TERMS OF SERVICE
Last updated June 29th, 2022
PLEASE READ THIS MOBILE APP AND WEBSITE TERMS OF SERVICES AGREEMENT (“Agreement”) CAREFULLY. This Agreement has been prepared as a legally binding agreement between you (sometimes referred to as “you” or “your”) and Evoke Auto, Inc. (“Evoke Auto, Inc”, “us”, “our”, or “we”) (You and Evoke Auto, Inc are collectively referred to as the “Parties”).
Evoke Auto, Inc makes the website operated by Evoke Auto, Inc for the Program (the “Website”), Program’s mobile application available through the Apple App Store, the Google Play Store any other location to download (directly from our Website or other platform) (“Mobile App”) websites, webpages, social media pages, and electronic communications from which this Agreement is linked or on which it appears (collectively, the “Services”) available for your use subject to the terms and conditions in this Agreement. Please note that different or additional terms – including, but not limited to, the subscription agreement that governs your use of our vehicle service (the “Program”) – may apply to specific services or features offered on the Service or specific uses of the Service (“Specific Agreements”). This Agreement does not apply to websites operated by our affiliates or other third parties that do not link to this Agreement.
IMPORTANT NOTICE: YOUR USE OF THE SERVICES IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 13 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION, UNLESS PROHIBITED BY LAW OR YOU EXPRESSLY OPT OUT OF ARBITRATION AS DESCRIBED IN THAT SECTION. Please carefully review Section 13 of this Agreement for more information.
1. Revisions to this Agreement
We may revise and update this Agreement from time to time and will post the updated Agreement to the Services. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of our Services will constitute your agreement to any new provisions within the revised Agreement.
2. User Eligibility
By using or otherwise accessing our Services, you hereby represent and warrant to us that you:
are over the age of majority in your jurisdiction or otherwise have the power and authority to enter into and perform your obligations under this Agreement, including, if you are below the age of 18, but between 13 and 18 years of age, you have consent of a parent or guardian to access and use the Services;
all information provided by you is truthful, accurate and complete; and
will comply with the terms and conditions of this Agreement and any other agreement to which you are subject to that is related to your use of the Services or any part thereof. You may not use our Services if you are prohibited, either by the laws of the United States of America or any other country, from accessing our Services or receiving any services via our Website or Mobile App.
3. User Account
If you successfully register with our Services, you will be considered a “Subscriber” of and will have a “User Account” for the Service. You agree that you will only provide true and accurate information on any registration or application forms, which is not false, misleading or otherwise an impersonation of any person or entity. Except as expressly provided in these Terms, you shall not allow any other individual or entity to access and/or use your User Account. Accordingly, you agree to protect your username and password by, among other things, keeping your username and password confidential. If, notwithstanding the foregoing obligation, you allow another party to use your username and/or password to access your User Account, you will be responsible for all use by the party using such account. You agree to (a) immediately notify Evoke Auto, Inc of any unauthorized use of your password or any other breach of security, and (b) ensure that you exit from your account at the end of each session.
4. Your License to Access the Service
All written content prepared and posted by Evoke Auto, Inc and the design, layout, look, appearance, and graphics on our Website or Mobile App, as well as the trademarks, service marks, and logos contained on the Services (“Evoke Content”) are owned by or licensed to Evoke Auto, Inc and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign Laws and international conventions. Evoke Auto, Inc reserves all rights not expressly granted in, and to, the Service and the Evoke Content.
Except as otherwise provided in this Agreement, no part of the Services and no Evoke Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use, without our prior express written consent.
On the condition that you comply with all your obligations under this Agreement, Evoke Auto, Inc grants you a limited, revocable, non-exclusive, non-transferable license to access our Services. Any use of the Services in excess of this license is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Services.
Your access to the Services is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any content or services we provide on the Services without notice.
