Terms of Use


Date Last Revised: June 26, 2013

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THIS WEB SITE. This Web Site is provided for your information and your purchase of products, and we hope you enjoy using it. Your use of this Web Site constitutes your agreement with eos Products, LLC (“EOS,” “we,” “us,” or “our”), to be bound by, and to act in accordance with, these terms of use (the “Terms of Use”). These Terms of Use constitute a legal agreement between you and EOS. If you do not agree to these Terms of Use, do not use this Web Site. YOU AGREE THAT THESE TERMS OF USE ARE ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU AND CONSTITUTE THE ENTIRE AND COMPLETE AGREEMENT BETWEEN US REGARDING YOUR USE OF THIS WEB SITE AND SUPERSEDE ANY PRIOR OR OTHER COMMUNICATIONS. Please print a copy of these Terms of Use for your records.

As used in these Terms of Use, the words “you” and “your” refer to you, the user of this Web Site, as the party agreeing to these Terms of Use. The term “Web Site” means the web site at www.evolutionofsmooth.com, including sub-domains of evolutionofsmooth.com and pages within any such web site and any equivalent, mirror, replacement, substitute or backup for such web site. It does not apply to our other web sites on domains other than evolutionofsmooth.com, which may have their own terms of use. The use of the word “including” in these Terms of Use to refer to specific examples will be construed to mean “including, without limitation” or “including but not limited to” and will not be construed to mean that the examples given are an exclusive list of the topics covered.


1. Continuing agreement.


You agree that your use of this Web Site will always be subject to the most current version of these Terms of Use at the time of such use. EOS may change or revise these Terms of Use from time to time by updating this posting. You agree that all notices posted on this Web Site constitute valid notices to you under any legal requirements. You are encouraged to visit this area each time you visit this Web Site to keep up to date with the current Terms of Use governing your use of this Web Site. Your continued use of this Web Site after any such change or revision reaffirms your continuing agreement to the then-current Terms of Use and all other policies or notices posted on this Web Site.


2. Use of site and site materials.


Depending on your activities when visiting this Web Site, you may be required to agree to additional terms and conditions as indicated on this Web Site.

You have a non-exclusive, nontransferable, limited and revocable right to use this Web Site solely for your own personal purposes. EOS owns all right, title and interest (including all copyright, trade secret, design, patent and other rights) in and to this Web Site (other than Third Party Content (as defined below)) or has a right to use such material. EOS also owns or has a right to use all trademarks, service marks and trade names used on this Web Site. Nothing in this Web Site or these Terms of Use shall be deemed to confer on any person any license or right from EOS or any licensor with respect to any image, logo or name. No part of this Web Site may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way without the express prior written permission of EOS. Any unauthorized use or modification of the materials on this Web Site is a violation of EOS’s copyright and other proprietary rights. The use of any such material on any other web site or computer network or in any other manner without EOS’s prior written consent is strictly prohibited. Your use of the trademarks, service marks and trade names on this Web Site in any manner other than as authorized in these Terms of Use, or as authorized in writing by EOS, is strictly prohibited.


3. Privacy.


For information on how EOS collects, uses and protects the personal information you may provide on this Web Site, read EOS’s Privacy Policy available at http://evolutionofsmooth.com/privacy-policy-cookie-restriction-mode (the “Privacy Policy”). The Privacy Policy is incorporated by reference into these Terms of Use. Please print a copy for your records.


4. Accounts; passwords; security


In order to access or use some features of this Web Site, you may have to become a registered user. When you are setting up your account, you must give EOS accurate and complete information. This means that you cannot set up an account using someone else’s name or contact information, and in no event can you set up an account using a phony name or phony contact information. You are completely responsible for your account and everything that happens on your account. This means you need to be careful with your password. If you find out that someone is using your account without your permission, you must let EOS know immediately. You may not transfer your account to someone else. You will be liable for losses and damages incurred by EOS (or anyone else) due to the unauthorized use of your account.


