Avalow Terms of Service
Last updated: February, 2019
Welcome to Avalow. We want you to know and understand your rights and our rights relating to our Services (as defined below).
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. Avalow, Inc. (together with our affiliates, “Avalow”, “we”, or “us”) provides an online gardening community and related products, services, content and features through Avalow’s websites, such as those for our coaching, support, and store (the “Avalow Site(s)”), through mobile, desktop, or device applications (including iOS and Android applications) (the “Apps”), and through Avalow-controlled social media pages (including on Facebook, Instagram, Spotify and Twitter) (collectively, the “Avalow Services” or the “Services”.
THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 17). THESE PROVISIONS AFFECT YOUR LEGAL RIGHTS; PLEASE READ THEM CAREFULLY.
If you do not agree to be bound by the terms and conditions of the Agreement, you may not access or use the Avalow Services. Certain elements of the Avalow Services may be subject to additional terms and conditions specified from time to time; your use of those elements of the Avalow Services is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.
1. Who May Use the Avalow Services
Age Requirement. You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to register with and use the Avalow Services.
We may, in our sole discretion, refuse to offer the Avalow Services to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring your compliance with all laws, rules and regulations applicable to you, and the right to access and use the Avalow Services is revoked where prohibited. Further, the Avalow Services are offered only for your personal, non-commercial use, and not for the use or benefit of any third party.
2. License to Use the Avalow Service
License. Subject to your compliance with the Agreement, Avalow grants you a limited, non-transferable, non-exclusive, revocable license to access and use the Avalow Services for your own personal, non-commercial purposes. This license includes the right to view Content (defined below) available on the Avalow Services. This license is personal to you and may not be assigned or sublicensed to anyone else.
Restrictions. Except as expressly permitted in writing by an authorized representative of Avalow, you will not reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Avalow Services or any part thereof, nor will you take any measures to interfere with or damage the Avalow Services. All rights not expressly granted in this Agreement are reserved by Avalow.
3. Membership Registration
To enjoy full access to the Avalow Services including, without limitation, our coaching services and in-person or on-demand classes, Content, and additional features, you are required to register for a Subscription with Avalow. Your Subscription is governed by the Membership Terms and any Contract for Gardening Services that you enter into with Avalow. Both the Membership Terms and your Contract for Gardening Services are incorporated into and made part of the Agreement. When registering, you must provide complete and accurate registration information to Avalow, complete the registration process, and notify us if any of your information changes at any time during your Subscription. If you fail to keep your account information up to date, we reserve the right to suspend or terminate your Subscription.
Participation in our in-person live classes is subject to additional fees that are separate from the Subscription fees for Avalow’s online Content. Additional information about our in-person class registration and memberships is available on our website.
You may not use someone else’s name, or any name, location, other public profile information or image that violates any third party rights, is against the law, or that is offensive, obscene or otherwise objectionable (in Avalow’s sole discretion).
You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not allow others to use your account. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the Avalow Services. If you become aware of any unauthorized access to your account, change your password and notify our Support team immediately.
4. Membership Structure and Fees
Avalow provides information on its membership fees and Subscription requirements in the Membership Terms, on the Avalow Site, and/or by other means through the Avalow Services. Features and prices are subject to change by Avalow at its sole discretion from time to time without notice.
5. Sale of Products
Avalow accepts orders for our raised bed hardware, called Avalows, available in different sizes), and any other equipment, apparel or accessories that we may offer through the Avalow Site or at Avalow retail showrooms. Unfortunately, availability of products cannot be guaranteed. Please note that product, service and other information provided is subject to corrections and changes without notice. Graphics, diagrams, colors, styles, and other variants are for illustrative purposes only and may not accurately reflect actual product, and are subject to change without notice. If a product or service is listed at any incorrect price or with incorrect information due to typographical error, error in pricing, or other errors, Avalow will correct such errors where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions, even after you have placed an order.
Unless otherwise specified at the time of purchase, you must pay for products when you place the order. All products ordered will be delivered to the shipping address you provide. We reserve the right to cancel an order placed by you at any time and for any lawful reason prior to our delivery of the product(s) and receipt of payment in full from you, provided that we will refund any fees that you prepaid for those products. We may send an acknowledgment of receipt of your order to the email address you provide and/or proof of purchase information through the Avalow Site or to your email address after your payment has been processed. Please see our Warranty and Return Policy for further information about Avalow products.
If you are shipping within the United States of America and its territories (including Puerto Rico), sales tax will be charged on orders in accordance with applicable state laws. Such sales tax will be charged at the same time as payment for the product is charged. No other tax or import duty will be applied to orders shipped within the United States. Avalow does not ship outside of the United States of America and its territories (including Puerto Rico).
