Loyalty Program Terms
These Terms of Service ("Terms") govern the use and access of the EVO ("EVO", "we" "our" or "us") loyalty rewards and customer engagement program made available through thanx.com/merchant and/or order.thanx.com/merchant (collectively, the "Site") and as an application for mobile devices (our "App") (collectively, the "Services"). The Services are owned and operated on our behalf by Thanx Inc. ("Thanx"), a third-party service provider of Merchant. Thanx is a third-party beneficiary of these Terms and, when you agree to these Terms, both Merchant and Thanx will have the right to enforce these Terms against you, separately or jointly.
By accessing or using the Services, you agree to be bound by these Terms. Certain Reward Opportunities (defined below) that are part of our Loyalty Program may be governed by additional terms and conditions which are incorporated herein by reference. If there is a conflict between these Terms and the terms and conditions for a particular Reward Opportunity, these Terms will apply.
In order to participate in our Loyalty Program and to be eligible to redeem Rewards, you must:
- Be an individual person at least 18 years of age;
- Register for an account;
- Possess the authority and capacity to create a binding legal obligation in your state and/or country of residence; and
- Not be a person barred from participating in the Loyalty Program under the laws of the United States or other applicable jurisdiction.
The Loyalty Program is subject to all applicable laws and regulations and is VOID WHERE PROHIBITED.
Creating an Account
In order to participate in our Loyalty Program, you will have to create an account.
You may only create one account and it is non-transferable to a third party. When you create an account, you agree to provide accurate, current and complete information about yourself. You are responsible for safeguarding your account and are responsible for activities that occur under your account. Notify us immediately if your account has been compromised.
Participating in our Loyalty Program
Generally. Our Loyalty Program provides a personalized reward experience for eligible consumers. The means by which you can earn promotional rewards offered by us may include (i) a digital "punch card" experience, whereby you purchase a specified number of qualifying products or services or participate in specified activities (each a "Qualifying Action") pursuant to the Reward Opportunity Terms ; (ii) opportunities to earn points that may be redeemed for rewards ("Points"); and (iii) other similar experiences where eligible spending or activity will earn you rewards (collectively, "Rewards"). We may present you with opportunities to earn Rewards by sending offers via email, mobile device notifications and other channels ("Reward Opportunities"). At any point in time you can opt-out of receiving additional information regarding Reward Opportunities through your account settings within the Services or as otherwise set forth in these Terms.
Qualifying Actions will help you progress toward earning rewards from us, ("Reward Progress") and reaching the designated threshold (a "Reward Threshold") indicated in the applicable Reward Opportunity Terms. When you reach a Reward Threshold, you will have access to the Rewards that we offer which can be redeemed as set forth in the applicable Reward Opportunities.
Important Notes About Your Cards and Transactions
Not all payment cards are eligible for use in connection with our Loyalty Program. For example, corporate purchasing cards, Health Savings Account (HSA), Flexible Spending Account (FSA) cards, government-administered prepaid cards (including EBT cards), insurance prepaid cards, Visa Buxx and payment cards that are not network-branded or otherwise not processed through a payment network are not eligible.
If you use a Personal Identification Number (PIN) when paying for your purchases with your Linked Card, the transaction will not count toward your ability to earn Rewards.
Reward Opportunity Terms
At the time we make a Reward Opportunity available to you, we will provide Reward Opportunity specific terms ("Reward Opportunity Terms") which may include details related to (i) what actions may be required to earn Rewards; (ii) what Rewards are available to you if you complete the actions required by the Reward Opportunity; (iii) expiration details relating to either Reward Progress (e.g., Points), or ability to redeem Rewards, as applicable; and (iv) how you can redeem your Rewards.
Reward Opportunity Terms for our current Reward Opportunities may be viewable on our web or mobile interface, including where you locate your Rewards.
General Terms of Reward Offerings
- In General. Descriptions of the offers advertised on the Services are provided by EVO or other referenced third parties. While we partner with Thanx to enable us to deliver the Loyalty Program to you, Thanx does not provide any Reward Opportunities or Rewards to you, and all Rewards are provided by and redeemable only with EVO. Thanx is not responsible for the Rewards or the terms under which Rewards are made available. For avoidance of doubt, Thanx is not responsible for any claims associated with the description of the Reward Opportunities, communications to you about Reward Opportunities or the Loyalty Program, Rewards or products or services offered by EVO (collectively "EVO Offerings"). Pricing relating to certain EVO Offerings and other available programs on the Services may change at any time in EVO's sole discretion without notice.
