Last revised on February 24, 2017
Thanks for signing up for Avochato! We make it easy for you to communicate with your customers and employees via SMS, MMS, voice calls, and more.
Be sure to give these Terms of Service a careful read, as they are binding agreement between you, us, and any company you represent or identify as a user when you create an account. Depending on where your company and users are located (and other factors), strict laws may apply that dictate what kind of calls you’re permitted to make, what kind of text messages you’re allowed to send, whether and how recipients need to consent before you contact them, and more.
We think it’s smart to get professional legal advice before communicating with your customers or others via calls or text messages. As we detail in Section 4.5 below, you bear full responsibility for making sure you are in compliance with all applicable laws regarding text messaging, voice calls, and any other services enabled by our apps.
Thanks and happy messaging!
The Avochato Team
The website located at www.avochato.com (the “Website”), the Web-based Avochato application (the “Web App”) and the downloadable mobile applications (the “Mobile Apps”) (collectively, the “Apps”), and hosted services enabled or available via the Website and the Apps (collectively, the “Services”) are copyrighted works belonging to Avochato, Inc. (“Company,” “us,”, “our,” and “we”). Certain features of the Website, the Apps, and the Services (collectively, the “Company Properties”) may be subject to additional guidelines, terms, or rules, which will be posted on the Companies Properties in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 12.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
“Authorized Users” means the individuals or entities that download and/or use the Apps, for example business owners or customer service agents who use the Services to send and receive messages.
“Content” means all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Company Properties.
“Company Properties” means the Website, the Apps, and the Services, collectively.
“Customer” means you, the individual user of our Company Properties and any company or other legal entity, as applicable, that you represent while using the Company Properties or identify as the user when creating an Account to use the Services.
“Mobile Apps” means the downloadable applications by which Authorized Users can access the Services via a mobile device via the Apple App store, Google Play, and/or other mobile application web stores if applicable. The Mobile Apps and Web App are also referred to collectively as the “Apps” or the “Software.”
“Recipients” means the individuals or entities that receive and/or reply via SMS or MMS to messages sent from the Services. Recipients who download and/or use the Web or Mobile Apps are also Authorized Users.
“Services” means the functionality provided via the Software that (1) enables Authorized Users to send and receive Short Message Service (SMS) messages and may enable (depending on the type of Communications Account enabled) Multimedia Messaging Service (MMS) messages, (2) enables Authorized Users to organize, manage, and respond to communications, (3) provisions a phone number for use as an SMS, MMS, and/or voice response line, and (4) enables other features such as automated responses and other functionality which may be added to the Services over time.
“User Content” means any Content you, or another Authorized User or Recipient uploads, posts, e-mails, sends in text messages, transmits or otherwise makes available (“Make Available”) through the Company Properties.
The “Web App” means the cloud-based application by which Authorized Users can access the Services via a Web browser.
The “Website” means the Company’s external-facing Website at http://www.avochato.com and associated publicly-available sub-pages.
2.1 Account Creation. In order to use certain features of the Company Properties, you must register for an account (“Account”) and provide certain information about yourself and/or the company you represent as prompted by the Account registration form. You represent and warrant that all required registration information you submit, including your company name and other information about the company you represent, is truthful and accurate and that you will maintain the accuracy of such information. You acknowledge that our Services are not intended for purchase by consumers and you represent and warrant that you will not register an Account for personal, family or household purposes. You may delete your Account at any time, for any reason, by following the instructions on the Company Properties or contacting us at 415-214-8977 or email@example.com. Company may suspend or terminate your Account in accordance with Section 10. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of the Company.
2.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security by emailing firstname.lastname@example.org. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3. Access to the Company Properties
3.1 License. Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Company Properties on mobile devices or computers that you own or control solely for your own personal or internal business purposes, and not for further resale. Furthermore, with respect to any Mobile App accessed through or downloaded from the Apple App Store, Google Play marketplace or any similar store or marketing place (each, an “App Store”), you agree to comply with all applicable third party terms of the relevant App Store (e.g. Apple App Store’s Usage Rules) (the “Usage Rules”).
3.2 User Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Company Properties, whether in whole or in part; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Company Properties; (c) you shall not access the Company Properties in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Company Properties shall be subject to these Terms. All copyright and other proprietary notices on the Company Properties (or on any Content displayed on the Company Properties) must be retained on all copies thereof.
3.3 Modifications. Company reserves the right, at any time, to modify, suspend, or discontinue the Company Properties (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Company Properties or any part thereof.
3.4 Ownership. Excluding any User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Company Properties and its Content are owned by Company or its licensors. Neither these Terms (nor your access to the Company Properties) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 3.1. Company reserves all rights not granted in these Terms. There are no implied licenses granted under these Terms.