We accept payment for all purchases through third-party payment processors. You agree to be bound by and accept the terms and conditions of those processors. Further, you represent and warrant that: (i) the credit card information you supply to us, our vendors, and our affiliates is true, correct, and complete; (ii) charges incurred by you will be honored by your credit card company; and (iii) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
We offer a variety of shipping options to meet your shipping needs. Please check the shipping options at checkout for specific delivery options and fees. You are responsible for all shipping costs unless otherwise stated by Avalow.
Except as otherwise set forth herein, in the event that purchased products are unable to be delivered to you due to an incorrect shipping address, your failure to pay any necessary import taxes or duties, or your failure or refusal to accept delivery for any other reason, the products shall be returned to Avalow and we shall charge you for all costs and expenses associated with such return shipment, plus a restocking fee at Avalow’s discretion. Avalow does not guarantee that it will store or reship the products to you once they are returned to our warehouse, and Avalow reserves the right to retain all sums paid by you for the products. Avalow retains title to all products until fully paid for by you.
6. Term and Termination; Account Deletion
Term. This Agreement is effective on the date you first access or use the Avalow Services and continues as long as you have an account with us and/or continue to access and/or use the Avalow Services.
Termination. Avalow may, in Avlaow’s sole discretion, suspend, disable, or delete your account (or any part thereof) or block or remove any User Content (defined below) that you have submitted, for any lawful reason, including if Avalow determines, in its sole discretion, that you have violated the Agreement or that your conduct or User Content would tend to damage Avalow’s reputation or goodwill. If Avalow deletes your account, you may not re-register for or use the Avalow Services under any other user name or profile unless permitted by Avalow in writing. Avalow may block your access to the Avalow Services to prevent any such re-registration.
Effect of Termination / Account Deletion. Upon termination of the Agreement or Avalow’s deletion of your account, all licenses granted by Avalow immediately terminate. Any provisions which, by their nature, are intended to survive the termination of this Agreement shall survive, including, without limitation, this paragraph, Section 7 (“User Content”), Section 11 (“Indemnification”), Section 13 (“No Warranties”), Section 14 (“Limitation of Liability”), Section 15 (“Intellectual Property”), Section 17 (“Arbitration & Class Action Waiver”, Section 19 (“Contracting Entities, Governing Law”), Section 20 (“Interpretation; Severability; Waiver; Remedies”), and Section 21 (“Notices”).
In the event of account deletion or cancellation for any reason, your User Content may no longer be available and Avalow is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your Subscription or it is terminated for any reason, you will lose access to all live and on-demand classes and any other Content or features provided through the Avalow Services including but not limited to your User Content. Avalow, in its sole discretion, may make available a very limited amount of Content or features to non-members from time to time, and any use of that Content is governed by the Agreement.
7. User Content
“Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Avalow Services; and (ii) “User Content” means any Content that users (including you) provide to be made available through the Avalow Services. Content includes, without limitation, User Content.
Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent and warrant to Avalow that all User Content submitted by you or on your behalf is accurate, complete, up-to-date, and in compliance with the Agreement and with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Avalow Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any Content that you access on or through the Avalow Service.
As between you and Avalow, you represent that you own (or have all rights necessary to grant Avalow the rights below to) all User Content that you submit to the Avalow Services, and that Avalow will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You further represent and warrant that your User Content, and its use by Avalow as permitted by herein does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates the Agreement.
You retain all copyrights and other intellectual property rights in and to your own User Content. By submitting User Content to Avalow, you hereby grant Avalow a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable, royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, combine, translate, adapt, make derivative works from, and otherwise exploit (including for profit) your User Content for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content.
You expressly agree that once you submit User Content to the Avalow Services, such User Content will be accessible by others, including other members and visitors to the Avalow Services, and that there is no confidentiality or privacy with respect to such User Content, including any personal information that you may make available through User Content. You grant all members of the Avalow Services and visitors to the Avalow Sites permission to view your User Content for their personal, non-commercial purposes.
If you make suggestions to Avalow or through the Avalow Services about improving or adding new features or products to the Avalow Services or you otherwise provide feedback or testimonials, you hereby grant to Avalow a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable, royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback and testimonials for any purpose, without any notice, compensation, attribution, or other obligation to you.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Avalow Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content. We reserve the right to remove or delete any User Content at our discretion.
8. Downloading the App
The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
This Agreement is between you and Avalow, and not with the App Provider, and Avalow (not the App Provider), is solely responsible for the App.
The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Avalow.
The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Avalow will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
The App Provider and its affiliates are third-party beneficiaries of the Agreement as related to your license to the App, and that, upon your acceptance of the Agreement, the App Provider will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App against you as a third-party beneficiary thereof.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; (iii) you are not an individual, or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and (iv) you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.
You must also comply with all applicable third party terms of service when using the App.