- Reward Progress (e.g., your Points or "punch card"):
- is not equivalent to cash, does not represent a claim on any cash or other property, and is not redeemable for cash. Your Reward Progress may be forfeited if you violate these Terms or any additional terms or conditions applicable to Reward Progress for a specific Reward Opportunity (e.g. if a Qualifying Action must occur within a certain timeframe). Any such terms will be communicated with the Reward Opportunity, as applicable.
- is not transferrable to any third party
- cannot be redeemed or used other than with EVO, including EVO's affiliates to the extent expressly permitted.
EVO does not currently offer point based programs.
Rewards expiration will vary. You should review the Reward Opportunity Terms presented to you. Rewards will expire pursuant to the Reward Opportunity Terms or as otherwise set forth in the section of these Terms entitled Termination, Account Cancellation or Suspension. You can view and track your balance and available Rewards through your account.
- Verifying Your Account. You are responsible for ensuring your Reward Progress earned from Qualifying Actions are properly credited to your account. It may take up to 7 days after a Qualifying Action is made for your Reward Progress or Reward to be viewable via your account. You should email firstname.lastname@example.org it has been more than 7 days and the Reward Progress has not been applied to your account. You may be asked to provide additional, supporting information, as required, to facilitate a request to update your Reward Progress. Requests received after 21 days of a Qualifying Action may not be eligible to be credited to your account. We are not responsible for investigating any Reward or Reward Progress request if you have not notified us within 21 days of the Qualifying Action. Your Rewards can also be reversed if any of the items you purchased in connection with a Qualifying Action are subsequently returned. We may also, at our discretion, delay any Reward or Reward Progress in order to validate or verify a Qualifying Action. Any attempt to earn Rewards through the purchase and return of merchandise in connection with a Qualifying Action will be considered possible grounds for termination of your account.
You acknowledge that:
- Your accumulation of, and the redemption of, Rewards is subject to your compliance with these Terms (including any terms and conditions provided when you are presented with a Reward Opportunity);
- We reserve the right to delay, withhold or invalidate accrual or redemption of Rewards in the event of technical, printing, production, distribution, or similar errors, potential fraudulent activity, or similar issues. Specifically, we can invalidate Rewards from your account with notice if we determine in our sole discretion that such Rewards were improperly credited to your account;
- The Reward Opportunities, Reward Progress, and Rewards are intended for personal use only. Commercial use is prohibited.
- Your use of the Services and your activities in connection with the Services must be lawful and in compliance with these Terms and you may not in any way inhibit any other user from using the Services;
- Neither EVO nor our service providers are responsible or liable for any unredeemed, unused or lost Rewards or Reward Opportunities;
- Reward Progress and Rewards are not gift cards or gift certificates and do not constitute property, do not entitle you to a vested right or interest and have no cash value. Therefore, Points and Rewards are not redeemable for cash, transferable, salable or assignable for any reason. No cash will be exchanged for the unused portion of any member's Rewards;
- Unless otherwise expressly permitted, your redemption of Rewards in connection with the Loyalty Program cannot be combined with any other offers or discounts;
- EVO reserves the right to change, modify, discontinue or cancel the Loyalty Program or any Reward Opportunity, at any time and in our sole discretion, without notice to you; and
- You are solely responsible for use of the Services and your Rewards. You may only have one account that is personal to you.
Your only remedy for a failure of a Reward is to receive the equivalent Reward by contacting email@example.com.
RELEASE OF LIABILITY
You acknowledge and agree that our service providers, including Thanx, are not a party to any disputes regarding our Loyalty Program.
You hereby release Thanx, and Thanx's respective affiliates, officers, directors, employees, agents, successors, assigns, and service providers (including AXP and any other payment card networks and payment processors) from any and all claims, demands, liabilities, losses and damages of every kind and nature arising out of or in any way connected with your use of the Services and any disputes between you and EVO. In addition, you expressly waive the provisions of California Civil Code §1542, which says:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF NOT KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
In short, this means that you release Thanx and other service providers involved in providing services to Thanx from any and all claims you may have arising out of disputes you may have with us, or as a result of your use of the Services. As used herein "AXP" means American Express Travel Related Services Company, Inc. AXP provides certain AXP crediting services to Thanx and AXP is a third party beneficiary of the foregoing release.
Access via the Mobile App
Subject to your compliance with these Terms, we grant you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Furthermore, with respect to any Apps accessed through or downloaded (as applicable) from the Apple App Store (an "App Store Sourced Application"), you will only use the App Store Sourced Application: (a) on an Apple-branded product that runs the iOS (Apple's proprietary operating system); and (b) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Services accessed through or downloaded from the Google Play store (a "Google Play Sourced Application"), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
Rights you Grant to Us.