5. Third party content; feedback, suggestions or ideas.


From time to time, this Web Site may display text, images, graphics, audio, video, links to other sites and other materials and content (“Content”) that were originally posted or otherwise made available on another site (e.g., Twitter or Facebook). As a consequence, you may see Content on this Web Site that has been made available by individuals not affiliated with EOS (“Third Party Content”). EOS does not endorse these individuals or their Content and EOS is not associated with any of the Third Party Content that may be displayed on this Web Site. EOS (and its affiliated companies, and its and their respective officers, employees or agents) shall not have any responsibility or liability of any nature whatsoever arising in connection with any Third Party Content.


If you give feedback, suggestions or ideas on this Web Site, such as recommendations for improvements or features, you hereby assign to EOS all right, title and interest in and to such feedback, suggestions and ideas, and such feedback, suggestions or ideas may be implemented as part of this Web Site or otherwise by EOS without any compensation or notice to you.


6. Geographic scope of site.


This Web Site is controlled and operated from within the United States of America. Unless otherwise specified on or by this Web Site, this Web Site is intended to promote only those EOS products that are sold by EOS in Canada and in the United States and its territories, and EOS makes no representation that materials in this Web Site or the products described thereby are appropriate or available for use in your location. All visitors to this Web Site are responsible for compliance with all local laws applicable to them with respect to the content and operation of this Web Site. By using this Web Site, participating in any Web Site activities and/or providing EOS with your personal information, you (a) consent to the transfers and processing of any information you provide to this Web Site; (b) acknowledge that U.S. law provides a lower standard of protection for personal data than the laws of various countries including, but not limited to, the European Union; and (c) understand that this Web Site will deal with your personal information in accordance with the Privacy Policy and U.S. law. Consequently, you hereby waive any claims that may arise under the laws and regulations that apply to you in any other country or jurisdiction.


7. Commercial Terms.


When you confirm a purchase transaction on this Web Site, you agree to be bound by and pay for that transaction. Your total price may include taxes, handling fees and shipping costs, which you are responsible for paying. Except as otherwise expressly specified, all sales are final.


The inclusion of any products or services on this Web Site at a particular time does not imply or warrant that these products or services will be available at any time. For example, products included on this Web Site may be unavailable, may have different attributes than those listed or may actually carry a different price than that stated on this Web Site. In addition, EOS may make changes in information about price and availability without notice. If you order something that becomes unavailable before it can be provided to you, your only remedy is to receive a refund of your purchase price.


While it is EOS’s practice to confirm orders by email, the receipt of an email order confirmation does not constitute EOS’s acceptance of an order or EOS’s confirmation of an offer to sell a product or service. EOS reserves the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. EOS also may require verification of information prior to the acceptance and/or shipment of any order. You may be presented with additional terms related to a specific purchase before you confirm the transaction (such as shipping terms for tangible goods). Those additional terms will also govern that transaction. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from this Web Site.

EOS makes commercially reasonable efforts to make product descriptions for items listed for sale on this Web Site as accurate as possible. Despite our efforts, the information on this Web Site may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currentness of any information on this Web Site. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. EOS makes all reasonable efforts to accurately display the attributes of its products, including the applicable colors; however, the actual color you see will depend on your computer system, and EOS cannot guarantee that your computer will accurately display such colors. If a product offered by EOS is not materially as described, your sole remedy is to return it in unused condition.

This Web Site may allow you to make payments using a number of different payment sources, like credit cards and debit cards. When you provide a payment source to EOS, you confirm that you are permitted to use that payment source. You also authorize EOS (and EOS’s designated payment processor) to collect and store it, along with other related transaction information. When you make a payment, you authorize EOS (and EOS’s designated payment processor) to charge the full amount to the payment source you designate for the transaction. If you pay by credit or debit card, EOS may obtain a pre-approval from the issuer of the card for an amount up to the amount of the purchase. EOS will bill your card at the time of purchase or shortly thereafter. If you cancel a transaction before completion, that pre-approval may result in your funds not otherwise being immediately available. If you pay by debit card and your payment results in an overdraft or other fee from your bank, you alone are responsible for that fee.

