Evolt IOH LLC (‘Evolt’) offers a variety of Evolt’s products and services, including the Evolt branded fitness and wellness related platforms, applications, devices, hardware, equipment, content and other products and services from time to time, including but not limited to Evolt 360 (collectively ‘Products and Services’).
The following terms and conditions (“Terms and Conditions”) regulate the relationship between the user and/or purchaser (‘You’)(‘Your’) and Evolt for the purchase, download and/or use of the Products and Services. Please read the Terms and Conditions carefully before using the Products and Services as any purchase, download or use of the Products and Services will constitute your acceptance of these Terms and
Conditions, which will govern the relationship between You and Evolt, provided that provision of software and cloud-based services shall be governed separately by a Subscription Agreement between Evolt IOH Pty Ltd, an Australian proprietary company limited by shares, and You.
Sale of any Products or Services is expressly conditioned on Your assent to these Terms and Conditions. Any acceptance of Evolt’s offer is expressly limited to acceptance of these Terms and Conditions and Evolt expressly objects to any additional or different terms proposed by You. Your form shall not modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Any order to purchase Products or receive Services shall constitute Your assent to these Terms and Conditions. Unless otherwise specified in the quotation, Evolt’s price quotation shall expire thirty (30) days from its date and may be modified or withdrawn by Evolt before receipt of your conforming acceptance. Order forms for the purchase of Products and Services may be submitted electronically, including through Evolt’s website.
Annual Fees means optional reporting and analytics subscription fees;
BCA Machine means the Body Composition Analyzers and its related components;
Business Days means any day other than a Saturday, Sunday or public holiday in the State of Delaware;
Confidential Information means Confidential Information which includes, but is not limited to:
(a) information specifically designated by the parties as being confidential;
(b) Intellectual Property;
(c) developments relating to existing and future products;
Defective Product means a Product that fails to operate or perform substantially in conformance with Evolt’s published specifications or is not free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for the period of time set forth in the Product documentation or specifications published by Evolt;
Equipment means the BCA Machine, kiosk or bracket, Windows Surface Pro (or equivalent from time to time), printers, the platform, application and all applicable software upgrades;
Evolt means Evolt IOH LLC, a Delaware limited liability company;
Financial Year means a period from and including 1 July in a year to and including 30 June of the following year;
Intellectual Property means any Confidential Information, copyright material, moral rights, inventions (including patents), trademarks, business name registrations, service marks, designs, circuit layouts and performance protection (whether or not now existing and whether or not registered or registrable) in relation to Evolt or as otherwise required;
Owner means Evolt and/or its supplier, licensor or another owner of the Intellectual Property included with, incorporated in or otherwise related to Products and Services or disclosed pursuant to these Terms and Conditions;
Premium Services includes the Evolt Insights Dashboard and any other premium offering extended by Evolt to its customers from time to time;
Product includes the Evolt 360, Equipment and all other current and future Evolt products;
Recipient means the recipient of Confidential Information pursuant to the Terms and Conditions;
Services means all Evolt’s cloud or mobile applications, websites, online forums and communities, provided via any forum or platform; and
Subscription Agreement means an agreement for software and cloud-based services offered by Evolt IOH Pty Ltd which must be separately accepted and separately entered into by you in order for you to obtain such software and cloud-based services in connection with the Product.
2. NO MEDICAL ADVICE
2.1 Evolt is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using the Products and Services, engaging in an exercise program, or changing your diet. If you experience a medical emergency, stop using the Products and Services and consult with a medical professional.
2,2 Evolt, its affiliates, licensors and suppliers are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Products and Services. If you engage in any exercise program you receive or learn about through Evolt, you agree that you do so at your own risk and are voluntarily participating in these activities.
3. CONDITIONS OF PURCHASE OF PRODUCTS
3.1 Products and Services are designed for users over the age of eighteen (18) years. You must be at least eighteen (18) years of age (or such majority age as required by your jurisdiction) to use any of Products and Services. In the event that You are under the age of eighteen (18) You may only use the Products and Services while under appropriate adult supervision.
3.2 Evolt shall accept orders placed via its website, online platforms or via telephone order subject to these Terms and Conditions.
3.3 Receipt of full payment of your order by Evolt is evidence of your acceptance to be bound by these Terms and Conditions, which can only be modified by written agreement between You and Evolt.
