These Terms of Service along with any other terms and policies referenced herein, and are incorporated herein by reference and form an integral part hereof, as amended from time to time (the “Agreement”) constitute a legally binding agreement as of the Effective Date (as defined below), governing your access to, and the use of www.Credevolv.com, the CE 360 platform, and any related website owned or operated by CredEvolv Services LLC (the “Sites”), and the use of, and registration with, the CredEvolv Service (defined below) through the Sites, a mobile application, or through any other means. This Agreement is between CredEvolv Services LLC, a Delaware public benefit limited liability company (“CredEvolv”, “us”, “we” or “our”) and you, either individually, and/or on behalf of your employer or any other entity which you represent (“you” or “your”) (CredEvolv and you, individually a “Party” and collectively the “Parties”) may use its affiliates and third-party service providers to provide services to you. You hereby represent that (i) you have full legal authority to bind yourself and/or your employer or other entity that you represent or with which you are affiliated to the terms of this Agreement; and (ii) after reading and understanding this Agreement, you agree to the terms hereof on behalf of yourself and/or your employer or other entity that you represent or with which you are affiliated.
THESE TERMS ARE BINDING, AND YOU AFFIRM AND SIGNIFY YOUR CONSENT TO THESE TERMS, BY EITHER: (I) CLICKING ON A BUTTON OR CHECKING A CHECKBOX FOR THE ACCEPTANCE OF THESE TERMS; OR (II) REGISTERING WITH, USING, OR ACCESSING THE CREDEVOLV SERVICE, SITES OR ANY CREDEVOLV MOBILE APPLICATION, WHICHEVER IS EARLIER.
IN THE EVENT THAT CREDEVOLV AND ANY COMPANY (DEFINED BELOW) EXECUTE A CONTRACT, SEPARATE AND ASIDE FROM THIS AGREEMENT, ANY OF THE TERMS OF THE EXECUTED CONTRACT THAT CONFLICT WITH THE TERMS CONTAINED IN THIS AGREEMENT SHALL SUPERSEDE THE CONFLICTING TERMS IN THIS AGREEMENT AND SHALL GOVERN THE TERMS OF RELATIONSHIP BETWEEN CREDEVOLV AND SUCH COMPANY.
a. “Authorized User” means any natural person or Company for whom login credentials are established to access, utilize, and/or interact with the CredEvolv Service subject to such their agreement to be bound by the terms of this Agreement.
b. “Company” shall refer to any corporate entity and shall be deemed to include all of Company’s agents, employees, officers, personnel, subsidiaries, parents, contractors, affiliates, predecessors, successors, assigns, heirs, attorneys, and representatives, and any other person or entity performing services on behalf of the Company or under common control or ownership with Company.
c. “User Data” means registration information and other information relating to Authorized Users, and information that those Authorized users submit, transmit, or otherwise provide to or via the CredEvolv Service. “Anonymous Information” (as defined below) shall not be considered “User Data”.
d. “Code” means front end code, back end code, the CredEvolv user interface, display, and platform. This includes, but is not limited to, the layout, color scheme, HTML pages, source code, object code, algorithms, specifications, or architecture, and any other component that allows Company to access, interact, and/or utilize the CredEvolv Service or allows the CredEvolv service to run and/or function properly.
e. “CredEvolv Materials” means any documentation, user guides, or other materials provided by CredEvolv to Company or Authorized Users, in any medium, in connection with the use of the CredEvolv Service.
f. “CredEvolv Service” means the CE 360 platform, interface, and software, including connectivity thereto, developed and owned by CredEvolv to assist with and facilitate customer and data management, and incorporates any CredEvolv Materials, Sites, or any other interface, database, tools, systems, software, or mechanisms developed, operated, and/or maintained by CredEvolv (and its third-party service providers) and that are subscribed to through a CredEvolv branded or controlled website or CredEvolv partner websites.
g. “Intellectual Property” means, without limitation, any and all computer software, Code, designs, design features, text graphics, button icons, images, audio clips including the collection, arrangement, and assembly thereof, trademarks, logos, service marks, schematics, specifications, techniques, models, processes, discoveries, inventions, original works of authorship, know-how, concepts, ideas and the like, in whatever form, whether developed or in the process of development, whether individually or jointly with any other person or persons and whether or not patentable, registrable under copyright or trademark laws, or otherwise protected or protectable under similar laws, conceived, made, invented, developed, improved or reduced to practice by or at the behest of CredEvolv, together with all physical embodiments and manifestations thereof and all patent rights, copyrights, trademarks (or applications for same) and similar protections therein.
