Terms and Conditions

TERMS & CONDITIONS

Last Updated: May 1, 2019

Thank you for choosing EvolutionVN for your exercise needs. When you use our products and services, you are agreeing to our terms, so please read these Terms of Service carefully as they contain important information regarding your legal rights and obligations. Certain capitalized words below are defined in the last Section (Definitions).

EvolutionVN provides exercise equipment and online fitness programs designed specifically to make exercise attainable, accessible, convenient, and fun. Please also see the Evolution Home Gym (“Evolution”) User Guide for best practices in using the physical equipment.

These Terms of Service (“Agreement”) apply to any use of and access to the Evolution, our Website or Apps (collectively, “Services”) by you and any third-party using our Services. By accessing or using the Services, you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.

This Agreement is effective (“Effective Date”) on the earlier of (a) the date you accept this Agreement by clicking an “I Agree” button or otherwise indicate that you accept this Agreement (including through an Order Form), or (b) the date you first access or use the Services.

 

SECTIONS

1) General Terms

2) Products and Services

3) Fees, Payment, and Refunds

4) Contract and Delivery

5) Disclaimer Regarding Medical and Professional Advice

6) Intellectual Property Rights

7) Data Ownership and Use

8) Confidential Information

9) Term, Termination, and Suspension

10) Warranties and Disclaimer

11) Indemnification

12) Limitations and Exclusions of Liability

13) Miscellaneous

14) Definitions

 

1) GENERAL TERMS

When you use our Services, you are entering into a legal agreement and you agree to all of these terms.

Agreement. This Agreement is a binding legal agreement between you and EvolutionVN Ltd. (“EvolutionVN, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and EvolutionVN are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.

You also agree to our Privacy Policy.

Our Privacy Policy explains how we collect and use information that’s submitted to the Services. By using the Services, you are indicating that you have read the Privacy Policy and agree to its terms.

This Agreement applies to any use of the Services, whether in connection with a payment plan or a free trial.

We continuously strive to improve our products and services, and as our business evolves, this agreement may change. This section describes how we can change the agreement.

Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to our Website, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by emailing hello@evolutionVN.com. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement that’s posted on our Website. The date at the top of the Agreement indicates when it was last changed.

Additional terms apply to certain products that we provide.

Supplemental Terms. Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.

 

2) PRODUCTS AND SERVICES

Availability. All purchases through our website are subject to product availability. We may, in our sole discretion, limit or cancel the quantities offered on our website or limit the sales of our products or services to any person, household, geographic region or jurisdiction.

Prices. Prices for our products are subject to change, without notice. Unless otherwise indicated, prices displayed on our website are quoted in Canadian dollars.

Right to Refuse. We reserve the right, in our sole discretion, to refuse orders, including without limitation, orders that appear to be placed by distributors or resellers. If we believe that you have made a false or fraudulent order, we will be entitled to cancel the order and inform the relevant authorities.

Product Color. We do not guarantee the accuracy of the color or design of the products on our website. We have made efforts to ensure the color and design of our products are displayed as accurately as possible on our website.

Third Party Offerings. Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments, or other obligations with respect to Services hereunder. The availability of any Third-Party Offerings through the Services does not imply EvolutionVN’s endorsement of or affiliation with the provider. EvolutionVN does not control Third Party Offerings and will have no liability to you in connection with any Third-Party Offerings. EvolutionVN has no obligation to monitor or maintain Third Party Offerings and may disable or restrict access to any Third-Party Offerings at any time. By using or enabling any Third-Party Offering, you are expressly permitting EvolutionVN to disclose Your Data or other information to the extent necessary to utilize the Third-Party Offering. YOUR USE OF THIRD-PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD-PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY OFFERINGS).

Recently Acquired Offerings. As an administrative courtesy to you, we may offer Recently Acquired Offerings to you through this Agreement before fully integrating, testing, and improving such offerings to meet our standards, which may take up to twelve (12) months. All representations and/or warranties made by us in this Agreement do not apply to such Recently Acquired Offerings.