3.5 Updates. You understand that the Company Properties are evolving. As a result, the Company may require you to accept updates to the Company Properties that you have installed on your computer or mobile device. You acknowledge and agree that the Company may update the Company Properties with or without notifying you. You may need to update third-party software (e.g. your devices operating system) from time to time to continue to use the Company Properties.
4.1 User Content. You agree that you, and not the Company, are entirely responsible for all User Content that you Make Available through the Company Properties and that other users of the Company Properties and Recipients, and not the Company, are similarly solely responsible for all User Content that they Make Available through the Company Properties. You assume all risks associated with your use of Content, including User Content, and for the use of your User Content by others, including any reliance on its accuracy, completeness or usefulness. We make no guarantees regarding the accuracy, currency, suitability, or quality of any Content. Your interactions with other Company Properties users are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as a result of any such interactions. If there is a dispute between you and any Company Properties user, we are under no obligation to become involved. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 4.5). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Company is not obligated to back up any User Content, and any User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
4.2 No Obligation to Pre-Screen Content. You acknowledge that the Company has no obligation to pre-screen Content (including, but not limited to, User Content), although the Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your User Content or any User Content you receive from others in connection with your use of the Company Properties, including without limitation any chat, text, or voice communications. In the event that the Company pre-screens, refuses or removes any User Content, you acknowledge that the Company will do so for the Company’s benefit, not yours. Without limiting the foregoing, the Company shall have the right to remove any User Content that violates the Terms or that it otherwise deems objectionable.
4.3 Storage, Accuracy and Deletion of Content. Unless expressly agreed to by the Company in writing elsewhere, the Company has no obligation to store any of the User Content that you Make Available on or receive through the Company Properties. The Company has no responsibility or liability for the deletion or accuracy of any Content, including User Content or for the failure to store, transmit or receive transmission of any Content or communications.
4.4 User Content License. You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide right and license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, for any purposes and in any media now existing or hereafter developed (including, without limitation, electronic storage). You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or rights of attribution with respect to your User Content.
4.5 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
(a) You agree not to use the Company Properties to collect, upload, transmit, display, distribute or Make Available any User Content: (i) that falsely impersonates any person or entity or falsely states or misrepresents your affiliation with any person or entity; (ii) in violation of any legal, contractual or fiduciary obligation or third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, or right of publicity; (iii) that is unlawful, harassing, abusive, tortious, threatening, harmful, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive; (iv) that promotes racism, bigotry, hatred, intimidation or violence against any group or individual; (v) that is harmful to minors; or (vi) that promotes illegal activities.
(b) In addition, you agree not to: (i) upload, transmit, distribute or Make Available through the Company Properties any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Company Properties unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any form of unreasonably duplicative messages, whether commercial or otherwise; (iii) use the Company Properties to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Company Properties, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Company Properties (or to other computer systems or networks connected to or used with the Company Properties), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Company Properties; (vii) use software or automated agents or scripts to produce multiple accounts on the Company Properties, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Company Properties (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Company Properties for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file), (viii) use Company Properties in violation of any law or regulation, including without limitation, the federal Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227), as amended, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 U.S.C. § 103 et. seq), the United States’ National Do Not Call Registry, Rules for Carriers Subpart L “Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising” (47 U.S.C. § 64.1200), and (if applicable) the Canada Anti-SPAM Legislation (S.C. 2010, c. 23 as amended); (viii) use, without the Company’s prior express written consent in each instance, the Company Properties to provision an emergency reporting or response system (e.g., Enhanced 911 or E911 emergency service); (ix) to support the operation of a life support system, nuclear facility, aircraft navigation system, air traffic control system or other system critical to human life or safety or (x) assist or encourage any other person or entity to engage in any of the foregoing prohibited activities.
4.6 Your Phone Numbers. The Company may offer the opportunity to enable you to use one or more existing phone numbers with the Services. If you use such a feature, you represent and warrant that (i) any phone number you register or associate with your Account is not a mobile number, (ii) you will only use the Services for legal purposes and will comply with all applicable laws and regulations in connection with your use of the Services and any number you register or associate with your Account, (iii) you have procured any and all necessary rights and licenses, and have the full power and authority, necessary to use any phone number you register or associate with your Account, and (iv) you will not use the services on a phone number that has been exchanged with, rented, or purchased from a third party unless you have received permission from the third party to do so.