2. Purpose, Usage, and Restrictions.
a. Purpose. For the purposes of this Agreement, CredEvolv has developed the CredEvolv Service to assist financial institutions and non-profit credit counseling agencies with the organization, cataloguing, and tracking of data and to efficiently provide consumers with tools, education and resources to achieve financial wellness through homeownership.
b. Access and Use. Subject to and conditioned upon Authorized User’s compliance with the terms of this Agreement, CredEvolv hereby grants Authorized Users a non-exclusive, non-transferable, non-sublicensable, revocable license to access and utilize the CredEvolv Service. Any and all information obtained via or relating to such access to any aspect of the CredEvolv Service shall be considered CredEvolv’s Proprietary Information (as defined herein) and shall be subject to the obligations set forth in Section 6 entitled “Proprietary Information” contained herein. Authorized Users shall not download, install, or access any software or application on CredEvolv’s systems without CredEvolv’s written permission. In addition, any and all access to any component of the CredEvolv Service or systems shall be subject to the following:
i. Use of the CredEvolv Service shall be limited to Authorized Users, only, and may not be on behalf of third parties unless a separate agreement with CredEvolv permits such use;
ii. Except as expressly permitted in this Agreement, you may not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, display, host, outsource, or otherwise commercially exploit or make the CredEvolv Service or the CredEvolv Materials available to any third party;
iii. You shall not use the CredEvolv Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights granted by statute or otherwise;
iv. You shall not use the CredEvolv Service to store or transmit any malicious code, data, program, routine, device or other internal component (e.g., computer worm, computer time bomb, software lock, malicious logic, Trojan horse, bug, error, defect or trap door, or similar component), which could damage, destroy, delete, disable, deactivate, alter or disrupt any computer program, firmware or hardware or which could, in any manner, reveal, damage, delete, disable, deactivate, destroy, alter or disrupt any data or other information in any manner that is capable of deleting, disabling, deactivating, interfering with, or otherwise harming hardware, data, or computer programs or codes, or that is capable of providing unauthorized access or produce unauthorized modifications;
v. You may not, and may not facilitate or allow any third party to modify, make derivative works of, alter, manipulate, disassemble, reverse compile, or reverse engineer any part of the CredEvolv Service, Intellectual Property, or CredEvolv Materials, or access or use the CredEvolv Service, Intellectual Property or CredEvolv Materials in order to build a similar or competitive product or service, to build a product or service that uses or incorporates similar ideas, features, functions, or graphics as the CredEvolv Service, to determine whether the CredEvolv Service is within the scope of a patent or other intellectual property protections, or for any other purpose whatsoever that is not specifically set forth in this Agreement. Additionally, you shall not reproduce, alter, frame or mirror any part of the CredEvolv Service without the express written permission of CredEvolv;
vi. Your use of the CredEvolv shall conform with the restrictions set forth herein;
vii. Your use of the CredEvolv Service must not cause undue strain or stress on the CredEvolv network through non-standard use;
viii. The CredEvolv Service and systems shall not be used for any purpose other than its legitimate intended purposes; and
ix. You shall not attempt to break, bypass, or circumvent CredEvolv’s security systems, or attempt to obtain access to any hardware, programs, software, or data beyond the scope of the access granted, in writing, by CredEvolv.
Company shall be liable for the actions of its Authorized Users and shall take appropriate measures to ensure that its Authorized Users operate within the parameters set forth herein.
c. Reservation of Rights. Nothing in this Agreement grants you any right, title, or interest in or to the CredEvolv Service, Intellectual Property, or CredEvolv Materials (including application development, business and technical methodologies, and implementation and business processes, used to develop or provide the CredEvolv Service or CredEvolv Materials), know-how, or improvements associated with any of the foregoing and all tradenames, trademarks, service marks, copyrights, or patents embodied or used in connection with the integration or services provided hereunder, or any data, information, or material developed by or at the behest of CredEvolv), whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in any of the foregoing that CredEvolv had prior to the execution of this Agreement or subsequent improvements or updates thereupon, or new materials, data, or information that were developed after the execution of this Agreement shall remain with CredEvolv. You may not copy, modify, or otherwise use the Intellectual Property of CredEvolv without CredEvolv’s express written consent. You are expressly prohibited from using any Code for any purpose outside of the intended design and implementation of its authorized use of the CredEvolv Service. Any replication or use of any aspect of the Intellectual Property, component of the CredEvolv Service, or other CredEvolv application for any purpose, whatsoever, including to compete with CredEvolv’s solutions or products, is strictly prohibited. You will not dispute for any reason, whatsoever, during the term of this Agreement or thereafter, the validity, ownership or enforceability of any of the Intellectual Property of CredEvolv, nor attempt to acquire or damage the value of the goodwill associated with that Intellectual Property, whether registered or not. No rights are granted to you except those expressly set forth herein.
d. User Data. User Data submitted by you is and will remain your property. However, you grant to CredEvolv a non-exclusive, perpetual, royalty-free license and right to host, use, copy, transmit, distribute, and display your User Data in connection with CredEvolv’s operation of the CredEvolv Service. You, not CredEvolv, has sole responsibility for the accuracy, integrity, and reliability of your User Data, and CredEvolv will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of your User Data and you hereby waive any claims arising therefrom. You further hereby represent and warrant that you have obtained the necessary permissions and authorizations required to possess, submit, transmit all data that you provide to CredEvolv via the CredEvolv Service, or otherwise. For the avoidance of doubt, we collect information which does not enable identification of an individual, such as aggregated and analytics information (“Anonymous Information”) relating to your use of the CredEvolv Service and/or Sites, and disclose it for the purpose of providing, improving and publicizing our products and services, including the Sites and CredEvolv Service, and for other business purposes. You hereby agree that any reports, extrapolations, models, projections, derivatives, aggregations, compilations, formulations, algorithms, statistics, developments, or any other information that CredEvolv generates based upon any such data, in whole or in part, shall be deemed to be CredEvolv’s Intellectual Property.