. If you pay by credit or debit card, EOS may obtain a pre-approval from the issuer of the card for an amount up to the amount of the purchase. EOS will bill your card at the time of purchase or shortly thereafter. If you cancel a transaction before completion or if a transaction is rejected by your bank or our payment processor, that pre-approval may result in your funds not otherwise being immediately available.

If you believe that an unauthorized or otherwise problematic transaction has taken place under your account, you agree to notify EOS immediately so that EOS may take action to attempt to prevent financial loss. To the fullest extent permitted by law, you waive all claims against EOS related to payments unless you submit the claim to EOS within 30 days after the charge.

Your only remedy for a technical failure or interruption of service is to request that your transaction be completed at a later time.

Your purchase of any products through this Web Site is also subject to the Shipping & Return Policies set forth on www.evolutionofsmooth.com/shipping-return-polices (“Shipping & Return Policies”). The Shipping & Return Policies are incorporated by reference into these Terms of Use.

8. Links to other Web Sites.


For your convenience and enjoyment, this Web Site may provide links to other Web Sites and/or make available third party applications. Your use of such third party web sites and applications is at your own risk. These links and applications do not mean that EOS endorses, approves or sponsors any information available at the linked Web Site or application, or any products that may be sold through a linked Web Site, nor is EOS liable for any loss or damage that might result from your use of such websites, third party applications, information or products.


9. Contests, sweepstakes and promotions.


From time to time, EOS, or its service providers, suppliers, advertisers or other third parties may conduct promotions on or through this Web Site, including, without limitation, contests and sweepstakes (“Promotions”). Each Promotion may have official rules which will be posted or otherwise made available to you and, for purposes of each Promotion, will be deemed incorporated into and form a part of these Terms of Use. By entering into or using such Promotions, you agree to be bound by such official rules in addition to these Terms of Use.


10. Contents of this Web Site — disclaimer.


THE INFORMATION AND MATERIALS IN THIS WEB SITE (INCLUDING ANY GRAPHICS, SOFTWARE, RECOMMENDATIONS OR OTHER MATERIALS) AND ANY INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THIS WEB SITE (INCLUDING THIRD PARTY CONTENT) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EOS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ARISING FROM STATUTE, TORT, COURSE OF DEALING OR USAGE OF TRADE. EOS AND ITS SUPPLIERS AND PARTNERS MAKE NO WARRANTY, REPRESENTATION OR PROMISE THAT THIS WEB SITE OR ANY PRODUCTS PURCHASED THROUGH THIS WEB SITE WILL MEET YOUR REQUIREMENTS. EOS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE INFORMATION, PRODUCT DESCRIPTIONS, MATERIALS, USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS WEB SITE INCLUDING THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE. The information and materials in this Web Site could include technical inaccuracies or typographical errors. Such information and materials could be inaccurate or become inaccurate as a result of new developments or otherwise. EOS undertakes no obligation to verify or maintain the accuracy or currentness of such information or materials.

This Section 10 shall apply to the fullest extent permitted by applicable laws.


11. Operation of this Web Site — disclaimer.


EOS endeavors to maintain this Web Site and its operation, but is not, and cannot be, responsible for the results of any defects that may exist in this Web Site or its operation. AS TO THE OPERATION OF THIS WEB SITE, EOS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ARISING FROM STATUTE, TORT, COURSE OF DEALING OR USAGE OF TRADE. EOS MAKES NO WARRANTY, REPRESENTATION OR PROMISE THAT (A) THE OPERATION OF THIS WEB SITE WILL MEET YOUR REQUIREMENTS; (B) ACCESS TO THIS WEB SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS OR FREE OF DEFECTS OR ERRORS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THIS WEB SITE WILL BE ACCURATE OR RELIABLE; OR (D) DEFECTS WILL BE CORRECTED. YOU (AND NOT EOS) ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR OR CORRECTION THAT MAY BE NECESSARY FOR YOUR COMPUTER EQUIPMENT AND SOFTWARE AS A RESULT OF ANY VIRUSES, ERRORS OR ANY OTHER PROBLEMS WHATSOEVER YOU MAY HAVE AS A RESULT OF VISITING THIS WEB SITE OR ANY OTHER WEB SITE THAT IS LINKED TO THIS WEB SITE.


