recommendation to you of any particular market, transaction, investment strategy, service, or service provider. This information is not personalized and is in no way tailored to reflect your own circumstances or objectives, and the markets, transactions, or other matters discussed might not be suitable for you. You acknowledge and agree that you are not relying upon any representations or opinions of Evolution to influence your decision to negotiate, enter into, or execute any transaction. Evolution is not acting as a fiduciary or as a financial, legal, tax, investment, trading, or other advisor for you and Evolution has no obligation to determine that any transaction or service is suitable or appropriate for you. None of the Services constitutes an investment recommendation and none of the Services should be relied upon in making any decision to enter into any transaction or pursue any strategy. Nothing in this Agreement or the Services constitutes an offer or a solicitation for the purchase or sale of any security or commodity or the execution of any transaction.
(d) Some of the Services may serve as a price dissemination tool that may also permit you to post indications of interest. It is in your sole discretion to post such indications of interest. No trade related to such pricing or indications of interest shall be executed unless and until execution is confirmed through bilateral communications with an Evolution broker. By contacting an Evolution broker through a Service or by submitting an indication of interest, you authorize Evolution’s brokers to initiate and conduct bilateral communications with you and with other parties (whether or not they use any of the Services) regarding such indications of interest and, if a trade is executed pursuant to such bilateral communications, to submit the resulting trade to the applicable clearing organization(s), if any. All trades are subject to the applicable separate agreements between you and Evolution, including, but not limited to, any brokerage services agreement or give-up agreement. No trade shall be executed unless and until execution is confirmed by an Evolution broker. Evolution functions solely as a broker and is not a party to any trade, and Evolution makes no representations to, and has no ability to bind, any party to a transaction. It is your sole responsibility to conduct a review and diligence of any trade and trading counterparty.
(e) The Services may display pricing information or indications of interest for the purpose of soliciting bids or offers from you and other parties. Such pricing information and indications of interest will not necessarily represent prices at which trades have been made or will be made and will not themselves constitute firm bids or offers.
(f) Evolution has sole discretion and control over, and the right at any time and without notice to you, to temporarily disable, suspend, or permanently modify, remove, or terminate all or any part of any Service’s functionality, configuration, appearance, and content, including, but not limited to, the selection of financial products, transactions, or information displayed on each of the Services and Evolution will not be liable to you or to any third party for doing so.
(g) Each of the Services and the Evo Information are owned by Evolution. Any rights not explicitly granted by Evolution in this Agreement are reserved to Evolution. (h) You are responsible for making all arrangements necessary for you to have access to the Services (e.g., providing your own equipment and internet connection and paying any Internet access fees).
(a) You hereby expressly acknowledge and agree that you and your employer shall be jointly and severally responsible and liable for all of your activity in connection with the Services.
(b) You shall comply with all Applicable Laws and this Agreement in connection with your use of and access to the Services and Evo Information, and you shall not use the Services or Evo Information for any purpose prohibited by Applicable Law, including money laundering, market manipulation, marking the close, executing “wash” sales, spoofing, or any other transaction that is prohibited by Applicable Law. As used herein, “Applicable Laws” means any federal, state, or other laws, rules, or regulations, as well as the rules and regulations of any self-regulatory organization, exchange, or clearing house to which Evolution, any of the Services, Evo Information, you, or your employer are or may be subject, including, but not limited to, the rules, regulations, and interpretations of the Securities and Exchange Commission, the Board of Governors of the Federal Reserve System, the Department of the Treasury, the Commodity Futures Trading Commission, the National Futures Association, the Financial Industry Regulatory Authority, the U.K. Financial Conduct Authority, or any other governmental, regulatory, self-regulatory, or clearing organization in which Evolution, you, or your employer are members or to whose rules they or any of their officers, directors, employees, or agents otherwise may be subject.
(c) You may not use the Services or Evo Information: (i) on behalf of any third party; (ii) for any purpose other than as set forth herein; or (iii) in any manner that may impair, overburden, damage, disable, or otherwise compromise (w) Evolution’s services, including the Services and Evo Information, (x) any other party’s use and enjoyment of Evolution’s services, including the Services and Evo Information, (y) the services and products of any third party, or (z) the security or proprietary nature of the Services or Evo Information.