Payment Processing. EvolutionVN offers the ability to process payments through the Services (“Payment Processing Services”). Payment Processing Services are provided by our third-party payment processing partners as Third-Party Offerings and any procurement by you will be subject to a separate merchant agreement which will be solely between you and the third-party processer.

At EvolutionVN’s sole discretion, you may be offered Payment Processing Services provided by PayPal (“EvolutionVN Payments”). EvolutionVN Payments are subject to the PayPal User Agreement and subject to certain fees and surcharges communicated to you during the enrollment process and as may be updated by EvolutionVN from time to time. By enrolling in EvolutionVN Payments, you agree to be bound by the PayPal User Agreement, as the same may be modified by PayPal from time to time. As a condition of EvolutionVN enabling payment processing services through PayPal, you agree to provide EvolutionVN accurate and complete information about you, and you authorize EvolutionVN to share it and transaction information related to your use of the payment processing services provided by PayPal pursuant to our Privacy Policy. To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting the corresponding amounts from funds payable to you arising from the settlement of card transactions through EvolutionVN Payments. Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions. If the settlement amounts are not sufficient to meet your obligations to us, we may charge or debit the bank account or credit card registered in your account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest. Additionally, we may require a personal guaranty from you. If we require a personal guarantee we will specifically inform you. In addition to the amount due, delinquent accounts may be charged with fees that are incidental to the collection of delinquent accounts and chargebacks including, but not limited to, collection fees and convenience fees and other third parties-charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to EvolutionVN by you. Such communication may be made by EvolutionVN or by anyone on its behalf, including but not limited to a third-party collection agent.

 

3) FEES, PAYMENT, AND REFUNDS

Services Fees. Fees for the Services (“Fees”) are set forth on our website at https://www.EvolutionVN.com/register (or such other URL as specified by EvolutionVN), as may be updated by EvolutionVN from time to time, or as otherwise stated on an Order Form.

This describes our fees and your payment obligations. Under certain circumstances, you may be entitled to a refund; please see below section on Returns and Refunds.

Payment Terms. You agree to pay EvolutionVN the Fees and any other applicable fees stated on an Order Form or otherwise specified in this Agreement. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable unless otherwise stated in the below section on Returns and Refunds. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. You will provide EvolutionVN with valid and updated credit card information or another form of payment acceptable to EvolutionVN. If you provide credit card information, you represent that you are authorized to use the card and you authorize EvolutionVN to charge the card for all payments hereunder. By submitting payment information, you authorize EvolutionVN to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by EvolutionVN for purposes of acknowledging or completing any payment.

If you have opted for the monthly payment option, you agree to 12 payments of $89.99 (“Payment Plan”). Whether you opt for a one-time payment of $997.99 or the Payment Plan, you will receive an Evolution and one-year access to the online programs. Ownership of the Evolution will not pass to you until the completion of the Payment Plan.

Free, Trial and Beta Services. EvolutionVN may in its sole discretion offer free, trial or beta Services from time to time at no charge. Notwithstanding anything to the contrary herein: (a) any free, trial or beta Services are provided “AS IS” with no warranties of any kind; and (b) EvolutionVN may discontinue any free, trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. EvolutionVN will have no liability for any harm or damages suffered by you or any third party in connection with any free, trial or beta services. Upon completion of the free, trial, or beta Services, if you choose not to proceed with the Payment Plan, the Evolution and all accessories must be returned in original condition. Please contact us at hello@evolutionVN.com to arrange pick up.

Refunds. We offer a 14-day money back guarantee if you're not 100% satisfied with your Evolution and the associated Services. There is a flat fee of $50 for all returns. The Evolution and all accessories must be returned in original condition. Please contact us at hello@evolutionVN.com to arrange pick up.