3.4 If applicable, any Products ordered by You from Evolt are at Your own risk from the moment they are picked up by a courier or other carrier from Evolt to be delivered to You.
3.5 All clerical errors are subject to correction and will not bind Evolt.
4. PRICE AND PAYMENT
4.1 The price of any of the Products and Services advertised by Evolt is subject to change at the sole discretion of Evolt.
4.2 The price of any of the Products and Services is exclusive of all applicable taxes, including without limitation, sales or value-added tax. You shall be responsible for all taxes associated with Products and Services other than U.S. taxes based on Evolt’s net income.
4.3 Full payment for a Product must be received by Evolt before the Product will be delivered to You and all Products remain the Property of Evolt until such payment is received by Evolt in full.
4.4 Once Evolt has received payment in full for a Product, subject to section 7 below, You cease to have any right to cancel or vary Your order for a Product.
4.5 By downloading, signing up to or using any Premium Service, you agree to pay all fees and other incurred charges associated with those Premium Services, including any Annual Fees.
4.6 All Annual Fees are payable in advance and will be billed automatically via the elected payment methods at the start of each Financial Year.
4.7 Premium Services (such as Evolt Insights) will auto-renew until you elect to cancel your access to Premium Services. You may cancel Your Premium Services at any time after the 12 month subscription. Once Your cancellation has been processed, no further charges will be levied against your account. The cancellation of Your Premium Services will go into effect at the end of the relevant Financial Year for which You have already paid. You will continue to have full access to all Premium Services for the duration of the relevant Financial Year.
4.8 Where You fail to pay the Annual Fee or any other associated costs of a Premium Service, Evolt may make reasonable efforts to notify You. However, Evolt reserves the right to disable or terminate Your access to Premium Service without notice to You.
5. SHIPMENT AND DELIVERY
5.1 Upon accepting an order for Products, Evolt will:
(a) execute all orders received within a reasonable time; and
(b) use all reasonable endeavors to deliver Products to You within two (2) to eight (8) weeks of the order being placed.
5.2 Despite the preceding section 5.1, you acknowledge that all schedule shipment dates are an estimate only.
5.3 You will be charged shipping and handling charges incurred with respect of the Product and its delivery to You including but not limited to any import duty, taxes and other mandatory fees related to international shipment (if applicable).
5.4 In no event will Evolt be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
6. SUPPORT AND TRAINING – EVOLT 360
6.1 Upon the purchase of Your first Evolt 360 You will be entitled to:
(a) access to a full-time support team and training with respect to the proper and recommended use of Evolt360.
(b) a technical support lead/ account manager for a period of up to two (2) months after the purchase of an Evolt 360.
7. DEFECTIVE PRODUCTS AND RETURNS
7.1 Evolt shall accept return of any Product alleged by You, acting reasonably and in good faith, to be a Defective Product within the applicable warranty period as provided under these Terms and Conditions. Upon Evolt confirming that the Product in question is a Defective Product, Evolt will promptly re-supply a replacement or equivalent Product;
7.2 Shipping and handling charges may apply except where prohibited by applicable law.
7.3 Any replacement Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, or for any additional period of time that may be required by applicable law.
7.4 Evolt will not accept liability for any loss incurred by You following, or in the event of:
(a) damage incurred during shipment and/or delivery;
(b) damage, vandalism, neglect, fair wear and tear, improper or unintended use of the Product;
(c) freight delay of the Product, consumables or replacement parts; or
(d) repairs and maintenance delays.
7.5 Evolt does not offer refunds on any paid Products or Services.
8. WARRANTY, MAINTENANCE AND REPAIR OF PRODUCTS
8.1 All warranties provided for Products are provided on the terms of the original supplier/manufacturer.
8.2 You acknowledge and agree that, with the exception of Evolt 360, Evolt is not obligated to provide any further warranty in addition to those warranties (if any) provided by the original supplier/manufacturer of the Products.
8.3 Evolt warrants to the original purchaser that Evolt 360 shall be free from defects in materials and workmanship under normal use for a period of one (1) year warranty period from the date of purchase (‘Evolt Warranty’).
8.4 You agree that this Evolt Warranty may be voided by any replacement, alteration, addition, or material change made to the Product without the prior written consent of Evolt.