By making any content available through the Service you hereby grant to us a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your content in connection with operating and providing the Service to you and other account holders. You are solely responsible for all your content. You represent and warrant that you own all your content or you have all the rights that are necessary to grant us the license rights in your content under these Terms. You also represent and warrant that neither your content, nor your use and provision of your content to be made available through the Service, nor any use of your on or through the Services will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Alerts and Notifications
As part of the Services we provide, you may (if enabled) receive push notifications, alerts, emails, or other types of messages directly sent to you outside or inside the App ("Push Messages"). You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services (with the exception of service announcements and administrative messages). Please be aware that third party messaging fees may occur for some types of Push Messages depending on the service plan you have with your wireless carrier.
The Services may be used and accessed for lawful purposes only. You agree that you will not do any of the following while using or accessing the Services: (1) access or tamper with the Services, our computer systems, or the technical delivery systems of our providers; (2) gather and use information, such as user names, real names, email addresses or transmit any unsolicited advertising, junk mail, spam or other form of solicitation; (3) use the Services for any commercial purpose or for the benefit of any third party or in any manner not authorized by these Terms; (4) violate any applicable law or regulation; (5) use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services or any portion of the Services, without the our permission; or (6) encourage or enable any other individual to do any of the foregoing.
Except as expressly permitted in these Terms, you may not: (i) copy, modify adapt, or create derivative works of the Services; (ii) distribute, transfer, sublicense, sell, lease, lend, rent or otherwise exploit the Services; (iii) reverse engineer, decompile or disassemble the Services; or (iv) make the functionality of the Services available to multiple users through any means. All rights in and to the Services not expressly granted to you under these Terms are reserved.
Additionally, the following activities are prohibited and constitute a violation of these Terms:
- Providing fraudulent or false information;
- Accessing the personal information of third parties;
- Tampering with security we implement to protect the Services;
- Soliciting users for commercial purposes or otherwise or using information made available via the Services for commercial purposes;
- Reselling Opportunities;
- Attempting to use Opportunities more than once;
- Intentionally overwhelming our servers or those of our service providers with excessive demand; and
- Adding any hyperlinks without our written consent.
- Registering or otherwise using an invalid, fake, fraudulent or unauthorized payment card.
We reserve the right to suspend the Services, investigate and/or prosecute violations of any of the above and/or involve and cooperate with law enforcement authorities in prosecuting users who we reasonably believe, in our sole discretion, has violated these Terms.
Termination, Account Cancellation or Suspension
You may cancel your account at any time through the Services or by sending an email to firstname.lastname@example.org
Our Loyalty Program will continue until terminated at our sole discretion. We may terminate, modify, or suspend the Loyalty Program as well as your access to and use of the Services and your account, at our sole discretion, at any time for any reason. Reasons for such a termination, modification, or suspension include without limitation (1) you have violated or breached any provision of these Terms (or have acted in a manner which shows that you do not intend to, or are unable to comply with the provisions of these Terms), (2) we believe it is required to do so by law (for example, where the provision of the Services or Loyalty Program to you is, or becomes, unlawful); or (3) for any other reason in our discretion upon our provision of notice to you. If your account is terminated for cause pursuant to this Section, you may not later re-enroll in the Service.
Accounts that remain inactive for more than 6 months may be subject to automatic cancellation. Once your account is cancelled (whether by you or us), you will no longer be able to access your account and you will lose all of your accumulated Rewards and Reward Progress, and you understand and acknowledge that we will have no further obligation to provide the Services to you or access to any of your account information. We will not be liable to you or to any third party for the suspension or termination of the Loyalty Program, your account, or your access to or use of the Services. Upon any termination, discontinuation or cancellation of the Loyalty Program, your account, or your access to or use of the Services, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
The Services are protected by copyright, trademark, and other laws of the United States and foreign countries. EVO, Thanx and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. Any feedback, comments and suggestions you may provide for improvements to the Services ("Feedback") is given entirely voluntary and, even if designated as confidential, will not create any confidentiality obligation and we and our service providers will be free to use, disclose, reproduce, license, distribute, and otherwise exploit such Feedback as we see fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
Links to Third-Party Web Sites
The Services may contain links to other third party sites or resources. These links are provided as a convenience to you but not as an endorsement of the companies or the contents of these sites or their products and services. We are not responsible for the content of such sites or resources. If you decide to access any of the third-party web sites linked to the Services, you do this entirely at your own risk.