When linking to our Services, you understand and agree that: (i) you may not state or imply that Evoke Auto, Inc is endorsing you and/or any of the products or services that you or your organization provides; (ii) you must clearly and truthfully communicate to the public that you are one of the persons or organizations permitted to link to our Services by stating your relationship with Evoke Auto, Inc; (iii) without an express written consent of Evoke Auto, Inc, you may not copy, reproduce, display, republish, download, post or otherwise use Evoke Content on your website or on another webpages, or use Evoke Auto, Inc’s logo as a link. Evoke Auto, Inc assumes no liability or responsibility whatsoever for any content of any third party websites, webpages or social media accounts that are linked to our Services or Evoke Content. If your link to the Website or Evoke Content results in the need for servicing or repair of equipment or data, you agree to assume any costs thereof. Evoke Auto, Inc reserves the right to terminate any links to the Services as it deems necessary, with or without cause or warning. You shall remove your link to our Services or Evoke Content immediately if Evoke Auto, Inc chooses to exercise its rights under the Agreement.
5. Acceptable User Conduct
5.1. Prohibited Conduct. You agree that you will not (and will not permit any third party to), under any circumstances
use our Services for any illegal or unauthorized purpose;
use our Services for any purpose that may be deemed by us to be threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, explicit or otherwise in violation of this Agreement;
attempt to decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of our Services;
copy, modify, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services is based;
use any Services or Evoke Content in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
impersonate any person or entity; collect or store personal data about other users without permission; or disclose private or proprietary information that you do not have the right to disclose;
solicit information from another user in furtherance of identity theft or another unlawful purpose;
frame or otherwise simulate the appearance or functions of the Services or any portion thereof;
modify, copy, sell, resell, rent, lease, loan, sublicense, redistribute, or create any derivative work of, any portion of our Services, including any Evoke Content included on our Services;
use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on our Services, deep-link to any feature or content on our Services, bypass, circumvent, disable or otherwise interfere with our robot exclusion headers or other similar measures; or
use our Services for any purpose that constitutes unauthorized or unsolicited advertising, junk or bulk e-mail, chain letters, any other form of unauthorized solicitation or any form of lottery or gambling.
5.2. Violations. Although we do not generally monitor user activity occurring in connection with our Services, if we become aware of any possible violations by you of any provision of this Agreement, Evoke Auto, Inc reserves the right to investigate such violations, and we may, at its sole discretion, immediately terminate your license to use our Services, without prior notice to you or anyone else.
6. Your Suggestions and Other Content
We welcome your comments regarding the Services, Evoke Content, and our other products and services, and any content you provide through any interactive features on the Services. If you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials to us in connection with or related to the Services and Evoke Auto, Inc’s products or services (including any related technology), whether you send such information or materials to us through our Website, Mobile App, our social media pages, or through a separate communication channel (“Feedback”), you grant us a worldwide, non-exclusive, perpetual, royalty-free, fully sub-licensable, irrevocable right and license to use, reproduce, perform, display, disclose, reproduce, adapt, modify, re-format, create derivative works of, license, transfer and otherwise commercially or non-commercially exploit any and all Feedback in any manner. Please do not send us such information or materials if you do not wish to grant us the rights set forth in this Section.
We respect the intellectual property rights of others. If you believe that any Evoke Content of our Services may infringe your copyrights or other intellectual property rights, please provide Evoke Auto, Inc the written information specified below. Please note that this procedure is exclusively for notifying Evoke Auto, Inc if you believe that your intellectual property rights have been infringed.
An electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property interest;
A description of the intellectual property right that you claim has been infringed;
A description of where the material that you claim is infringing is located on our Services;
Your address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the intellectual property owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the intellectual property owner or authorized to act on the intellectual property owner’s behalf.
Evoke Auto, Inc’ representative for notice of claims of copyright infringement or other intellectual property infringement on our Services can be reached as follows:
Evoke Auto, Inc, Inc.