e. Provision of Services. CredEvolv will use commercially reasonable efforts to make the CredEvolv Services available pursuant to the terms of this Agreement, and endeavor to provide you with uninterrupted access to the CredEvolv Service. However, you hereby agree that CredEvolv shall not have any liability to you for any service outages or service interruption of the CredEvolv Service for any reason.
f. Modifications. You understand that CredEvolv reserves the right, in its sole discretion, to make any changes or modifications to its own platform, technology, any aspect of the CredEvolv Services or CredEvolv Materials, or other property, aspect, or feature that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of CredEvolv Services; (ii) the competitive strength of or market for the CredEvolv Services; (iii) the cost efficiency or performance; or (iv) security features or address security concerns; (b) to comply with applicable law, without prior notice to the Company; or (c) for any other reason that CredEvolv deems reasonably necessary.
3. Fees (This Section is only applicable if you have agreed to remit fees to CredEvolv as a condition to accessing the CredEvolv Service).
a. Fees and Payment. You shall be responsible for remitting all fees in accordance with the terms of the fee agreement by and between you and CredEvolv. Fees are based on the amounts agreed upon by the Parties, regardless of actual usage, and payment obligations are non-cancelable and Fees paid are non-refundable. You agree to provide CredEvolv with complete and accurate billing and contact information. Where you elect to make payment via credit card, you authorizes CredEvolv to bill such credit card (a) at the time that you execute an agreement that calls for fees, (b) for any billing frequency otherwise established, and (c) at the time of any renewal, for the amount charged, plus any applicable sales taxes. If CredEvolv, in its sole discretion, permits you to make payment using a method other than a credit card, CredEvolv may invoice you in accordance with the terms set forth on the in the fee agreement. Late payments of more than thirty (30) calendar days shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less.
b. Taxes. You shall be responsible for paying all personal, property, sales, use, value-added, withholding, and similar taxes (other than taxes on CredEvolv’s net income) arising from the transactions described herein. To the extent you are exempt from sales or other taxes, you agree to provide CredEvolv, upon request, with the appropriate exemption certificate.
c. Suspension for Non-Payment. CredEvolv reserves the right, in its discretion, to suspend or cancel access and/or use of the CredEvolv Service where any payment is due but unpaid. You agree that CredEvolv shall not be liable to you nor to any third party for any suspension or cancellation of the CredEvolv Service resulting from your non-payment of Fees. In the event that CredEvolv suspends or cancels your access to or use of the CredEvolv Services for non-payment, such suspension or termination shall not absolve you of any subsequent payment obligations pursuant to the Terms of this Agreement and CredEvolv may, in its sole discretion, elect to accelerate all payments due under the then current Subscription Term or Renewal Term of the Agreement such that all fees for that term shall become immediately due and owing.
a. Termination for Cause. CredEvolv may terminate this Agreement or your access or use of the CredEvolv Service if you (i) materially breach this Agreement, (ii) violate of any law, statute, ordinance; (iii) we believe, at our sole discretion, that you or any third party, are using the Service in a manner that may impose a security risk, may cause harm to us or any third party or regulation; or (iv) for any other valid reason in CredEvolv’s sole discretion.
b. Insolvency. A Party may immediately terminate this Agreement as it pertains to ay Company or its Authorized Users if the that Company becomes the subject of a petition in bankruptcy, or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
c. No Liability for Termination. CredEvolv shall not be liable to you because of or in any way relating to its termination of this Agreement and your access to or use of the CredEvolv Service. Termination in accordance with this Agreement, however, shall not relieve you of of obligations incurred prior to the date of termination.
c. Effect of Termination. Upon termination of this Agreement, all licenses and other rights granted to you by virtue of this Agreement shall terminate.
5. Security and Privacy.
a. Security. If you are a Company, you hereby represent that you have implemented and maintain an information security program in accordance with standard industry practice and to the extent required by applicable law. That program shall include the appropriate administrative, technical, and physical safeguards necessary to protect the integrity and security of any User Data or Proprietary Information (defined herein). You have and will retain sole responsibility for all information, instructions, and materials provided by or on your behalf or any of your Authorized Users, independent contractors, or personnel.
b. Breach. If you are a company and you experience a security breach that compromises or could result in theft, loss, unauthorized disclosure, alteration, acquisition, access to, or misuse of User Data, content delivered by the CredEvolv, or Proprietary Information, (a “Security Breach”), you shall promptly notify the us (and in no case more than twenty-four (24) hours after the discovery of the Security Breach) and will coordinate with us to investigate and remedy the Security Breach.