8.5 To obtain warranty service for a Defective Product, which is the sole remedy provided to You for a Defective Product under these Terms and Conditions, You must first contact Evolt’s Customer Service and deliver the Product, in either its original packaging or packaging providing an equal degree of protection, to the address specified by Evolt. As may be required by applicable law, Evolt may require you to furnish proof of purchase details and/or comply with other requirements before receiving warranty service.
8.6 You warrant and represent that You have taken a backup any data, software, or other materials You may have stored or preserved on the Product. You acknowledge that any data, software, or other materials stored on the Product may be lost or reformatted during warranty service, and that Evolt will not be responsible for any such loss.
8.7 This warranty applies only to the original purchaser of the Defective Product that was purchased from Evolt and manufactured by or for Evolt. Without limiting this section, the warranty does not apply to any:
(a) Evolt’s products and services other than the Products;
(b) non-Evolt products, even if included or sold with a Product, including, without limitation, any counterfeit products;
(c) products that are, or Evolt reasonably believes to be, stolen;
(d) consumables (such as batteries); or
(e) software, even if packaged or sold with the Product or embedded in the Product.
8.8 IMPORTANT DISCLAIMER: EXCEPT AS STATED IN THIS SECTION 8, EVOLT MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EVOLT’S PRODUCTS, INCLUDING ANY ACCESSORIES, PARTS AND COMPONENTS, ARE SOLD “AS IS.” EVOLT ALSO HEREBY DISCLAIMS AND EXCLUDES ALL OTHER OBLIGATIONS OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY PRODUCT, INCLUDING BUT NOT LIMITED TO: (A) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF EVOLT OR ITS SUPPLIERS (WHETHER ACTIVE, PASSIVE OR IMPUTED); AND (B) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY EVOLT PRODUCT. Some jurisdictions do not allow limitations on implied warranties, so the above limitation may not apply to you.
8.9 Evolt’s personnel and agents are not authorized to alter the disclaimer of warranty contained in this Section 8.
8.10 All Products are sold for commercial use only and are not intended for use by consumers. Accordingly, Evolt disclaims all implied warranties to consumers, as defined by the Magnuson-Moss Act, including without limitation the warranties of merchantability and fitness for a particular purpose.
9. YOUR ACCOUNT
9.1 You may be required to create an online account to participate in the Service. When creating an account with Evolt, You agree that:
(a) the information provided in the creation of your account was and is accurate and complete information;
(b) You are responsible for maintaining the confidentiality of your account and any information contained within your account;
(c) You will immediately notify Evolt should You suspect at any time that the security or confidentiality of your account has been breached.
10. USE OF YOUR INFORMATION
10.1 When you generate information and content through the use of the Services, You grant Evolt a non-exclusive, irrevocable, royalty-free limited license to use, host, store, reproduce, process, distribute, perform and display such information.
10.2 The rights You grant in the license contemplated by section 10.1 above are for the limited purposes of allowing Evolt to operate the Services in accordance with their functionality, improve the Services, develop new Services, and to allow other users to use the Services in accordance with their intended function.
11. SERVICE UPDATES, CHANGES AND LIMITATIONS
11.1 You acknowledge that the Products and Services may change in their form and functionality without prior notice to You.
11.2 Evolt reserves the right to develop and update the Products and Services or components of the Products and Services as it sees fit.
11.3 You acknowledge that certain elements of the Products and Services may not operate as intended if You do not facilitate or install updates as and when they become available.
11.4 You agree and consent to all future updates to the Products and Services and agree that these Terms and Conditions shall be equally applicable to all updates.
12. SECURITY AND DATA PROTECTION
12.1 Evolt will use its commercially reasonable endeavors to protect the security of Your personal data, content and account, however, Evolt cannot guarantee that unauthorized third parties will not attempt to evade or hack Evolt’s security measures.
13.2 While Evolt implements measures to help protect Your information while in Evolt’s control, You are solely responsible for maintaining the security of Your account passwords and for any use of Your account. You also agree to promptly notify Evolt of any suspected unauthorized use of your account or other information.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 Notwithstanding anything contained within these Terms and Conditions, the parties acknowledge that all Intellectual Property is retained by its Owner, and that any Intellectual Property that has become known to a Recipient throughout the course of the agreement between You and Evolt is on a revocable, non-exclusive, limited license to use basis only, with the ownership of Intellectual Property to be at all times retained by the Owner.