Overdue Charges. Any amounts not received by the applicable due date may accrue late interest at 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by EvolutionVN within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and EvolutionVN will be entitled to either suspend the Services or terminate the Agreement in accordance with the below Section on Term, Termination and Suspension.

Changes in Fees. Upon notice to you, EvolutionVN may increase any fees specified in an Order Form, provided the increase will not become effective until the expiration of the current plan. EvolutionVN may increase any fees that are not specified in an Order Form at any time, with or without notice to you. EvolutionVN may also convert any free, trial or beta Service into a Service subject to a Subscription Fee upon notice to you, and your rights to such Service will be suspended if you do not pay the Subscription Fee.

Payment Errors. If you believe a payment has been processed in error, you must provide written notice to EvolutionVN within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by EvolutionVN within such thirty (30) day period, the payment will be deemed final.

 

4) CONTRACT AND DELIVERY

Terms. These terms apply to any purchases you make or orders you place via the Website. For the avoidance of doubt, no other terms or offers (including, but not limited to, any promoted, displayed or offered via Live Events) apply to any Website order or purchase.

Contract. A contract for the sale and purchase of goods will only be formed with you if we, at our discretion, accept an order for goods from you. Acceptance will be by way of the delivery to you of the Evolution. We may at our discretion reject an order for goods (in which case we will refund any amounts paid by you in respect of those goods). You may not revoke an order for goods (unless we agree otherwise).

Agreement. If you opt for the Payment Plan, the Evolution will be delivered after you have paid the first installment. By choosing the Payment Plan, you acknowledge that the title of the Evolution will not pass to you until the final payment has been made.

Delivery. We will deliver the Evolution to the address provided by you when you placed your order. All orders require a signature on delivery. Please ensure that there is someone to accept delivery at the agreed upon time of delivery. We aim to have your product delivered to you within 3 to 7 working days from the date of your confirmed purchase. If you have not received your product within 7 working days, please contact us at hello@evolutionVN.com.

 

5) DISCLAIMER REGARDING MEDICAL AND PROFESSIONAL ADVICE

Disclaimer. The Service and material provided on the Service, including, without limitation, in Training Programs are for general informational purposes only – EvolutionVN is not a health care practitioner and has no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise or treatment on a medical condition. EvolutionVN is not intended to be a substitute for professional medical or psychological advice, diagnosis, or treatment. You are responsible for your own health, diet research and decisions; therefore EvolutionVN requires that you consult with your physician or health care practitioner before dieting, making any personal health decisions, or following any training instructions you receive through the Service or participating in any event announced through the Service. By using or registering to use the Service, you certify that you are a healthy individual or have received consent from your physician to participate in the programs, workouts, and exercises that you participate in in connection with the Service. You should understand that when participating in any exercise or exercise program, there is the possibility of physical injury or death.

Risk. EvolutionVN is not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the Service, or any health problems that may result from the Training Programs, products, or events you learn about through the Service or EvolutionVN. If you engage in any exercise program you receive through the Service, you agree that you do so at your own risk, and are voluntarily participating in these activities. You are encouraged to consult with your health care provider with any questions or concerns you may have regarding any health condition.

Attention. Not all workout routines, exercises and/or activities are suitable for everyone. Always consult a physician before starting a workout program, changing your workout routine, or changing your diet. If you feel discomfort or pain, you must discontinue any exercise and consult a medical expert.

 

6) INTELLECTUAL PROPERTY RIGHTS

This describes our intellectual property rights in the Services.

EvolutionVN Intellectual Property. EvolutionVN or its affiliates own all right, title and interest in and to the Services, the EvolutionVN Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, EvolutionVN and its affiliates reserve all rights, title and interest in and to the Services, the EvolutionVN Data and Aggregated Data, including, without limitation, all related intellectual property rights. EvolutionVN’s service marks, logos and product and service names are owned by EvolutionVN. You agree not to display or use any EvolutionVN Marks in any manner without EvolutionVN’s express prior written permission. Any trademarks, service marks and logos associated with a Third- Party Offering may be the property of the third-party provider, and you should consult with their trademark guidelines before using any of their marks.