Exclusive Deals - Merchant Product Purchases
From time-to-time, EVO may offer goods or services ("Merchant Products") for purchase exclusively through the Services (such offers are referred to below as "Exclusive Deals"). The following terms, as well as any terms and conditions referenced by EVO ("Merchant Terms"), apply to any Exclusive Deals.
When you purchase a Merchant Product, you are purchasing such Merchant Products from Merchant – not Thanx. Thanx is not a bank or money transmitter and does not process payments for Merchant Products sold on the Thanx Platform. When you purchase Merchant Products via the Services, you will receive a digital code (each, a "Redemption Code") which, subject to the Merchant Terms, is redeemable for Merchant Products as set forth in the Merchant Terms. Redemption Codes may not be redeemed or exchanged for cash or merged with Thanx or other Merchant offers or Rewards.
If you did not intend to purchase Merchant Products or want to cancel an order, you must contact the Merchant and/or Stripe, the applicable third party payment processor. Any decision to accept returns of, or issue refunds for, Merchant Products will be made by the Merchant and/or Stripe.
Thanx reserves the right to terminate the Exclusive Deals program or any specific Exclusive Deal at any time. Thanx also reserves the right to cancel, revoke or otherwise prevent the issuance of Redemption Codes in cases of mistake and in any suspected case of unauthorized or fraudulent use. Thanx is not required to facilitate transfers of Merchant Products or Redemption Codes from you to other individuals.
Exclusive Deals Disclaimers.
Thanx provides a platform for the purchase of goods and services sold by Thanx Merchants, but we are not responsible for the goods or services sold by any Merchant through the Services.
Neither Thanx nor Stripe will have any liability to you in connection with your purchase of Merchant Products or redemption of Redemption Codes, including, without limitation, in connection with:
- any goods or services associated with an Exclusive Deal,
- honoring Redemption Codes, delivering Merchant Products, or fulfilling a Thanx Exclusive Deal,
- any action or inaction by Stripe or the Merchant whose goods or services are the subject of an Exclusive Deal.
- the failure of Thanx or Stripe to provide any notifications or engage in any monitoring of Exclusive Deals,
- to honor or refund, or to provide any updates about claimed or redeemed, Exclusive Deals.
This means that any liability regarding a Exclusive Deal lies exclusively with EVO.
You may be eligible to redeem Rewards for statement credits to eligible Linked Cards ("Statement Credits") in connection with some Merchant-specific deals delivered through your account (each, an "Offer"). You will earn Statement Credits for Qualifying Transactions, which are defined as transactions that satisfy all requirements specified in the terms of the individual Merchant Offers ("Offer Terms") and these Terms. The amount of Statement Credits earned on Qualifying Transactions as well as any additional terms and conditions of the Offer will be presented in the Offer Terms.
Statement Credits will not appear or be reflected on your transaction receipt from the Merchant at the time of purchase, and will instead be reflected on your periodic Linked Card statement. Subject to eligibility verification and settlement of the Qualifying Transaction, Statement Credits will typically appear on your Linked Card statement approximately 3-5 days after the final Qualifying Transaction, but may be subject to delays. Statement Credits cannot be processed if your Linked Card number expires or changes while Statement Credit is pending and not settled, or your Linked Card account is not open or in good standing. You may not receive the value associated with the Reward if the applicable issuer does not post the Statement Credit. Not all transactions made with your Linked Card (including, but not limited to, PIN based transactions, payment through a third-party digital wallet or payment app) can be monitored for eligibility for earned Rewards. Do not use a PIN when making purchases if you want the transaction to be eligible as a Qualifying Transaction to earn Statement Credits. If the transaction cannot be verified for eligibility with the Linked Card issuer, Thanx may be unable to issue a Statement Credit on behalf of Merchant. Thanx, the applicable card network and your issuer will have no responsibility or liability for the failure of a Statement Credit to be posted. None of Thanx, Merchant, or the applicable card network is responsible for any finance or other charge, or impact on any Reward, feature, or term of your account resulting from the Statement Credit; your Linked Card issuer is responsible for all such charges or impacts. Redemption of Statement Credits is further subject to the terms and conditions of your Linked Card issuer.
In no event shall Thanx or any applicable card network constitute or be considered as maintaining any type of financial obligation or deposit or other asset account, or holding funds or other value for you for distribution to you. Any pending Statement Credits and any associated dollar values represent offer fulfillment amounts in process owed by the Merchant, and not your funds or balances maintained or held by any applicable card network or Thanx.