9. General Prohibitions and Avalow’s Enforcement Rights
You agree not to do any of the following:
Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity; (vii) exploits minors or (viii) promotes illegal or harmful activities or substances;
Use, display, mirror or frame the Avalow Services or any individual element within the Avalow Services, Avalow’s name, any Avalow trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Avalow’s express written consent;
Access, tamper with, or use non-public areas of the Avalow Services, Avalow’s computer systems, or the technical delivery systems of Avalow’s providers;
Attempt to probe, scan or test the vulnerability of any Avalow system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Avalow or any of Avalow’s providers or any other third party (including another user) to protect the Avalow Services or Content;
Attempt to access, scrape or search the Avalow Services or Content or download Content from the Avalow Services, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by Avalow or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Avalow trademark, logo URL or product name without Avalow’s express written consent;
Use the Avalow Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by this Agreement or permitted expressly in writing by Avalow;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Avalow Services or Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Avalow Services or Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Avalow Services;
Collect or store any personally identifiable information from the Avalow Services from other users of the Avalow Services without their express permission;
Copy, use, disclose or distribute any information obtained from the Avalow Services, whether directly or through third parties (such as search engines), without Avalow’s express written consent;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Avalow Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Avalow Services, to ensure compliance with the Agreement, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Avalow Services and Avalow’s systems. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of the Agreement. We have the right to investigate violations of the Agreement or conduct that affects the Avalow Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
10. Member Interactions, Dealings with Third Parties
When interacting with other Avalow members, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the Avalow Services, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Avalow is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings.
In addition, when visiting or taking classes at any of our studios, please be advised that Avalow is not responsible for any lost or stolen items and that visitors, guests and members are required to adhere to then-current policies in place at that studio and the directions of that studio’s employees and representatives.
You agree to indemnify, defend, and hold harmless Avalow and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs that arise from or relate to (i) your activities on the Avalow Services, (ii) any User Content submitted by or on behalf of you or (iii) your violation of the Agreement.
12. Third Party Links and Content
There may be links on the Avalow Services that let you leave the particular Avalow Service you are accessing in order to access a linked site that is operated by a third party. Avalow neither controls nor endorses these sites, nor has Avalow reviewed or approved the content that appears on them. Avalow is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such third party sites. You acknowledge and agree that Avalow is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access or use of any of the links, content, goods or services available on or through these third party sites.
13. No Warranties
Avalow reserves the right to modify the Avalow Services, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the Avalow Services, at any time, in its sole discretion, without notice. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Avalow Services. Avalow has no obligation to screen or monitor any Content and does not guarantee that any Content available on the Avalow Service is suitable for all users or that it will continue to be available for any length of time.
AVALOW PROVIDES THE AVALOW SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU THEREFORE USE THE AVALOW SERVICES AT YOUR OWN RISK. OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR OTHERWISE IN WRITING BY AVALOW IN CONNECTION WITH YOUR PURCHASE OF AN AVALOW PRODUCT OR YOUR ACCESS TO AND/OR USE OF THE AVALOW SERVICES, TO THE FULLEST EXTENT PERMITTED BY LAW, AVALOW EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
TO THE EXTENT THAT ANOTHER PARTY MAY HAVE ACCESS TO OR VIEW CONTENT ON YOUR DEVICE, YOU ARE SOLELY RESPONSIBLE FOR INFORMING SUCH PARTY OF ALL DISCLAIMERS AND WARNINGS IN THESE TERMS.
TO THE EXTENT THAT AVALOW MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
14. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) AVALOW SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, ECONOMIC OR PURE ECONOMIC LOSSES, GOODWILL, USE, DATA, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, INABILITY TO USE THE AVALOW SERVICES OR CONTENT OR OTHER INTANGIBLE LOSSES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE; AND (II) AVALOW’S TOTAL LIABILITY TO YOU FOR ALL DIRECT DAMAGES NOT ATTRIBUTABLE TO PERSONAL INJURIES, IN THE AGGREGATE, WILL NOT EXCEED THE GREATER OF: THE AMOUNT ACTUALLY PAID BY YOU TO AVALOW OVER THE 12 MONTHS PRECEDING THE DATE YOUR FIRST CLAIM(S) AROSE, AND $100. NO COMMON-LAW CAUSE OF ACTION ARISING UNDER TORT, CONTRACT, OR WARRANTY RELATED TO THE AVALOW SERVICES, OR OTHERWISE ARISING UNDER THIS AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR LIABILITIES, THEREFORE, SOME OF THE ABOVE LIMITATIONS (INCLUDING IN SECTION 13) MAY NOT APPLY TO YOU. TO THE EXTENT THAT ONE OR ANY ASPECT OF AVALOW’S LIMITATIONS SET OUT ABOVE DOES NOT APPLY, ALL REMAINING ASPECTS SURVIVE. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AVALOW AND YOU.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
15. Intellectual Property
You acknowledge that the Avalow Services contain software and other Content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Avalow-generated Content, and Content provided to Avalow by its partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions; further, as between you and Avalow, Avalow owns a copyright in the selection, coordination, arrangement and enhancement of all Content in the Avalow Services other than User Content. Subject to your compliance with the Agreement, and solely for so long as you are permitted by us to access and use the Avalow Services, you may download one copy of the application to any single device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices, and are in compliance with the Agreement. Unless otherwise specified, copying or modifying any Content (other than your own User Content) or using Content for any purpose other than your personal, non-commercial use of the Avalow Service, including use of any such Content on any other website or networked computer environment, is strictly prohibited.