14.2 Should agreement between Yourself and Evolt be terminated for any reason, any use of the Intellectual Property by You and any Recipient shall not be permissible unless written consent from the Owner of the Intellectual Property has been given to the Recipient for the use.
15. LIABILITY LIMITATIONS
15.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF EVOLT (INCLUDING ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, ADVISORS AND PARENT, SUBSIDIARY AND AFFILIATED COMPANIES)
UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR
OTHERWISE, BUT EXCLUDING LIABILITY OF EVOLT FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER SECTION 8 ABOVE)) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE TOTAL PURCHASE PRICE THERETOFORE PAID BY YOU TO EVOLT WITH RESPECT TO THE PRODUCTS AND SERVICES GIVING RISE TO SUCH LIABILITY OR (B) ONE THOUSAND DOLLARS ($1,000). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL EVOLT (INCLUDING ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, ADVISORS AND PARENT, SUBSIDIARY AND AFFILIATED COMPANIES) BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL
DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), WHETHER OR NOT RELATING TO OR IN ANY MANNER RESULTING
FROM OR ASISING OUT OF ANY NONCONFORMITY OF EVOLT PRODUCTS TO THE WARRANTY PROVIDED BY EVOLT, IF ANY, ANY DEFECT IN MATERIAL AND WORKMANSHIP, ANY PERFORMANCE OR NONPERFORMANCE by EVOLT OF ANY OF THE OBLIGTIONS OR DELAY OF DELIVERY OR FAILURE TO DELIVER FOR WHATEVER CAUSE AND REGARDLESS OF WHETHER EVOLT (A) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) IS NEGLIGENT.
15.2 This limitation of liability is a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between Evolt and You, without which Evolt would not have agreed to provide the Products and Services at the price charged.
16. INDEMNITY AND RELEASE
16.1 To the maximum extent possible under the applicable law, You release and indemnify Evolt from and against any costs, damages, loss or liability of any kind (including legal costs and disbursements in defending or settling a claim giving rise to such legal costs and disbursements) however suffered or incurred by You by virtue of Your purchase, download or use of the Products and Services. You shall further indemnify, defend with competent and experienced counsel and hold harmless Evolt, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, 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 and disbursements and court costs) to the extent arising from or in connection with (i) negligence or willful misconduct committed by You and/or Your principals, agents, employees,
representatives, or contractors; (ii) use of Products and Services in combination with equipment or software not supplied by Evolt; (iii) use of Products and Services in an application or environment for which it was not designed; or (iv) modifications of Products and Services by anyone other than Evolt without Evolt’s prior written approval.
17. DISPUTE RESOLUTION
17.1 If a dispute arises between You and Evolt in connection with these Terms and Conditions, either party can give to the other party written notice of the dispute which must adequately identify and provide details of the dispute (‘Dispute Notice‘).
17.2 Within five (5) Business Days after receipt of a Dispute Notice, the parties shall convene a ‘without prejudice’ conference, in an attempt to resolve the dispute, between their authorized representatives who shall have authority to agree to any resolution of the dispute.
17.3 If the ‘without prejudice’ conference fails to wholly resolve the dispute, Evolt may give You written notice referring the dispute to mediation within a further five (5) Business Days (‘Notice of Mediation‘).
17. 4 Within seven (7) Business Days from the giving of the Notice of Mediation, Evolt shall give You written notice nominating the identity of the Mediator (‘Mediator‘) and the Mediator’s requirement for security for costs (‘Notice of Nomination‘).
17.5 Within three (3) Business Days of Evolt’s receipt of the Notice of Nomination, You and Evolt shall each pay to the Mediator one half of the Mediator’s required security for costs.
17.6 If the mediation fails to resolve the dispute within a reasonable period of time not to exceed ninety (90) days, then either party may initiate proceedings in a court of competent jurisdiction as set forth in Section 19.9.
18. APP STORES
18.1 If Evolt applications are downloaded from any online app store, You acknowledge and agree that:
(a) these Terms and Conditions are an agreement between Evolt and You, and not with any app provider or store; and
(b) You must also comply with all applicable third-party terms of service when using the applications of third parties in connection with Evolt applications.
19.1 Assurances. Each party shall take all steps, execute all documents and do everything reasonably required by the other party to give effect to any of the transactions contemplated by these Terms and Conditions (“Agreement”).