12. Limitation of liability.


UNDER NO CIRCUMSTANCES SHALL EOS OR ITS SUPPLIERS AND PARTNERS and ITS AND their OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, ADVERTISERS and LICENSORS BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS, COSTS, EXPENSES or loss of REVENUE OR PROFIT), THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THIS WEB SITE OR ANY MATERIALS IN THIS WEB SITE WHETHER IN AN ACTION OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, PRODUCT LIABILITY OR OTHERWISE OR WHETHER ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS WEB SITE, INFORMATION AVAILABLE IN THIS WEB SITE OR PRODUCTS PROVIDED THROUGH THIS WEB SITE. EOS SHALL NOT BE LIABLE EVEN IF EOS OR AN EOS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR INJURY. SUCH DAMAGES OR INJURY MAY INCLUDE BUT ARE NOT LIMITED TO DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE OR COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARMFUL COMPONENT. THE FOREGOING LIMITATION APPLIES TO DAMAGES ARISING FROM (a) your USE OR INABILITY TO USE THis WEB SITE; (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS OR SERVICES PURCHASED THROUGH OR FROM THis WEB SITE; (C) THIRD PARTY CONTENT MADE AVAILABLE TO YOU THROUGH THIS WEB SITE; OR (D) ANY OTHER MATTER RELATING TO THIS WEB SITE.

This Section 12 shall apply to the fullest extent permitted by applicable laws.


13. Limitations.


Applicable law may not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations or exclusions may not apply to you. HOWEVER, IN NO EVENT SHALL EOS’S TOTAL LIABILITY TO YOU FOR DAMAGES, LOSSES (INCLUDING COSTS AND EXPENSES) AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THIS WEB SITE. NO CLAIM OR ACTION IN RELATION TO YOUR ACCESS OR USE OF THIS WEB SITE OR ARISING FROM THESE TERMS OF USE MAY BE BROUGHT MORE THAN ONE YEAR AFTER SUCH CAUSE OF ACTION AROSE.


14. Indemnity.


You hereby agree to indemnify, defend and hold EOS, its officers, directors, agents, affiliates and licensors (collectively, the “Indemnified Parties”) harmless from and against any claim or liability arising out of (a) any breach of or noncompliance with any of your representations, warranties or obligations in these Terms of Use or the Privacy Policy or (b) any claim that your use of the Web Site violates any applicable law or any third party rights, including that it infringes the rights of a third party. You shall cooperate fully in the defense of any claim. EOS reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you. You acknowledge that losses and damages for improper use of this Web Site may be irreparable; therefore, EOS is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies. Your indemnification obligation will survive the termination of these Terms of Use and your use of this Web Site.


15. Breach.


EOS may immediately and without notice suspend, terminate or restrict your activities on this Web Site at any time and in its sole discretion. You agree not to hold EOS responsible for any inconvenience or loss (including costs, expenses, loss of information, inability to access or use) which you may incur as a result of EOS taking any of the actions described above.


16. Availability of help.


This Web Site may provide a help page or other instructions for the use of this Web Site. However, you understand that EOS is under no obligation to provide any support for the use of this Web Site. If you would like to communicate with us (for example, to provide feedback, comments or requests for technical support) or if you have any questions regarding these Terms of Use, you should contact EOS through its customer support department. EOS’s contact information is available at http://evolutionofsmooth.com/contact-us.