(d) From time to time, Evolution may update the Services (“Updates”). Updates may contain, without limitation, bug fixes, patches, enhanced functionality, plug-ins, and new versions. By using the Services, you agree that Evolution may download and install all Updates automatically as they become available, in Evolution’s sole and absolute discretion. Your use of the Services and Updates will be governed by this Agreement (as may be amended from time to time).
4. User Information
(a) Evolution uses reasonable measures (i) to safeguard the information you provide through the Services against loss, theft, unauthorized use, disclosure, or modification and (ii) to ensure the integrity of such information. You must maintain the secrecy of any user name(s) or password(s) you have set up in connection with your use of the Services.
(b) Evolution may track and archive information regarding your use of the Services, including, without limitation, your identity, your posting of indications of interest, data resulting from your use of the Services, and any other data you transmit via the Services (collectively, “User Information”). User Information may be stored and processed in the United States or any other country in which Evolution’s agents maintain facilities. By using the Services, you consent to the collection of User Information and to any transfer of User Information outside of your country.
5. Market Data
You acknowledge that during the term of this Agreement, you may receive market-related data (the “Data”) from Evolution from time to time (for example, through evo.ID or EvoScreen). Evolution retains ownership of the Data and all right, title, and interest therein. Evolution grants you a limited, revocable, non-assignable, non-transferable, non-sublicensable, royalty-free, and non-exclusive license (the “License”) to use the Data solely to (i) determine whether to execute trades with Evolution, (ii) execute trades with Evolution, or (iii) facilitate post-trade functions directly relating to transactions executed through Evolution (collectively, the “Purpose”), and for no other purpose whatsoever. Your use of the Data is subject to Evolution’s Market Data Policy (available here), which, as amended from time to time in Evolution’s sole discretion, is hereby incorporated herein and made a part hereof. Any use of the Data outside of the Purpose shall require you to enter into a separate Master Data License Agreement (“MDLA”) with Evolution. For the avoidance of doubt, uses of the Data that require an MDLA include, but are not limited to: any enterprise-level usage of the Data, mark-to-market valuation or accounting, risk management, compliance and risk controls, portfolio valuation, and commodity pricing.
6. Proprietary Rights
(a) Evolution owns the Services and their respective features, contents, and functionality (including, but not limited to, all information, software, code, algorithms, database, text, displays, images, video, and audio) and the Evo Information. Evolution retains control over the form and content of the Services and is permitted to change either or both at any time, in its sole discretion. You hereby acknowledge and agree that, as between you and Evolution, Evolution owns all right, title, and interest in and to the Services and to any and all proprietary and confidential information contained therein or accessible or provided thereby, including any Evo Information, and any derivative works thereof, including all patent, copyright, trademark, trade secret, and other intellectual property and proprietary rights. The Services and Evo Information are protected by applicable intellectual property and other laws, including patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions, and restorations thereof, now or hereafter in force and effect worldwide. No right, title, or interest in or to any of the Services or any content on any of the Services is transferred to you, and all rights not expressly granted are reserved by Evolution. Any use of the Services not expressly permitted by this Agreement is a breach of this Agreement and may violate copyright, trademark, and other laws.
(b) You acknowledge and agree that Evo Information is the valuable, proprietary information of Evolution and you agree to maintain Evo Information as confidential. You further agree that you will not (and will not allow any third party to): (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, or disassemble any of the Services or otherwise attempt to derive source code, algorithms, software design, or architecture from any of the Services; (ii) copy, display, distribute, modify, rearrange, use as an input to any other application or process, transfer, sell, relicense, sublicense, or share any of the Services or any Evo Information (including any modification or portion thereof); (iii) take any action to circumvent, compromise, or defeat any security measures implemented in any of the Services; (iv) remove, obscure, or alter Evolution’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed through any of the Services or Evo Information; (v) modify, adapt, translate, or reproduce any of the Services or Evo Information; (vi) merge any part of the Services with or into other software or create derivative works based upon any of the Services; (vii) use any of the Services to operate a time-sharing, outsourcing, or service bureau environment, or as an application service provider; (viii) conduct any systematic or automated data collection activities (including, without limitation, scraping, data mining, data extraction, and data harvesting) on or in relation to the Services or Evo Information; (ix) take or authorize any action that could detrimentally interfere with the proper workings of any of the Services; (x) use any robot, spider, or other automatic device or means to access any of the Services for any purpose (including monitoring or copying any of the material of information from any of the Services); or (xi) use any of the Services or the Evo Information for any purpose competitive to any of the Services, or for the purpose of disparaging any of the Services. Evolution, EvoMobile, evo.ID, and EvoScreen are trademarks and service marks of Evolution Markets Inc. or its affiliates. You must not use such trademarks and service marks without the express prior written permission of Evolution. All rights are reserved.