6. Proprietary Information. You are aware that you may become privy to or learn of the CredEvolv’s proprietary or confidential information, and therefore agree to be bound by the terms set forth herein.
a. Proprietary Information Defined. As used herein, “Proprietary Information” shall mean any and all information, or any part or portion thereof, furnished or disclosed, in whatever form or medium, concerning the CredEvolv Service, including, without limitation, CredEvolv’s Intellectual Property (whether registered or not), customer lists, business contacts, business plans, policies, procedures, techniques, know-how, ideas, methods, processes, standards, products, any Code, software, product or service specifications, manuals, agreements, economic and financial information, marketing plans, pricing, data, reports, analyses, compilations, statistics, summaries, studies, manuals, specifications, documents, and any other materials or information, or any materials based thereon, whether written or oral, furnished directly or indirectly by CredEvolv, through the CredEvolv Service, or any of CredEvolv’s directors, officers, employees, attorneys, accountants, and advisors. You understand that the aforementioned list is non-exhaustive and any other material or information furnished that would appear to a reasonable person to be confidential or proprietary in the context or circumstance under which the information was provided, or by the nature of such material or information, shall also fall under the definition of “Proprietary Information”. For purposes herein, any technical or business information of a third person furnished or disclosed by CredEvolv to you shall be deemed “Proprietary Information” of CredEvolv and subject to the terms of this Agreement.
b. Nondisclosure Obligations. You hereby agree that you will not use the Proprietary Information for any purpose other than to accomplish the objectives of the legitimate relationship between us and you, described and contemplated hereunder. Proprietary Information shall be kept confidential in the same manner you would protect your own confidential information, but you hereby agree that you will use no less than reasonable care, and you will not disclose any of the Proprietary Information in any manner whatsoever; provided, however, that (i) you may make any disclosure of such information to which the CredEvolv gives its prior written consent. You shall be responsible for any prohibited or unauthorized disclosure or use of the Proprietary Information by any of your Authorized Users or anyone who accesses the CredEvolv Service or proprietary information from your account or on your behalf. At your sole expense, you will exercise such precautions and take all reasonable measures to prevent improper use or disclosure of Proprietary Information by such persons or entities. You agrees to promptly notify CredEvolv of any unauthorized disclosure or improper use of its Proprietary Information and to use reasonable efforts to retrieve or remedy the same. All Proprietary Information shall be kept confidential and shall not, without CredEvolv’s prior written consent, be disclosed by the by you in any manner whatsoever, in whole or in part, except to the extent that you become legally compelled to disclose any of the Proprietary Information (and you comply with the provisions of subsection (c), below). Furthermore, you agree that you will not access any Proprietary Information or make any copies, electronic or otherwise, of any Proprietary Information or any documents, records, files, media, or other resources containing Proprietary Information, or decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of any Proprietary Information.
You agree that the obligations under this Agreement shall commence immediately upon you having access to the Proprietary Information and shall continue indefinitely until the Proprietary Information becomes public knowledge other than as a result of your breach of this Agreement or as the result of a breach by those acting in concert with you.
c. Compelled Disclosure. In the event that the you are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of portion of the Proprietary Information where such request or requirement is not caused by any voluntary action or proposed action by you, you shall (unless prohibited by law) provide us with prompt written notice of any such request or requirement so that we, in our sole discretion, may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. Upon the our written request, Ryou will not oppose and agree to assist the us in seeking, a protective order or other remedy. In the event that such protective order or other remedy is not obtained, or that we waive compliance with the provisions hereof, You agree to (i) furnish only that portion of the Proprietary Information for which we have waived compliance or that you are advised by counsel that you are legally required to disclose or else stand liable for contempt or suffer other censure or penalty and (ii) exercise best efforts to obtain assurance that the Proprietary Information will be accorded such confidential treatment.
d. Non-Proprietary Information. The term “Proprietary Information” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you, (ii) was within your possession prior to its being furnished by the us, or (iii) becomes available to you on a non-confidential basis from a source other than the us, or (iv) is independently developed by you without the use of Proprietary Information; provided that with respect to clauses (ii) and (iii) above, the source of such information was not known to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to us or any other party with respect to such information.
e. Termination and Retention. Within a reasonable time after our written request, the you shall promptly redeliver or destroy all material containing or reflecting any information contained in the Proprietary Information and will not retain any copies, extracts, or other reproductions in whole or in part of such written material. All documents, memoranda, notes, or other writings whatsoever, prepared and based on the information contained in the Proprietary Information shall be returned or destroyed, and the you shall certify such return or destruction in writing. The requirements of confidentiality set forth herein shall survive the return or destruction of such Proprietary Information.
f. Equitable Relief. You acknowledge that the failure to comply with this Section, entitled “Proprietary Information”, may cause CredEvolv to suffer irreparable injury for which the we will not have an adequate remedy available at law. Accordingly, the we may seek to obtain injunctive or other equitable relief to prevent or curtail any such breach, threatened or actual, without posting a bond or security and without prejudice to such other rights as may be available under this Agreement or under applicable law.
g. Survival. Your obligations hereunder and duty to maintain the confidentiality of any Proprietary Information shall survive the termination of this Agreement and shall continue until such Proprietary Information ceases to be confidential or proprietary.