19.2 Severance. Any provision of this Agreement which is prohibited or unenforceable in the jurisdiction specified in section 19.9 below will beineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
19.3 Amendment. This Agreement may be amended only by another agreement executed by all parties.
19.4 Costs. Each party shall bear its own costs.
19.5 Giving Effect to this Agreement. Each party must do everything reasonably practicable to comply with and give effect to the terms of this Agreement.
19.6 Variation. No variation, modification or waiver of any provision in this Agreement, nor consent to any departure by any party from any such provision, will be of any effect unless it is in writing, signed by the parties or (in the case of a waiver) by the party giving it. Any such variation, modification, waiver or consent will be effective only to the extent to or for which it may be made or given.
19.7 No Interpretation Against Drafter. Each party recognizes that this Agreement is a legally binding contract and acknowledges that such party has had the opportunity to consult with legal counsel of choice. In any construction of the terms of this Agreement, the same shall not be construed against either party on the basis of that party being the drafter of such terms.
19.8 Waivers. A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
19.9 Governing Law and Forum. This Agreement and performance under it shall be governed by the laws of the State of Delaware as applied to agreements among Delaware residents without regard to its choice of law principles. The UN Convention for International Sale of Goods shall not apply to this Agreement. Each party irrevocably accepts the exclusive jurisdiction and venue of the state and federal courts located in Dover County, State of Delaware in connection with any dispute, breach, claim or counterclaim arising under or in connection with this Agreement, provided that Evolt may seek injunctive or other equitable relief for a breach of this Agreement by You in any court of competent jurisdiction. You agree to submit to the exclusive personal jurisdiction of, and not object to venue in, such courts and, if You do not reside or have a registered agent for service of process in the State of Delaware, You hereby appoint the Secretary of State of Delaware to act as Your agent for service of process in the event of any litigation or claim arising out of or relating to this contract. IN THE EVENT OF ANY JUDICIAL PROCEEDINGS, THE PARTIES KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. In the event of any dispute adjudicated between the parties, whether in litigation or permitted appeal, the prevailing party shall be entitled to recover from the party not prevailing its reasonable attorneys’ fees and costs incurred in such proceeding. The parties agree that neither may bring a claim nor assert a cause of action against the other, in any forum or manner, more than one (1) year after the cause of action accrued, except where the party could not have reasonably discovered the wrong giving rise to the claim within one year.
19.10 Survival. Any indemnity or any obligation of confidence under this Agreement is independent and survives termination. Any other obligation or term of this Agreement by its nature intended to survive termination survives termination.
19.11 No Merger. The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
19.12 Entire Agreement. This Agreement contains all the contractual arrangements of the parties with respect to the items to which it relates, and supersedes all earlier conduct (including any agreements in relation thereto) by the parties with respect to those items.
19.13 References in marketing collateral. You consent to Evolt using, on its website, Evolt Active app, social media pages, and in its other proposals, marketing materials and marketing collateral: (a) your name; (b) any associated logos, and/or registered or unregistered marks, and to that extent you grant Evolt an irrevocable, non-exclusive, royalty free license (or sub-licence, as applicable) to use your logo and/or trade mark in its marketing collateral; and (c) any “success story” or quote that you provide to Evolt.
19.14 Facsimile and Email Form. Both parties acknowledge that the original of this Agreement may be in facsimile or email form and agree to accept the facsimile or email as an original which is binding on the parties.
19.15 Electronic Transactions. The information communicated on or through Evolt’s website constitutes an electronic communication. When You communicate with Evolt through the Evolt’s website or via other forms of electronic media, such as e-mail, You are communicating with Evolt electronically. You agree that Evolt may communicate electronically with You and that such communications, as well as order forms, notices, disclosures, agreements, and other communications that Evolt provides to You electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication. The parties agree that the electronic signatures appearing on any pdf or other copies of agreements and related order forms and invoices, website form submissions and electronic communications pursuant to this Agreement are the same as handwritten signatures for the purposes of validity, enforceability and admissibility pursuant to the Electronic Signatures in Global and National Commerce (ESIGN) Act of 2000, and Uniform Electronic Transactions Act (UETA) model law and/or similar applicable state and federal laws.
LAST REVISED April 13th, 2021