The Avalow name, logos and affiliated properties, designs and marks are the exclusive property of Avalow, whether registered or unregistered, and may not be used by you for any reason. Nothing contained on the Avalow Services or in this Agreement should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or other intellectual property without our express prior written consent.
Any other trademarks appearing on the Avalow Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the Content that they make available through the Avalow Services. All rights not expressly granted in this Agreement are reserved.
16. Copyright / DMCA Policy
Avalow respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that his or her User Content does not infringe any third party copyright or other intellectual property rights.
If properly notified that any materials infringe a third party’s copyright, Avalow will review all claims and promptly remove such materials from the Avalow Services. In addition, Avalow may, when appropriate, terminate the accounts of repeat copyright infringers.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information:
Your name, address, telephone number, and email address.
A description of the copyrighted work that you claim has been infringed.
A description of where on the Avalow Services the material that you claim is infringing may be found, sufficient for Avalow to locate the material (e.g., the URL).
A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Your electronic or physical signature.
You may submit this information, or any counter notice, via:
Email, with the subject line “Copyright Notices” to: email@example.com
327 S. A St
Santa Rosa, CA 95401
Attn: Copyright Agent
Avalow may disclose any communications concerning Digital Millennium Copyright Act (“DMCA”) or other applicable copyright notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.
If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see U.S. Copyright Act, 17 U.S.C. § 512(c)(3) for more information. If you have questions about the legal requirements of a DMCA counter-notification, please contact an attorney or see U.S. Copyright Act, 17 U.S.C. § 512(g)(3) for more information.
17. ARBITRATION & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.
Binding Arbitration. In the event of a dispute arising under or relating to this Agreement, the Content, or the Avalow Services (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in this Section 17, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
Class Action Waiver. You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Equitable relief. You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of California for purposes of any such action by us.
18. Communications Decency Act Notice
Avalow is a provider of “interactive computer services” as defined under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation, libel, product disparagement, and other claims arising out of any User Content is limited as described therein. We are not responsible for any User Content. We neither warrant the accuracy of the User Content nor exercise any editorial control over User Content, nor do we assume any legal obligation for editorial control of User Content or liability in connection with User Content, including any responsibility or liability for investigating or verifying the accuracy of any User Content.
19. Contracting Entities, Governing Law
All users are contracting with Avalow, Inc. unless otherwise specified in the Agreement.
This Agreement shall be governed by the laws of the State of California without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
20. Interpretation; Severability; Waiver; Remedies
Headings are for convenience only and shall not be used to construe the Agreement. If any provision of this Agreement is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. No failure or delay by Avalow in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Avalow. Avalow’s rights and remedies hereunder are cumulative and not exclusive.
You consent to receive all communications including notices, agreements, disclosures, or other information from Avalow electronically. Avalow may communicate by email or by posting to the Avalow Services. For support-related inquiries, you may email Support. For all other notices to Avalow, write to the following address:
327 S. A St
Santa Rosa, CA 95401
Attn: Legal Department
Nothing in these Terms or otherwise limits Avalow’s right to object to subpoenas, claims, or other demands.
We may update this Agreement at any time, in our sole discretion. If we do so, we will post the updated Agreement, or portion thereof, (as indicated by a revised “Last Updated” date at the top of this page) on the Avalow Site and/or through the Avalow Services. Modifications will be effective on the date that they are posted to the Avalow Site. It’s important that you review the Agreement whenever we update it before you use the Avalow Services. If you continue to use the Avalow Services after we have posted an update, you are agreeing to be bound by the updated Agreement. If you don’t agree to be bound by the updated Agreement, you may not use the Avalow Services anymore. Because the Avalow Services are evolving over time we may change or discontinue all or any part of the Avalow Services, at any time and without notice, at our sole discretion.
23. Entire Agreement
These Terms incorporate the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the Avalow Site from time to time, which, all together, make up the Agreement:
In the event of a conflict between any policies posted on the Avalow Services and this Agreement, the terms of this Agreement will control. This Agreement represents the entire understanding between Avalow and you regarding the Avalow Services or Content and supersedes all prior agreements and understandings regarding the same.
Copyright 2019 Avalow, Inc. All rights reserved.