7. Non-Solicitation. This Section entitled Non-Solicitation applies to Companies. If you are a Company, you agree that during the term of this Agreement and for a period of twenty-four (24) months after the expiration or earlier termination of the Agreement, without obtaining the prior written consent of CredEvolv, neither you nor any of your affiliates shall directly or indirectly, for yourself or on behalf of another person or entity:
a. solicit for employment or otherwise induce, influence, or encourage to terminate employment with CredEvolv or any of its affiliates or subsidiaries, or employ or engage as an independent contractor, any current or former employee of CredEvolv or any of its affiliates or subsidiaries with whom you had contact or who became known to you through or in connection with this Agreement, except pursuant to a general solicitation through the media that is not directed specifically to any employees of CredEvolv, unless such solicitation is undertaken as a means to circumvent the restrictions contained in or conceal a violation of this Section entitled “Non-Solicitation”; or
b. induce, influence, or encourage, any client, customer, supplier, or other third party with which CredEvolv has a business relationship or any of its affiliates or subsidiaries that became known you, directly or indirectly, pursuant to any Proprietary Information or any discussions, communications, or any other means related to or in connection with this Agreement or the CredEvolv Services, to alter, terminate, or breach its contractual or other business relationship with CredEvolv, its affiliates, or subsidiaries, or solicit business from any of those third parties or engage in business with those third parties that directly or indirectly competes with the business of CredEvolv. Notwithstanding the foregoing, nothing in this Section entitled “Non-Solicitation” restricts you from soliciting business from or engaging in business with any third party in the normal course of business, so long as you do not use any Proprietary Information or your relationship with CredEvolv to identify such third party or to communicate or negotiate with such third party.
You agree that the duration, scope, and geographical area of the restrictions contained in this Section, entitled “Non-Solicitation”, are reasonable. Upon a determination that any term or provision of this Section entitled “Non-Solicitation” is invalid, illegal, or unenforceable, a court of competent jurisdiction may modify this Section, entitled “Non-Solicitation” to substitute the maximum duration, scope, or geographical area legally permissible under such circumstances to the greatest extent possible to effect the restrictions originally contemplated by the you and us.
8. Third Party Services.
a. Third Party Services. The CredEvolv Service may enables you to engage and procure certain third party services, products, apps and tools in connection with the CredEvolv Service, including, without limitation, third party applications and widgets offered via our integrations offering or to which you decide to connect, as part of the Service (collectively, “Third Party Services”).
b. Independent Relationship. You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you, we merely act as an intermediary platform between you and such Third Party Services, and we do not, in any way, endorse any such Third Party Services, or shall be in any way responsible or liable with respect to any such Third Party Services. Your relationship with such Third Party Services and any terms governing your payment for, and use of, such Third Party Services, including without limitation, the collection, processing and use of your data by such Third Party Services, are subject to a separate contractual arrangement between you and the provider of a Third Party Service (the “Third Party Agreement”). We are not a party to, or responsible, in any manner, for the compliance by you or by the provider of the Third Party Service with the Third Party Agreement.
d. Discontinuation of a Third Party Service. We and any Third Party Service reserve the right to discontinue the use or suspend the availability of any Third Party Service, for any reason and with no obligation to provide any explanation or notice. Such discontinuation may result in the inability to utilize certain features and actions of the Third Party Service along with the CredEvolv Service.
f. Limitations of Liability. CREDEVOLV BEARS NO RESPONSIBILITY AND/OR LIABILITY FOR ANY LINKS OR THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION, SUCH THIRD PARTY SERVICE’S OPERABILITY OR INTEROPERABILITY WITH THE CREDEVOLV SERVICE, SECURITY, ACCURACY, RELIABILITY, DATA PROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELL AS ANY ACTS OR OMMISSIONS BY THIRD PARTIES. BY ACCESSING AND/OR USING THE THIRD PARTY SERVICES, YOU ACKNOWLEDGE THAT YOUR ACCESS AND USE OF THE THIRD PARTY SERVICES ARE AT YOUR SOLE DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD PARTY SERVICE’S OPERATION AND PRACTICES AND ITS RESPECTIVE THIRD PARTY AGREEMENT, MEET YOUR NEEDS.
9. Representations and Warranties.
a. You hereby represent and warrant that:
i. if you are a natural person, and access and use the Sites and/or the CredEvolv Service, you are at least 18 years old and are located within the United States of America. The Sites and/or CredEvolv Service are only intended for individuals aged eighteen (18) years or older, located in the United States of America. Any usage by persons under the age or eighteen and/or outside of the United States of American is explicitly prohibited.
ii. you shall obtain all necessary permissions and have the necessary rights and authorizations to share any User Data that you provides to CredEvolv. You shall also ensure that any User Data that is shared with, transmitted to, or otherwise disseminated to CredEvolv via the CredEvolv Service, or otherwise, shall be done in compliance and accordance with all federal, state, and local laws, including but not limited to the Gramm-Leach Bliley Act of 1999 (15 U.S.C. Section 6801 et seq.);
iii. in addition to and not in limitation of anything else contained in this Agreement, you are currently in compliance with and will continue to abide by and act in accordance with all federal, state, and local laws, regulations, and guidelines including without limitation, where applicable, the Fair Credit Reporting Act (15 U.S.C. § 1681 et. seq.) (the “FCRA”) and the Gramm-Leach-Bliley Act of 1999, (15 U.S.C. § 6801 et. seq.), the Real Estate Settlement Procedures Act of 1974 (“RESPA”) (12 U.S.C. § 2601 et seq.) as the same may be amended from time to time and the regulations promulgated thereunder.