(c) The Services may contain (or you may be sent via the Services) links to websites (“Third-Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by Evolution, and Evolution is not responsible for any Third-Party Websites accessed through the Services or any Third-Party Content posted on, available through, or installed from the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by Evolution.
7. Export Restrictions
Evolution does not represent that any of the Services is appropriate or available for use in any geographic location. Each of the Services is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States and foreign agency or authority relating to the Services and your use of the Services. None of the Services may be re-exported, downloaded, or otherwise exported to, or installed by a national or resident of, any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Each time you access the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
(a) This Agreement will remain in full force and effect until the date on which Evolution ceases to make the Services available to you (the “Term”), which Evolution may do in its sole discretion.
(b) You may terminate this Agreement at any time by emailing email@example.com and requesting the deletion of your account(s). Upon the processing of such request, you will receive a confirmation via e-mail or other means that your account(s) was terminated. You are responsible for all usage up to the time your account is terminated. The termination of your account(s) shall not in any way affect your obligations (including, but not limited to, any commissions owed) under any brokerage services agreement or other agreement between you or your employer and Evolution.
(c) Evolution shall have the right, in its sole discretion, to terminate your use of the Services and Evo Information if you are no longer a client of Evolution, as determined by Evolution in its sole discretion. If you fail to comply with any provision of this Agreement, any rights granted to you herein shall automatically terminate.
(d) Upon termination of this Agreement, you must immediately cease all use of the Services and Evo Information. Termination of this Agreement does not in any way limit or prohibit Evolution from pursuing any remedy available to it, including injunctive relief. Notwithstanding anything herein, Evolution reserves the right, in its sole discretion, to pursue any and all claims against you and/or any user of your account.
Any terms of this Agreement that would, by their nature, survive the termination or expiration of this Agreement shall so survive, including Sections 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24 of this Agreement.
You agree to and shall defend, indemnify, and hold harmless Evolution and its affiliates, suppliers, and agents and its and their respective shareholders, directors, officers, employees, attorneys, representatives, and agents, from and against any and all losses, liabilities, claims, damages, costs (including attorney’s fees and the costs of enforcing this indemnity), settlements, penalties, judgments, awards, actions, suits, and proceedings directly or indirectly arising from or relating to your use or misuse of any of the Services and/or Evo Information or your breach of this Agreement.
11. Disclaimer of Warranties
EACH OF THE SERVICES AND EVO INFORMATION ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVOLUTION EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND NONINFRINGEMENT AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. YOUR USE OF ANY OF THE SERVICES AND EVO INFORMATION AND DATA IS AT YOUR SOLE RISK. YOU AGREE THAT, TO THE GREATEST EXTENT PERMITTED BY LAW, EVOLUTION SHALL HAVE NO LIABILITY TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICES OR EVO INFORMATION.
EVOLUTION MAKES NO WARRANTY: (I) THAT THE SERVICES OR EVO INFORMATION WILL MEET YOUR REQUIREMENTS; (II) THAT THE SERVICES OR EVO INFORMATION WILL BE ERROR-FREE; (III) REGARDING THE SECURITY, RELIABILITY, AVAILABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICES OR EVO INFORMATION; OR (IV) THAT ANY ERRORS IN THE SERVICES OR EVO INFORMATION WILL BE CORRECTED.
THE EVO INFORMATION AND DATA ARE DERIVED FROM SOURCES DEEMED RELIABLE, BUT EVOLUTION DOES NOT GUARANTEE THE ACCURACY, CORRECTNESS, RELIABILITY, OR COMPLETENESS OF ANY DATA OR OTHER INFORMATION FURNISHED IN CONNECTION WITH THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND ADEQUACY OF ANY DATA AND INFORMATION USED BY YOU AND THE RESULTANT OUTPUTS THEREOF. ANY EVO INFORMATION OR OTHER MATERIAL YOU OBTAIN THROUGH THE SERVICES IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICES, ANY LOSS OF DATA, OR ANY OTHER DAMAGE THAT MAY RESULT FROM USING THE SERVICES OR EVO INFORMATION.
NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EVOLUTION OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT EVOLUTION IS NOT PROVIDING ANY RECOMMENDATIONS OR ANY INVESTMENT, LEGAL, OR TAX ADVICE AND THAT EVOLUTION IS NOT ACTING AS A FIDUCIARY ON BEHALF OF OR TO YOU. YOU AGREE TO USE THE SERVICES AND EVO INFORMATION AT YOUR OWN RISK AND TO EXERCISE YOUR INDEPENDENT JUDGMENT IN CONNECTION WITH DETERMINING THE SUITABILITY OF, AND WHETHER TO ENTER INTO, ANY TRANSACTIONS, WHETHER BASED ON EVO INFORMATION OR NOT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EVOLUTION AND ITS AFFILIATES, SUPPLIERS, AND AGENTS, AND ITS AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AND AGENTS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF EVOLUTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, BUT NOT LIMITED TO, LOSSES RESULTING FROM: (I) THE USE OR THE INABILITY TO USE ANY OF THE SERVICES; (II) THE INABILITY TO USE ANY OF THE SERVICES TO ACCESS THE EVO INFORMATION; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA; (V) ANY LOSS, DAMAGE, COST, OR EXPENSE SUFFERED OR INCURRED BY THE USE OF, OR BY ANY ERRORS, DELAYS, OR FAILURES OF, ANY OF THE SERVICES OR EVO INFORMATION OR INTERRUPTIONS IN THE TRANSMISSION OR CONFIRMATION OF INDICATIONS OF INTEREST, COMMUNICATIONS, OR OTHER CONTENT OR ANY OTHER CLAIMS, LOSSES, DAMAGES, PENALTIES, SETTLEMENTS, COSTS, AND EXPENSES ARISING OUT OF THE USE OF ANY OF THE SERVICES; (VI) THE NEGLIGENCE OF EVOLUTION; OR (VII) ANY OTHER MATTER RELATING TO ANY OF THE SERVICES OR EVO INFORMATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EVOLUTION AND ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AND AGENTS ARISING IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR EVO INFORMATION, REGARDLESS OF THE FORM OF THE ACTION, WILL NOT EXCEED ONE THOUSAND U.S. DOLLARS ($1,000) AND THIS IS YOUR EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION AND IN THE OTHER PROVISIONS OF THIS AGREEMENT, AND THE ALLOCATION OF RISK HEREIN, ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH EVOLUTION WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
13. Exclusions and Limitations
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT, OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. ONLY THE ABOVE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND EVOLUTION’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. User Credentials
(a) To use and access the Services, you may be required to establish an account. In such case, you must provide accurate, current, and complete information during the registration process and at all other times when you use the Services and must update the information to keep it accurate, current, and complete. Each set of user credentials (“Credentials”) may only be used by the user who registered for such Credentials. You shall not share your Credentials with any other person. You shall not: (i) suggest or use any username that you know or believe may be already used by another person; (ii) use any username in which another person has rights without such person’s authorization; or (iii) suggest or use any username or password that Evolution, in its sole discretion, deems offensive or inappropriate. Evolution reserves the right to deny creation of your account based on Evolution’s inability to verify the authenticity of your registration information. Further, if you provide any information that is untrue, inaccurate, not current, or incomplete, or Evolution has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Evolution has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
(b) You shall be solely responsible for maintaining the confidentiality of your Credentials. You shall keep the Credentials strictly confidential using at least the same degree of care that you use to protect your own confidential information. You shall immediately notify Evolution: (i) if any Credentials assigned to you are lost, stolen, or compromised or (ii) of any known or suspected unauthorized use(s) of your account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your Credentials. Evolution will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by Evolution or a third party arising from someone else using your Credentials, regardless of whether you have notified Evolution of such unauthorized use.
(c) You assume full responsibility for any use, activity, unauthorized use, or misuse of the Services by any person or entity using your Credentials to access the Services.