17. Applicable law; jurisdiction.


These Terms of Use and any disputes arising under or related to these Terms of Use (whether for breach of contract, tortious conduct or otherwise) will be governed by the laws of the State of New York, without reference to its conflicts of law principles that would result in the application of the laws of another jurisdiction. Any legal actions, suits, proceedings, disputes, controversies or claims arising out of or relating to these Terms of Use (whether for breach of contract, tortious conduct or otherwise), including the validity, invalidity, breach or termination thereof, will be brought exclusively in court of competent jurisdiction located in New York, and you hereby accept and submit to the personal jurisdiction of such New York courts with respect to any legal actions, suits or proceedings arising out of these Terms of Use. YOU ALSO WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE, DEFEND OR INTERPRET ANY RIGHT OR REMEDIES UNDER, OR ARISING IN CONNECTION WITH OR RELATING TO, THESE TERMS OF USE. The parties hereby expressly agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods as amended, replaced or re-enacted from time to time.


18. Severability.


If any provision of these Terms of Use shall be found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.


19. No waiver.


No failure on the part of EOS to enforce any part of these Terms of Use shall constitute a waiver of any of EOS’s rights under these Terms of Use whether for past or future actions on the part of any person. Neither the receipt of any funds by EOS nor the reliance of any person on EOS’s actions shall be deemed to constitute a waiver of any part of these Terms of Use. Only a specific, written waiver signed by an authorized representative of EOS shall have any legal effect whatsoever.


20. Assignment.


You may not assign these Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. EOS may assign these Terms of Use or any rights hereunder without your consent and without notice.


21. Notices to you; consent to receive electronic communications.


Notices to you may be sent via email or through this Web Site by displaying links to notices generally on this Web Site. Any communication regarding your order will be emailed to the email address provided by you to us when ordering on this Web Site.

You understand and agree that you are entering into these Terms of Use electronically and that certain categories of information (“Communications”) may be provided by EOS to you by electronic means (i.e., via email or by posting the information on this Web Site). The categories of Communications that may be provided by electronic means include:


(a) these Terms of Use and any amendments, modifications, or supplements;
(b) records of any purchases made through this Web Site;
(c) disclosures or notices provided in connection with this Web Site, including any required by applicable laws;
(d) any customer service communications, including communications with respect to claims of error or unauthorized use of this Web Site; and
(e) any other communication related to this Web Site.

All Communications will be deemed to have been received by you no later than 5 business days after we send it to you by email or post it on this Web Site, whether or not you have received the email or retrieved the Communication from this Web Site. An electronic Communication by email is considered to be sent at the time that it is directed by EOS’s mail server to your email address. You agree that these are reasonable procedures for sending and receiving electronic Communications.

You agree to promptly update your account records with us if your email address changes so that we may contact you electronically. You may update your account records, such as your email address, as described in Privacy Policy. You understand and agree that if we send you an electronic Communication but you do not receive it because the email address on file is incorrect, out of date, blocked by your service provider or you are otherwise unable to receive electronic Communications, EOS will be deemed to have provided the Communication to you.

Although we reserve the right to provide Communications in paper format at any time, you agree that we are under no obligation to do so. All Communications in either electronic or paper format will be considered to be “in writing.” You should print a paper copy of these Terms of Use and any Communication that is important to you and retain the copy for your records. If you do not wish to receive these Terms of Use or the Communications electronically, you may not use this Web Site.

In order to access and retain Communications, you must have:

(1) a computer with an Internet connection;
(2) a current web browser that includes 128-bit encryption (e.g., Internet Explorer version 6.0 and above, Firefox version 2.0 and above, Chrome version 3.0 and above, or Safari 3.0 and above) with cookies enabled;
(3) a valid email address (i.e., your primary email address on file with EOS); and
(4) sufficient storage space to save past Communications or an installed printer to print them.
If you have registered on this Web Site and you wish to withdraw your consent to have Communications provided electronically, you must close your account. You may do so by contacting us via the contact information provided on the “Contact Us” page of this Web Site and stop using this Web Site. There are no fees to close your account with us.

22. No legal effect.


The paragraph titles in these Terms of Use are for convenience only and have no legal or contractual effect.