10. Disclaimers and Limitation of Liability.
a. ALL SERVICES PROVIDED BY CREDEVOLV ARE PROVIDED “AS IS.” CREDEVOLV SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CREDEVOLV MAKES NO WARRANTY OF ANY KIND THAT THE CREDEVOLV SERVICE, SITES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR ACHIEVE ANY INTENDED RESULT AND EXPRESSLY DISCLAIM, ANY LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN, OR THE UNAVAILABILITY OF, THE CREDEVOLV SERVICES, WHETHER SUCH ERRORS OR OMISSIONS OR UNAVAILABILITY RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHERWISE, NOR DOES CREDEVOLV MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF THE CREDEVOLV SERVICES FOR ANY SPECIFIC PURPOSE.
B. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, CREDEVOLV WILL NOT BE LIABLE TO YOU (OR TO ANY OTHER PERSON OR ENTITY CLAIMING THROUGH YOU) FOR YOUR (OR SUCH PERSON’S OR ENTITY’S) LOST PROFITS OR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THIS AGREEMENT OR THE SUJECT MATTER HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT CREDEVOLV HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CREDEVOLV ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU TO CREDEVOLV FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, TORT, OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS TO CREDEVOLV, IF ANY. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO DAMAGES, (i) RESULTING FROM THE GROSS NEGLIGENCE, BAD FAITH, OR THE WILLFUL OR INTENTIONAL MISCONDUCT OF CREDEVOLV OR ITS PERSONNEL.
A. By You. You shall indemnify, defend, and hold harmless CredEvolv, its affiliates, and officers, directors, employees, and agents for and from any and all claims, actions, proceedings, losses, liabilities, damages (including, but not limited to, death, bodily injury, and property damage) and expenses (including, but not limited to, reasonable attorney fees and expenses) (collectively, “Losses”), which are asserted against, imposed upon or incurred or suffered by the CredEvolv, whether based upon contract or tort as a result of a third party action or demand against the Indemnified Parties arising out of the Your:
i. Violation of any law, regulation, other legal mandate or regulatory directive;
ii. Breach of any duty, covenant, condition, warranty or representation in this Agreement;
iii. Gross negligence, willful misconduct, or fraudulent acts, or wanton misbehavior; or
iv. Breach of any intellectual property rights or privacy rights of another.
b. By Us. We hereby agree to defend you, in and against any third party claim or demand against you, alleging that your authorized use of the CredEvolv Service infringes or constitutes misappropriation of any third party’s copyright, trademark or registered US patent (the “IP Claim”), and we will indemnify you and hold you harmless against any damages awarded on such IP Claim by a court of competent jurisdiction or agreed upon by virtue of settlement upon which we agree. However, our indemnity obligations under this shall not apply if: (i) the CredEvolv Service (or any portion thereof) was modified by you, any of your Authorized Users, or any third party; (ii) if the CredEvolv Service is used in combination with any other third party service, device, software, or products; and/or (iii) any IP Claim arising or related to, the User Data or to any events giving rise or triggering your indemnity obligations, above.
c. Procedure. If a Party (the “Indemnified Party”) seeks indemnification under this Agreement, the Indemnified Party will: (i) give prompt notice to the other Party (the “Indemnifying Party”) concerning the existence of the indemnifiable event; (ii) grant authority to Indemnifying Party to defend or settle any related action or claim; and, (iii) provide, at Indemnifying Party’s expense, such information, cooperation and assistance to Indemnifying Party as may be reasonably necessary for Indemnifying Party to defend or settle the claim or action. An Indemnified Party’s failure to give prompt notice shall not constitute a waiver of the Indemnified Party’s right to indemnification and shall affect Indemnifying Party’s indemnification obligations only to the extent that the Indemnifying Party’s rights are materially prejudiced by such failure or delay. Notwithstanding anything to the contrary set forth herein, (i) an Indemnified Party may participate, at its own expense, in any defense and settlement directly or through counsel of its choice, and (ii) Indemnifying Party will not enter into any settlement agreement on terms that would diminish the rights provided to the Indemnified Party or increase the obligations assumed by the Indemnified Party under this Agreement, without the prior written consent of the Indemnified Party. If Indemnifying Party elects not to defend any claim as required under this Agreement, the Indemnified Party will have the right to defend or settle the claim as it may deem appropriate, at the cost and expense of Indemnifying Party, and Indemnifying Party will promptly reimburse the Indemnified Party for all costs, expenses, settlement amounts and other damages.