5125 NE 22nd Ave, Portland, OR, 97211
7. Third Party Websites
The Services may include or provide links to other websites on the Internet that we do not control. These other websites may provide opinions, recommendations, or other information from various individuals, organizations, or companies. We are not responsible for the nature, quality, or accuracy of the content or opinions expressed on such websites and we do not investigate, monitor, or check them for quality, accuracy, or completeness. Inclusion of any linked website on the Services does not imply or express an approval or endorsement of the linked website by us or of any of the content, opinions, treatments, information, products, or services provided on these websites, even if we receive a referral fee in connection with your use of such third-party websites.
8. Your Privacy; Protection of Your Account Credentials
You are responsible for protecting the log-in credentials for your User Accounts from unauthorized access and use. You must promptly notify Evoke Auto, Inc by email at email@example.com of any known or suspected unauthorized use(s) of your account.
9. Disclaimer of Warranties
B. System Unavailability. There may be times when our Services are unavailable due to technical errors or network outages or for maintenance and support activities. We do not represent, warrant, or guarantee that our Services will always be available or completely free of human or technological errors.
C. Errors. Our Services and Evoke Content may contain typographical mistakes, inaccuracies, or omissions and some information may not be complete or current. We expressly reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice. We do not make any representation or warranty concerning errors, omissions, delays, or defects in the Services or Evoke Content or any information supplied to you via the Services, or that files available through the Services are free of viruses, worms, Trojan horses, or other code that include or manifest contaminating or destructive characteristics.
D. Compatibility. You must provide the equipment and Internet connections necessary to access the Services at your own expense. We do not guarantee that the Services will operate with your computer, tablet, mobile device, network, installed software, internet or mobile carrier service plans, or with any particular computer or other piece of hardware, software, equipment, or device you install on or use with your computer.
10. Limitation of Liability
We are not responsible for any damages to you or anyone filing suit on your behalf for any reason.
Evoke Auto, Inc AND ITS LICENSORS, PARENTS, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ASSIGNEES OR SUCCESSORS-IN-INTEREST (“Evoke PARTIES”), WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS, DEMANDS, LOST PROFITS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE, RELATING TO THIS AGREEMENT, YOUR USE OR INABILITY TO USE THE SERVICE OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF Evoke PARTIES, FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF ONE THOUSAND U.S. DOLLARS ($1000.00 USD) or your direct provable damages.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATIONS OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND Evoke Auto, Inc’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11. RELEASE AND INDEMNIFICATION
11.1. Release. You agree to release Evoke Parties from any and all liability and obligations whatsoever in connection with or arising from your use of our Services or Evoke Content. If at any time you are not satisfied with the Services or object to any Evoke Content or other material within or on the Services, your sole and exclusive remedy is to immediately stop using and otherwise accessing the Services.
11.2. Indemnification. You agree to indemnify and hold Evoke Parties harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees, disbursements and court costs) arising from or in connection with: (i) the use or inability to use our Services or any Content; (ii) your breach or violation of this Agreement or any other guidelines or agreements referenced in this Agreement; (iii) any information you provide to Evoke Auto, Inc (including any information your provide to us as part of your registration, application, Feedback or other user submitted content); (iv) your link to, or inability to link to, our Services or Content; (v) your violation of any rights of any third party, including privacy and intellectual property rights
You will have the right to defend and compromise such claim at your expense for the benefit of the Evoke Parties; provided, however, you will not have the right to obligate the Evoke Parties in any respect in connection with any such settlement without the prior written consent of the indemnified Party. Notwithstanding the foregoing, if you fail to assume your obligation to defend, the Evoke Parties may do so to protect their interests and you will reimburse all costs incurred by the Evoke Parties in connection with such defense.
11.3. Release by California Residents. If you are a California resident or could otherwise claim the protections of California law, you further expressly waive the provisions of Section 1542 of the California civil code, which reads as follows: “A general release does not extend to the claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release which, if known by him or her, must have materially affected his or her settlement with the debtor.” You acknowledge that you have read and understand Section 1542 of the California civil code, and you hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to your release of any claims you may have against Evoke America.