(d) You shall implement and enforce security procedures reasonably designed to prevent unauthorized access to, use, or misuse of the Services and to maintain the integrity of the Services, including any procedures specified in any technical specifications as may be provided by Evolution from time to time. You shall not knowingly introduce or permit the introduction of any computer viruses, worms, bombs, Trojan horses, trap/back doors, stop codes, protect codes, morphic code, time releasing, tunneling, or other harmful, malicious, or destructive codes or other software routines or hardware components designed to permit unauthorized access or to disable, erase, or otherwise harm the Services. You are solely responsible for ensuring the security of your connections to the Services, and are solely responsible for any losses, damages, or costs that may be incurred as a result of errors made by, the failure of, or delays caused by, the software, or equipment that is used by you to access the Services and Evo Information.
(a) Evolution shall defend, indemnify, and hold you harmless from and against any loss, damage, cost, or expense (including reasonable attorneys’ fees) up to a maximum of one thousand dollars ($1,000) resulting from third party claims alleging that the Services infringe a U.S. patent, copyright, or trademark.
(b) The foregoing indemnity is conditioned on (i) sole control of any such action or settlement negotiations by Evolution, provided that any non-financial terms of any settlement that are intended to be binding on you shall be subject to your prior written approval, which shall not be unreasonably withheld, (ii) prompt written notice by you of such claim, suit, or proceeding, and (iii) your reasonable cooperation and assistance in such defense. In addition, Evolution will not provide the foregoing indemnity for any claim that arises from (1) alterations to the Services made by you, (2) the use of the Services in combination with any software or hardware not supplied or expressly approved in writing in advance by Evolution, (3) use of the Services as prohibited by this Agreement, or (4) your fraud, willful misconduct, gross negligence, or negligence.
(c) If any of the Services, or any part thereof, is found to be, or in the opinion of Evolution may become, the subject of a bona fide claim, suit, or proceeding for infringement of any U.S. patent, copyright, or trademark, or if it is adjudicatively determined that any of the Services infringes any U.S. patent, copyright, or trademark, or if the use of any of the Services is as a result, enjoined, then Evolution may, but shall not be obligated to, at its sole option and expense either: (i) procure for you the right under such patent, copyright, or trademark to use, as appropriate, the Service, (ii) replace the Service with another product, (iii) suitably modify the Service, or (iv) remove the Service. Evolution shall not be liable for any costs or expenses incurred by you without its prior written authorization.
(d) The foregoing provisions of this Section 15 state the entire liability and obligations of Evolution and your exclusive remedy, with respect to any alleged infringement of patents, copyrights, trademarks, or other intellectual property rights by the Services.
16. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of New York State, without reference to its conflict-of-laws principles. To the extent the parties are permitted under this Agreement to initiate litigation in a court, the parties hereto, their successors, and assigns consent to the exclusive jurisdiction of the New York state and federal courts located in Westchester County with respect to any legal proceedings related to this Agreement, and each party waives any objection to the propriety or convenience of venue in such courts.
(a) Third Party Terms. Any open source or third-party code that may be incorporated in EvoMobile is covered by the applicable open source or third-party terms, if any, authorizing use of such code. Such terms may expressly override some of the terms of this Agreement.
(b) Apple App Store Rules. If you access or download EvoMobile through the Apple App Store (the “App Store App”), in addition to and without limiting the other terms of this Agreement, the following terms shall apply to your use of the App:
i. Subject to this Agreement, you may use the App on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions. ii. You acknowledge that these terms are solely between you and Evolution, not Apple, and that Apple has no responsibility for the App Store App or its content; iii. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store App; iv. In the event of any failure of the App Store App to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price, as applicable, for the App Store App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store App; v. You acknowledge that Apple is not responsible for addressing your claims or those of any third party relating to the App Store App or your possession and/or use of the App Store App, including, but not limited to: (1) product liability claims; (2) any claim that the App Store App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation; vi. You acknowledge that, in the event of any third-party claim that the App Store App or your possession and use of that App Store App infringes that third party’s intellectual property rights, Evolution, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such claim to the extent required by these terms; and vii. You and Evolution acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these terms as it relates to your license of the App Store App, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms as it relates to your license of the App Store App against you, as a third-party beneficiary thereof.
(c) Google Play’s Rules. If you access or download EvoMobile through the Google Play Store (the “Google Play App”), in addition to and without limiting the other terms of this Agreement, the following terms shall apply to your use of the App: i. You acknowledge that this Agreement is between you and Evolution only, and not Alphabet, Google, or any of their affiliates (“Google”); ii. Your use of the Google Play App must comply with Google’s then-current Google Play Store Terms of Service; iii. Google is only a provider of the Google Play Store where you obtained the Google Play App; iv. Evolution, and not Google, is solely responsible for the Google Play App; v. Google has no obligation or liability to you with respect to Google Play App; and vi. You acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to the Google Play App.