d. Notification of Third-Party Claims. Indemnifying Party will promptly notify the Indemnified Party concerning any threat, warning, claim or action against Indemnifying Party or its customers or suppliers, that could have an adverse impact on the Indemnified Party.
e. Infringement Claims. If any claim has been made or is likely to be made by a third party that the CredEvolv Service or any portion thereof violates the intellectual property rights of a third party to this Agreement, CredEvolv may, at its sole option and expense, either: (i) procure for you the right to continue using the CredEvolv Service; or (ii) replace or modify the CredEvolv Service so that it becomes non-infringing, provided that the replacement or modification does not diminish the performance or quality of the CredEvolv Service. If neither of the foregoing options is reasonably available, CredEvolv may immediately terminate both Parties’ respective rights and obligations under this Agreement with regard to the CredEvolv Service, and refund a pro-rata portion of any fees (if any) actually paid by you for the unused portion of such the CredEvolv Service.
f. Sole Remedy. THIS SECTION (entitled “INDEMNIFICTION”) SETS FORTH THE SOLE REMEDIES AND SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12. ARBTRATION AND CLASS ACTION WAIVER.
a. Purpose. This Section constitutes the arbitration agreement between you and us (“Arbitration Provision”), and includes a mutual waiver of class action rights. It governs any dispute, claim, disagreement arising out of or relating in any way to this Agreement, your access to or use of the CredEvolv Service, the Sites, any communications you receive from us, any products sold or distributed by CredEvolv, the interpretation of this Agreement (which includes this Arbitration Provision and whether a disagreement is a “dispute” subject to binding arbitration as provided for in this Arbitration Provision), and any prior versions of this Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”).
b. Non-judicial Dispute Resolution. You and we agree that any Disputes between or among you and us, regardless of when it arose, will, upon demand by either you or us, be resolved by the arbitration process described in the Section “Binding Arbitration and Waiver of Class Action Rights” below. YOU UNDERSTAND AND AGREE THAT YOU AND WE ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR A TRIAL BEFORE A JUDGE IN A PUBLIC COURT. As an exception to this Arbitration Provision, we both retain the right to pursue disputes in small claims court in the state where you reside if the dispute lies within that court’s jurisdiction.
c. Definition of Disputes. A dispute is any unresolved disagreement between or among you and us. Disputes include:
i. Claims based on broken promises or contracts.
ii. Torts (injuries caused by negligent or intentional conduct) or other wrongful actions.
iii. Statutory, common law, and equitable claims.
iv. Any disagreement about the meaning of this Arbitration Provision.
v. Whether a disagreement is a “dispute” subject to binding arbitration as provided for in this Arbitration Provision.
d. Binding Arbitration and Waiver of Class Action Rights. Binding arbitration lets an independent third party resolve a Covered Dispute without using the court system, judges, or juries. Either you or we may require the submission of a Covered Dispute to binding arbitration at any reasonable time, even if a lawsuit or other proceeding has begun. If either you or we don’t submit to binding arbitration following a lawful demand, the one who fails to so submit bears all costs and expenses (including attorney’s fees and expenses) incurred by the other in compelling arbitration.
YOU HEREBY UNDERSTAND AND AGREE THAT NEITHER YOU NOR WE WILL BE ENTITLED TO:
i. JOIN, CONSOLIDATE, OR COMBINE ANY DISPUTES BY OR AGAINST OTHERS IN ANY ARBITRATION; OR
ii. INCLUDE IN ANY ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS; OR
iii. ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
FOR THE AVOIDANCE OF DOUBT, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND YOU AND WE HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER AUTHORIZED USER.
Each arbitration, including the selection of the arbitrator, will be administered by the American Arbitration Association (“AAA”) or such other administrator as you and we may mutually agree to (the AAA or such other mutually agreeable administrator to be referred to here as the “Arbitration Administrator”), according to the Commercial Arbitration Rules and the Consumer Arbitration Rules (“AAA Rules”).
To the extent that there is any variance between the AAA Rules and this Arbitration Provision, this Arbitration Provision will control. Arbitrator(s) must be a member of the state bar where the arbitration is held, with expertise in the substantive laws applicable to the subject matter of the Covered Dispute.
You and we each agree that in this relationship:
i. You and we are participating in transactions involving interstate commerce.
ii. The Arbitrator will decide any dispute regarding the enforceability of this Arbitration Provision.
iii. Each arbitration is governed by the provisions of the Federal Arbitration Act (Title 9 of the United States Code) and, to the extent any provision of that Act is inapplicable, unenforceable, or invalid, the laws governing the relationship between you and us about which the Dispute arose.
iv. To find out how to initiate arbitration, please call any office of the AAA or visit the AAA Website at www.adr.org. If any of the provisions of this Arbitration Provision dealing with class action, class arbitration, private attorney general action, other representative action, joinder, or consolidation is found to be unlawful or unenforceable, that invalid provision shall not be severable, and this entire arbitration agreement shall be unenforceable.
e. Equitable Relief. Notwithstanding anything in this Arbitration Provision, you and we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to seek equitable relief in a court of competent jurisdiction to protect Intellectual Property and other Proprietary Information.
f. Miscellaneous. You and we each agree to take all steps and execute all documents necessary for the implementation of arbitration proceedings. The arbitrator may hear and rule on appropriate dispositive motions as part of the arbitration proceeding, such as motions for judgments on the pleadings, summary judgment, or partial summary judgment.
