TERMS AND CONDITIONS
(Last Updated Date: 9/1/2020)
By signing up for a Evolution Collect, LLC Account (as defined in Section 1 below) or by using any Evolution Collect, LLC services, you are agreeing to be bound by the following Terms and Conditions of service.
1. EVOLUTION COLLECT (SAAS) SERVICES AND SUPPORT
1.1 Subject to these Terms and Conditions (the “Agreement”), Evolution Collect, LLC (“Company”) will use commercially reasonable efforts to provide to you (“Customer”), through Company’s website (the “Site”), certain software services known as Evolution Collect (the “Services”).
1.2 Company reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify this Agreement at any time and without prior notice. If Company modifies this Agreement, Company will post the modification on the Site or provide Customer with notice of the modification. Company will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Site or Services after Company has posted a modification on the Site or has provided Customer with notice of a modification, Customer is indicating that it agrees to be bound by the modified Agreement. If the modified Agreement is not acceptable to Customer, the Customer’s only recourse is to cease using the Site and Services.
1.3 To access and use the Services, you must register for an Evolution Collect, LLC account by providing your full legal name, the name of your company, current address and telephone number, a valid e-mail address and any other information that is indicated as required. Evolution Collect, LLC may reject your application for an Account, or cancel an existing account, for any reason, in its sole discretion. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Additionally, Customer will identify a certain number of Customer’s employees or representatives who are authorized users (“Users”) of the Services. Customer shall not permit any other persons or parties, beyond Users, to access the Site or Services. Customer shall be responsible for ensuring that such access and use of the Site and Services by Users is conducted in full compliance with the terms and conditions of this Agreement. Customer shall be fully responsible and liable for the acts and omissions of the Users in their use of the Services. No User shall have the right to take any direct legal action against Company under this Agreement.
1.4 Subject to the terms hereof, Company will provide Customer with reasonable technical support in accordance with Company’s standard practice.
2. CUSTOMER RESPONSIBILITIES AND RESTRICTIONS
2.1 For purposes of this Agreement, “Content” means any information, data, images or other materials that Customer (including its Users) posts, uploads, publishes, submits or transmits to be made available through the Site or Services. Content shall only be posted by Customer and its Users. Customer acknowledges and agrees that it is solely responsible for all Content that it and its Users make available through the Site or Services. Accordingly, Customer represents and warrants that Customer either is the sole and exclusive owner of all Content that it makes available through the Site or Services or it has all rights, licenses, consents and releases that are necessary to use such Content as contemplated as a part of the Services. Customer further represents and warrants that neither the Content, nor the posting, uploading, publication, submission or transmittal of the Content by Customer and/or its Users, on, through or by means of the Site or Services, will:
(a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) result in the violation of any applicable law or regulation; or (c) contain or promote information that is defamatory, discriminatory, fraudulent, false, misleading or deceptive in nature.
The Site, Services and Content will be stored on servers located in the United States. In posting any Content, Customer is confirming its consent to such information, including any personal information contained therein, being hosted and accessed in the United States. Customer shall be solely responsible for ensuring compliance with applicable laws and regulations (including, without limitation, those pertaining to data privacy), and securing required consents, if Customer transfers Content outside of the United States or allows Users to access the Services, Site and/or Content from outside the United States.
2.2 Customer hereby acknowledges that debt collection is a highly regulated industry, and that Customer is solely responsible for accessing, using and implementing the Site and Services in compliance with applicable laws and regulations (including, without limitation, those pertaining to debt collection and data privacy). While Company may from time to time provide features and information in the Services that may facilitate compliance with applicable laws and regulations, Company is not a licensed debt collection agency or otherwise engaged in the business of debt collection in any state, nor is Company comprised of lawyers or experts in the debt collection industry. COMPANY DOES NOT GUARANTEE THE ACCURACY, VERACITY, OR COMPLETENESS OF ANY INFORMATION REGARDING APPLICABLE LAWS AND REGULATIONS (INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO DEBT COLLECTION OR DATA PRIVACY) WHICH MAY BE PROVIDED BY COMPANY OR OTHERWISE REFLECTED AS A PART OF THE SERVICES. COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO INTERPRET OR APPLY ANY APPLICABLE LAWS OR REGULATIONS (INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO DEBT COLLECTION OR DATA PRIVACY) IN THE SITE OR SERVICES.
2.3 Customer will not (and will not permit others, including Users, to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.4 Customer will not (and will not permit others, including Users, to), send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation, in connection with the Site or Services.
2.5 Customer will not (and will not permit others, including Users, to), attempt to probe, scan, or test the vulnerability of any Company system or network or breach any security or authentication measures, or avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Company or any of Company’s providers or any other third party (including another user) to protect the Site or Services.
2.6 Customer will not (and will not permit others, including Users, to) remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.7 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
Company will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Company may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement. Customer acknowledges that Company has no obligation to monitor Customer’s (or its Users’) access to or use of the Site or Services or to review or edit any Content, but has the right to do so for the purpose of operating the Site and Services, to ensure Customer’s compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Company reserves the right, at any time and without prior notice, to remove or disable access to any Content that Company, at its sole discretion, considers to be in violation of this Agreement otherwise harmful to the Site or Services.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes Content and other non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, (c) all of Company’s trade names, trademarks, service marks, and logos contained within the Site and Services, and (d) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 Company welcomes and encourages Customer (and its Users) to provide feedback, comments and suggestions for improvements to the Site or Services (“Feedback”). Customer acknowledges and agrees that if any Feedback is submitted to Company, Customer hereby grants to Company a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that Customer owns or controls to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees for the Services in accordance with any separate fee agreement and the Company’s usual policies (the “Fees”). If Customer’s use of the Services requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month or fraction thereof on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is month-to-month and shall be automatically renewed each month for an additional monthly term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES OR SITE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SITE AND SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT THE SITE OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE RESULTS OR OUTPUTS FROM THE SERVICES WILL BE ACCURACATE, TIMELY, COMPLETE OR RELIABLE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY, OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
7. INDEMNIFICATION; LIMITATION OF LIABILITY
7.1 Customer agrees to defend, indemnify, and hold Company, Company’s affiliate, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with Customer’s or its Users’ (a) access to or use of the Site or Services, or (b) violation of this Agreement.
7.2 CUSTOMER ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF CUSTOMER’S AND ITS USERS’ ACCESS TO AND USE OF THE SITE AND SERVICES REMAINS WITH CUSTOMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR LOSS OF PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. SMS Terms of Service:
Evolution Collect, LLC is a technology company in the accounts receivable management space. We provide everything agencies need in a simple, intuitive interface. From account management to reporting, our goal is to provide the best software experience possible. Evolution Collect, LLC offers an SMS messaging service. The Services allow you to send certain communications to your customers by short message service (SMS) messaging (for example, sending payment confirmation notifications via SMS) (the “SMS Services”). You will only use the SMS Services in compliance with these Terms of Service and the laws of the jurisdiction from which you send messages, and in which your messages are received. The short code will be advertised to consumers by telephone (“MOTO Services”) or by mail, or both.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Illinois without regard to its conflict of laws provisions. Customer and Company hereby submit to the exclusive jurisdiction of the federal and state courts located in the State of Illinois.