12. CHOICE OF LAW
This Agreement and the rights of the Parties hereunder will be governed by and construed in accordance with the Laws of the State of Delaware, exclusive of conflict or choice of law rules. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding sentence with respect to applicable substantive Law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
A. Arbitration. Any dispute, claim or controversy in connection with, arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity of this Agreement, including, but not limited to, the determination of the scope or applicability of this agreement to arbitrate (a “Dispute”), will be determined by arbitration in the State of New York before a single arbitrator. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with AAA Consumer Arbitration Rules. Judgment on the award may be entered in any court having jurisdiction. This provision will not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
B. Conduct of Arbitration. The arbitration will be commenced by the claimant Party filing a demand for arbitration with the administrator of AAA and serving the demand on the opposing Party. Within thirty (30) calendar days of the date the demand for arbitration is filed, the Parties will select an arbitrator by following the AAA Consumer Arbitration Rules’ appointment procedures. Except as may be required by law, neither Party nor the arbitrator may disclose the existence, content or results of any arbitration under this Agreement without the prior written consent of both Parties. The arbitrator’s award will be in writing accompanied by a reasoned opinion and a written statement of the essential findings and conclusions on which the award is based.
C. Costs. The arbitrator will determine how the costs and expenses of the arbitration will be allocated between the Parties, and may award attorneys’ fees.
D. Limitation of Liability. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect, or consequential damages (including damages for lost profits, lost earnings or loss of use) or any punitive or exemplary damages.
E. Arbitration is on an Individual Basis Only; Class Action Waiver. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. NOTWITHSTANDING THE ARBITRATOR’S POWER TO RULE ON HIS OR HER OWN JURISDICTION AND THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE, THE ARBITRATOR HAS NO POWER TO RULE ON THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THIS SECTION WILL REMAIN IN FORCE.
14. Miscellaneous Terms
A. Consent to Do Business Electronically. We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement, Specific Agreements and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor Evoke Auto, Inc will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically. Without limiting the foregoing, the terms of Evoke Auto, Inc’s Electronic Signature and Records Disclosure policy apply to your use of the Services.
B. Term and Termination. This Agreement are effective unless and until terminated by Evoke Auto, Inc or you. Evoke Auto, Inc may, in its sole discretion, terminate your use of the Website or any part thereof if you fail to comply with any term of provision of this Agreement. You may terminate this Agreement at any time by discontinuing all use of the Website. Termination or cancellation of this Agreement shall not affect any right or relief to which either Evoke Auto, Inc or you may be entitled at law or in equity. Upon termination, you must terminate all use of the Services and destroy all materials, including any Evoke Content, obtained using the Services and all copies thereof.
C. Complete Agreement. Except for any Specific Agreements that may govern particular uses or features of the Services, this Agreement constitutes the entire agreement between you and Evoke Auto, Inc relating to your use of, and access to, this Service and supersedes any prior or contemporaneous agreements or representations. This Agreement may not be amended except as set forth in Section 1 of this Agreement.
D. Severability. If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible. Where there is a conflict between the terms in a Specific Agreement and the terms in this Agreement, the conflicting terms in Specific Agreement shall take precedence.
E. Headings. Descriptive headings contained in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of this Agreement.
F. No Waivers. Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision.
G. No Assignments and Transfers. No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.
H. Language of the Agreement. Although this Agreement may be translated into other languages, the English language version of this Agreement shall control in any Dispute between the Parties.
I. No Third Party Beneficiaries. Nothing in this Agreement will confer upon any person, other than the Parties, any rights, remedies, obligations, or liabilities whatsoever.
J. Notices. You can provide any notices to us under this Agreement by e-mail or mail using the contact information provided in Section 15, below. Unless you tell us otherwise, or the Law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing Evoke Auto, Inc with up-to-date contact information, which you may do by updating your account information through the Service or by sending a message to us via the contact information provided in Section 15, below. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.
15. CONTACT US
If you have any questions or need to contact us for any reason relating to this Agreement, please e-mail firstname.lastname@example.org or call +1 (541) 680-3493. You may also send us mail at the following address: Evoke Auto, Inc, 5125 NE 22nd Ave, Portland, OR, 97211,