All parties (the AAA, the arbitrators, you and we) must, to the extent feasible, take any action necessary to ensure that an arbitration proceeding, as described in this Arbitration Provision, is completed within 180 days of filing the Covered Dispute with the AAA. This provision will be liberally construed to ensure the enforcement of this Arbitration Provision.
Arbitration proceedings are conducted in the state where you reside or at a location determined by the AAA. All statutes of limitations that apply to any Covered Dispute apply to any arbitration between you and us.
The provisions of this Arbitration Provision will survive termination, amendment, or expiration of your Account relationship, the governing Agreement, or any other relationship between you and us.
This Arbitration Provision constitutes the entire agreement between you and us and supersedes all prior arrangements and other communications about dispute resolution.
g. Fees and Expenses. Arbitration fees shall be determined by the rules or procedures of the arbitration administrator, unless limited by applicable law. Please check with the arbitration administrator to determine the fees that apply to any arbitration you may file. If the law that applies to this Agreement limits the amount of fees and expenses you have to pay, then no allocation of fees and expenses to you shall exceed this limitation. We will pay any costs that are required to be paid by us under the arbitration administrator’s rules and procedures, and subject to applicable law. If the arbitrator rules in your favor on any claim presented, we will reimburse you for arbitration filing fees you have paid up to $700.00. Unless applicable law states otherwise, each party will pay their own attorney, expert, and witness fees. This rule applies no matter which party wins arbitration.
h. Small Claims Court. Notwithstanding anything in the Agreement to the contrary, each Party retains the right to pursue in Small Claims Court any dispute in which the remedy sought is entirely within that court’s jurisdiction.
a. Waiver. No delay by either Party in exercising any right shall act or operate as a waiver of that right. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving.
b. Assignment. You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without CredEvolv’s prior written consent, which shall not be unreasonably withheld. CredEvolv may assign or transfer its rights, or delegate or otherwise transfer its obligations or performance under this Agreement so long as it can assure that the level of service provided by the transferee will meet or exceed the level of service provided by CredEvolv.
c. Entire Agreement. This Agreement, and any other documents incorporated herein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter, except that if CredEvolv and a Company have executed a separate contract and the terms of that contract conflict with the terms contained in this Agreement, the conflicting terms of that separate contract shall supersede the conflicting terms contained in this Agreement and shall govern the terms of relationship between Credevolv and such Company. CredEvolv may modify all or parts of the terms of this Agreement at any time. If CredEvolv revises the terms of this Agreement, the modified version will not be retroactive and will be effective and binding once CredEvolv provides you with notice of the material changes, via the email address provided by you or within the CredEvolv Service. Your continued access to or use of the CredEvolv Service after CredEvolv sends you notice of the changes shall indicate that you have agreed to be bound by the most current version of the terms of this Agreement.
d. Force Majeure. In no event shall either Party be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond the Party’s reasonable control, including but not limited to acts of God, labor stoppages or slowdowns or other industrial disturbances, unavailability of internet or other utility, pandemic, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
e. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. All judicial proceedings to be brought with respect to the Agreement or any other dispute between the Parties hereto shall be brought exclusively in the state courts in and for Miami-Dade County, Florida (the “Court”) By accessing and utilizing CredEvolv Service, the Parties hereto each accepts generally and unconditionally the exclusive jurisdiction of the Court and irrevocably waives any objection (including, without limitation, any objection of the laying of venue based on the grounds of forum non-conveniens) which either of them may now have or hereafter have to the bringing of any such action or proceeding with respect to this Agreement or any other dispute in the Court. The terms of this forum/venue selection clause shall be construed as mandatory, rather than permissive.
f. Headings. Section headings of this Agreement have been added solely for convenience of reference and shall have no effect upon construction or interpretation of this Agreement.
g. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever.
h. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the CredEvolv at: CredEvolv Services LLC, 2338 Immokalee Road., Ste 226, Naples, FL 34110 or via email at [email protected]. Notices to you shall be sent to the mailing and/or email address provided by you or via the CredEvolv Service. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email, or certified or registered mail (in each case, return receipt requested, postage pre-paid).
i. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, fiduciary relationship, or otherwise between the Parties.
j. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, it shall be modified by a court of competent jurisdiction or the arbitrator, as the case may be, to the minimum extent necessary to render it valid and enforceable.
k. Survival. The following sections shall survive the expiration or termination of this Agreement: “Purpose, Use, and Restrictions”; “Fees”; “Security and Privacy”; “Proprietary Information”; “Non-Solicitation”; “Representations and Warranties”; “Disclaimers and Limitation of Liability”; “Indemnification”, “Arbitration and Class Action Waiver”, “Miscellaneous”, and any other Sections of this Agreement which, by their very nature, are intended to survive the expiration or termination of this Agreement.
Last update: August 24, 2023