You agree to indemnify, defend and hold EVO, its licensors, its current or future affiliated companies, its service providers (including payment card networks, payment processors) and Thanx, its licensors, and any of its current or future affiliated companies and its service providers (including payment card networks and payment processors) and each of their respective officers, directors, employees, agents, successors and assigns harmless from and against all claims, liabilities, losses, expenses, damages, and costs, including but not limited to reasonable attorneys' fees, resulting from (1) any violation or breach of these Terms by you, (2) any activity related to access to or use of your account by you or any other person accessing or using your account, or (3) any activity related to your redemption of Rewards or Opportunities and participation in the Loyalty Program.
THE SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVO AND ITS SERVICE PROVIDERS (INCLUDING THANX, PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MERCHANT AND ITS SERVICE PROVIDERS (INCLUDING THANX, PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, TIMELY, SECURE OR MEET YOUR REQUIREMENTS OR EXPECTATIONS. THANX IS NOT RESPONSIBLE, OR LIABLE TO MERCHANT FOR, ANY CLAIMS BETWEEN MERCHANT AND AN APPLICABLE END USER RELATED TO SUCH END USER'S USE OF THE SERVICES.
Limitation of Liability
IF YOU PROVE THAT MERCHANT HAS IMPROPERLY DENIED YOU ANY REWARD ("REWARD DISPUTE") AND MERCHANT PROVIDES YOU WITH SUCH REWARD OR A COMPARABLE SUBSTITUTE, THEN SUCH REWARD BE YOUR SOLE AND EXCLUSIVE REMEDY IN CONNECTION WITH THE REWARD DISPUTE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EVO OR OUR SERVICE PROVIDERS (INCLUDING THANX, PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, LOSS OF DATA, FAILURE OF DELIVERY OF GOODS, FAILURE TO MEET ANY DUTY, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO YOUR PARTICIPATION IN THE LOYALTY PROGRAM OR THE USE OF OR INABILITY TO USE THE SERVICES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MERCHANT AND OUR SERVICE PROVIDERS (INCLUDING THANX, PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL NOT EXCEED ONE HUNDRED ($100.00) DOLLARS.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
Neither EVO nor its service providers (including Thanx, payment card networks or payment processors) will be liable or responsible for any delays in providing the Services as a result of any event beyond its reasonable control, including without limitation, adverse weather conditions, internet outage or interruption of service, denial of service attacks, telecommunications or power outage, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, government-ordered closures, pandemic, epidemic, embargoes, terrorism, natural disaster, war or acts of God.
Accessing and Downloading the Application from iTunes.
You acknowledge and agree that the availability of the Apps, and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (the "App Store"). The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) these Terms are concluded between you and EVO only, and not Apple, and (ii) EVO, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service, and you agree to pay all fees (if any) charged by the App Store in connection with EVO Services, including the Application.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application, and EVO, not the App Store, is solely responsible for the EVO Services, the content thereof, and warranty therefor.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between EVO and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of EVO.
- You and EVO acknowledge that, as between EVO and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and EVO acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between EVO and Apple, EVO, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- You and EVO acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
No Agency. No agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by this Agreement. Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. Modifications. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Merchant. Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to or application of conflict of law principles. The Parties consent to the jurisdiction of the State of California and venue in the County of Santa Clara, with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof. Assignment. You shall not assign any of the rights or obligations under this Agreement without the prior written consent of Merchant. Successors and Assigns. These Terms are binding on and inures to the benefit of the parties and their respective successors and permitted assigns. No Waiver. No failure or delay by a party exercising any right, power or privilege under this Agreement will operate as a waiver thereof. Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section. Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained EVO Services, and any other applicable laws. In particular, but without limitation, the EVO Services may not be exported or re-exported (a) into any United States 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's Denied Person's List or Entity List. By using the EVO Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the EVO Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by EVO are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer EVO products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations. Entire Agreement. These Terms, including all EVO terms additionally offered in connection with Rewards Opportunities, Merchant Products, and other Merchant Terms, comprise the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, between the Parties regarding the subject matter contained herein.
CALIFORNIA CONSUMER COMPLAINTS. If you are a California resident, in accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Affairs of the California Department of Consumer Affairs by contacting them in writing at: 1625 North Market Blvd., Suite N112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
DMCA - NOTICE OF CLAIMED COPYRIGHT INFRINGEMENT.
In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
If you have a good faith belief that your copyright has been infringed, you can download and submit a Notice of Claimed Infringement to Thanx's Designated Agent by email at email@example.com. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
If you have any questions about these Terms, please contact us at firstname.lastname@example.org.
Last Updated: July 4, 2022