 

7) DATA OWNERSHIP AND USE

You own all data you provide to us, but you also grant us a license to use it for certain purposes, for example, to improve our products or to provide you with complementary products of our partners.

Your Data. As between you and EvolutionVN, you own all right, title and interest in Your Data. You hereby grant to EvolutionVN a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing EvolutionVN’s products and services and/or complementary products and services of our partners. You represent and warrant to EvolutionVN that you have all rights necessary to grant the licenses in this Section, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.

We will own all Aggregated Data.

Aggregated Data. You authorize EvolutionVN to aggregate or anonymize Your Data or other data in connection with the Agreement, and EvolutionVN will own all Aggregated Data. You agree that nothing in this Agreement will prohibit EvolutionVN from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you.

Our Privacy Policy covers how we collect and use personal information.

Personal Information. Our Privacy Policy governs how we collect and use personal information that is submitted through the Services. By accessing or using the Services, you agree to that you have read and accept our Privacy Policy. Without limitation, you acknowledge and agree that EvolutionVN may process Your Data for the purpose of providing the Services and related functions, such as billing and customer support, as well as to send direct marketing communications to you, data science and product or service improvement and reporting.

Protection and Security. During the Payment Plan, EvolutionVN will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data.

We will notify one another if either of us becomes aware that Your Data has been compromised.

Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.

We are not responsible for resolving or intervening in any dispute over Your Data.

 

8) CONFIDENTIAL INFORMATION

This describes the confidentiality obligations we have to one another under the agreement.

A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party's prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section will restrict EvolutionVN with respect to EvolutionVN Data or Aggregated Data.

 

9) TERM, TERMINATION, AND SUSPENSION

Term. Unless otherwise specified in an Order Form, the term of this Agreement will be 12 months from the first payment (“Payment Term”). The Payment Term commences on the date of the first payment and will automatically renew on a monthly basis until all 12 payments have been made.

We have the right to end the Agreement immediately if you breach it.

Termination for Cause. EvolutionVN may terminate this Agreement and/or any subscription, effective immediately upon notice to you, if you are in material breach of this Agreement. In the event of a termination pursuant to this Section, in addition to other amounts you may owe EvolutionVN, you must immediately pay any unpaid Fees associated with the remainder of the Payment Term. In no event will any termination relieve you of your obligation to pay any fees payable to EvolutionVN for the period prior to the effective date of termination. Upon termination, it will also be your responsibility to make arrangements for the return of the Evolution and its accessories.

This describes what will occur and the rights that apply when the Agreement is terminated.

Rights on Termination or Expiration. Upon termination or expiration of this Agreement (a) all Order Forms will automatically terminate and be of no force or effect; (b) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; (c) you will be responsible to make arrangements for the return of the Evolution and its accessories, and (d) except as specified in the following paragraph, EvolutionVN will have no obligation to maintain your Services.

We have the right to suspend or terminate the Services at any time if we detect harmful or illegal activity under your account.

 

10) WARRANTIES AND DISCLAIMER

You are responsible for keeping your account contacts and other account information up to date, and you must notify us if anything changes.

Accuracy of Your Account Information. You agree to provide EvolutionVN with complete and accurate account information, including your legal name, street address, e-mail address, bank account, and such other information as may be requested by EvolutionVN (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify EvolutionVN in writing if any Account Information changes. You agree that EvolutionVN has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information.

DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THE SECTION ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVOLUTIONVN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. EVOLUTIONVN DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND ANY PRODUCTS AND THIRD-PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH EVOLUTIONVN AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “EVOLUTIONVN PARTIES”).

Interpretation. The contents on this Website are provided for your information. Nothing contained on this Website shall be interpreted as advising you.