18. Arbitration and Class Action Waiver
(a) PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH EVOLUTION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION WILL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”
(b) Any dispute relating in any way to your visit to, or use of, any of the Services (“Claims”) will be exclusively submitted to confidential and binding arbitration in Westchester County, New York, including based on contract, tort (including intentional tort), fraud, agency, your or Evolution’s negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders, or otherwise; and Claims made independently or with other claims; provided, however, that to the extent that you have in any manner violated or threatened to violate Evolution’s intellectual property rights, Evolution may seek injunctive or other appropriate relief in any state or federal court in the State of New York. The party filing arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing arbitration. Any arbitration hearing that you attend will be held at a place chosen by the American Arbitration Association in the same city as the U.S. District Court closest to Evolution’s headquarters address, or at some other place to which you and Evolution agree in writing, and the arbitrator shall apply New York law consistent with the Federal Arbitration Act. YOU SHALL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS OR TO ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. You may obtain copies of the current rules, forms, and instructions for initiating arbitration by contacting the American Arbitration Association using the contact information found at www.adr.org.
(c) A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years’ experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with this Agreement, in which case this Agreement will prevail. Those procedures and rules may limit the discovery available to you or Evolution. The arbitrator will take reasonable steps to protect your account information and other confidential information if requested to do so by you or Evolution. Each party to the arbitration will bear the expense of that party’s attorneys, experts, witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator’s award is final and binding on the parties.
(d) YOU ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND THEREFORE YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(e) You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of any of the Services, any Evo Information, or this Agreement must be filed by you within one (1) year of the date such claim or cause of action arose or it is and shall be forever barred.
(f) Evolution will not choose to arbitrate any Claim you bring in small claims court. However, if such a Claim is determined by the court to be outside its jurisdiction, the parties agree that the dispute shall then be submitted to arbitration.
(g) You may opt out of this Arbitration Agreement. If you do so, neither you nor Evolution can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Evolution in writing no later than thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your account(s) (if you have any), and a clear statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to firstname.lastname@example.org. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with Evolution or may enter into in the future with Evolution.
(h) This Arbitration Agreement will survive any termination of your relationship with Evolution.
19. Entire Agreement
This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter hereof and supersedes all other communications or representations or agreements (whether oral, written, click-through, or otherwise) relating thereto (but excluding any other written agreement between Evolution and you), and shall inure to the benefit of, and be enforceable against, any and all of such parties’ successors and permitted assigns.
In no event shall you assign any of your rights or obligations hereunder without the prior written consent of Evolution. Any attempt to assign or purported assignment of this Agreement by you shall be void ab initio.
(a) Evolution’s failure to require performance of any provision of this Agreement in no manner shall affect its right at a later time to enforce the same.
(b) No waiver by Evolution of any breach of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any other such breach, or a waiver of any other breach of this Agreement.
If any provision of this Agreement shall to any extent be held invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement shall in no way be affected or impaired thereby and each such provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. In such case, this Agreement shall be reformed to the minimum extent necessary to correct any invalidity, illegality, or unenforceability, while preserving to the maximum extent the rights and commercial expectations of the parties hereto, as expressed herein.
Both parties have had full opportunity to review the terms of this Agreement and neither party intends that this Agreement be construed for or against either party because of that party’s role in drafting this Agreement.
24. Relationship Between the Parties
Nothing in this Agreement creates a partnership, joint venture, or agency relationship between Evolution and you.
25. Communications Through the Services
You acknowledge and agree that Evolution may monitor, review, record, and retain any communications transmitted through the Services at any time and from time to time, including emails, instant messages, and telephone conversations. This includes, but is not limited to, the monitoring, review, recording, and retention (as applicable) of communications initiated or conducted through the Services, including the “Contact My Evolution Markets Broker” function of the App. You agree that no further notice of such recording is required and that any such monitoring or recording may be submitted into evidence in any suit, trial, hearing, arbitration, or other proceeding.
The section headings in this Agreement are for convenience only and have no legal or contractual effect.
Last updated: April 26, 2021