 

11) INDEMINIFICATION

You agree to defend and indemnify EvolutionVN, and hold us and our affiliates harmless, and our and their respective directors, officers, agents, contractors, and employees against any losses, liabilities, claims, expenses (including legal fees) in any way arising from, related to or in connection with your use of our website, your violation of the Terms, or the posting or transmission of any materials on or through the website by you, including but not limited to, any third-party claim that any information or materials provided by you infringe upon any third-party proprietary rights.

 

12) LIMITATIONS AND EXCLUSIONS OF LIABILITY

These are the limits of legal liability we may have to you.

EVOLUTIONVN EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY EVOLUTIONVN. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE EVOLUTIONVN PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH EVOLUTIONVN AND THE EVOLUTIONVN PARTIES.

THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

13) MISCELLANEOUS

Alberta law applies to this Agreement.

Governing Law. Any disputes arising out of or relating to the Terms, the Privacy Policy, use of our website, or our products or services offered on our website will be resolved in accordance with the laws of the Province of Alberta without regard to its conflict of law rules. Any disputes, actions or proceedings relating to the Terms or your access to or use of our website must be brought before the courts of the Province of Alberta in the City of Calgary, Alberta and you irrevocably consent to the exclusive jurisdiction and venue of such courts.

In the unlikely event we end up in a legal dispute, you agree we will first attempt to resolve it through this informal process.

Mandatory Informal Dispute Resolution. If you have any dispute with EvolutionVN arising out of or relating to this Agreement, you agree to notify EvolutionVN in writing with a brief, written description of the dispute and your contact information, and EvolutionVN will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.

If we can’t resolve a dispute after following the process above, then we must resolve through arbitration and not in court. 

Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND EVOLUTIONVN, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO THE SECTION ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND EVOLUTIONVN AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The applicable governing law will be as set forth in Section 14.1 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.

Entire Agreement. This Agreement, together with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and EvolutionVN with respect to the subject matter hereof. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between EvolutionVN, on the one hand, and you or any Affiliate, on the other hand.

Waiver and Severability. No waiver of any provision of this Agreement by EvolutionVN will be effective unless in writing and signed by EvolutionVN. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. 

Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without EvolutionVN’s prior written consent. EvolutionVN may assign, transfer or sublicense any or all of EvolutionVN’s rights or obligations under this Agreement without restriction.

This explains how we can send each other notices in connection with this Agreement.

Notices. Any notices provided by EvolutionVN under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from EvolutionVN through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to EvolutionVN under this Agreement must be delivered via email to hello@evolutionVN.com.

We are not liable for things that are out of our control like natural disasters.

Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving EvolutionVN’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law. 

Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and EvolutionVN.

 

14) DEFINITIONS

For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:

Aggregated Data” means anonymized or aggregated data derived by or through the operation of the Services that is created by or on behalf of EvolutionVN and that does not reveal any personally identifying information.

Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and you. Cardholder Data is a subset of End User Data.

“Documentation" means EvolutionVN’s online user guides, documentation, and help and training materials, as may be updated by EvolutionVN from time to time, accessible at www.evolutionVN.com, and any other materials provided by EvolutionVN as part of the Services.

Order Form” means a separate ordering document, invoice, online form, or other documentation that specifies the Services ordered or purchased hereunder, the applicable fees (or if the Services are free), and other terms as agreed to between the Parties.

Privacy Policy” means the EvolutionVN Privacy Policy accessible at www.evolutionVN.com/privacy-policy (or such other URL as specified by EvolutionVN), as may be updated by EvolutionVN from time to time.

Services” means the Evolution Home Gym, the Website and the Apps.

Third Party Offerings” means any third-party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.

Website” means www.evolutionVN.com

Your Data” means any data, information or material provided or submitted or made available by you to the Services. Your Data may include Personal Data and Cardholder Data.