4.7 Enforcement. If Company becomes aware of any possible violations by you of the Terms, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that unlawful activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all relevant legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Company Properties, including your User Content, in Company’s possession in connection with your use of Company Properties, to (1) comply with applicable laws, legal process or governmental requests; (2) enforce the Terms, (3) respond to any claims that User Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Company, its users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate. We further reserve the right to take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms, including, without limitation removing or modifying your User Content and terminating your Account.
4.8 Feedback. You agree that submission of any ideas, suggestions, feedback and/or proposals to Company (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, for any purpose.
5.1 You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, representatives, partners and licensors (collectively, “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your User Content; (b) your use of, or inability to use, Company Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Recipients or other users; or (e) your violation of any applicable laws, rules or regulations. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Company Properties.
5.2 Release. You hereby release and forever discharge the Company Parties from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Company Properties (including any interactions with, or act or omission of, other Company Properties users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
6. Disclaimer OF WARRANTIES AND CONDITIONS
6.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
(f) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
6.2 No Liability for Conduct of Other Users and Third Parties. YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF OTHER USERS OR ANY OTHER THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF COMPANY PROPERTIES. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF COMPANY PROPERTIES.
7. Limitations of Liability
7.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH COMPANY PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (1) THE USE OR INABILITY TO USE COMPANY PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STATUTORY LAW OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.
7.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COMPANY PARTIES TO YOU IN CONNECTION WITH ANY CLAIM RELATING TO THESE TERMS OR THE COMPANY PROPERTIES EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Company by you during the 30-dAY period prior to the act, omission or occurrence giving rise to such liability AND (B) ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. THE FOREGOING CAPS ON LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.
7.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES AND LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
8. Fees and Purchase Terms
8.1 General Purpose of Terms: Sale of Service, not Software. The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Company’s Software, and, furthermore, any use of Company’s Software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
8.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your service tier (each, a “Service Commencement Date”). Except as set forth in the Terms, all fees for the Services are non-refundable. No contract will exist between you and Company for the Services until Company accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
8.3 Taxes. Unless otherwise noted on the Company Properties, Company’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Company for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Company is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
8.4 Withholding Taxes. You agree to make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Company will be your sole responsibility, and you will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
8.5 Automatic Renewal. Unless otherwise noted on the Company Properties, your subscription will continue indefinitely until terminated in accordance with the Terms. Unless otherwise noted on the Company Properties, paid subscriptions will automatically renew on a monthly basis, and your payment card or other payment method on file will be charged the Company’s then-current subscription fee for the plan you select on the date that you sign up and at the beginning of each subsequent monthly renewal period (each a “Renewal Commencement Date”) until you cancel. Renewal Commencement Dates ordinarily will fall on the monthly anniversary date of the date you signed up for your paid service plan. However, if you sign up for a paid plan on the 29th, 30th or 31st of a particular month, your subsequent Renewal Commencement Date for any months that have fewer than 29, 30 or 31 days, as applicable, will be the last day of the applicable month. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription prior to the Renewal Commencement Date by contacting the Company at 415-214-8977 or email@example.com. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Company to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Company does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Company may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
8.6 Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. Unless otherwise noted in the applicable offer description, at the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Company to have the charges reversed.
9. Copyright Policy
Company respects the intellectual property of others and asks that users of our Company Properties do the same. In connection with our Company Properties, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Company Properties who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Company Properties, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
1. your physical or electronic signature;
2. identification of the copyrighted work(s) that you claim to have been infringed;
3. identification of the material on our Services that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to locate such material;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Company is: Alejandro De Simone
Address of Agent: 530 Howard Street, 2nd Floor, San Francisco, CA 94105
10. Term and Termination.
10.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Company Properties, unless terminated earlier in accordance with the Terms.
10.2 Prior Use. Notwithstanding the foregoing, if you used Company Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Company Properties (whichever is earlier) and will remain in full force and effect while you use Company Properties, unless earlier terminated in accordance with the Terms.
10.3 Termination of Services by Company. We may suspend or terminate your rights to use the Company Properties (including your Account) at any time for any reason at our sole discretion. For example, if timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if Company is required to do so by law (e.g., where the provision of the Website, the Application, the Software or the Services is, or becomes, unlawful), Company may immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account.
10.4 Termination of Services by You. If you want to terminate the Services provided by Company, you may do so by (a) notifying Company at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Company's address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 8.5.
10.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services may also include deletion of your password and all related information, files and Content associated with your Account (or any part thereof), including Your User Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of your User Content associated therewith from our live databases. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services and your access to the Company Services, including without limitation, ownership provisions, User Content licenses, warranty disclaimers, indemnification obligations, all provisions relating to dispute resolution and arbitration, governing law and limitations of liability.
10.6 No Subsequent Registration. If your registration(s) with or ability to access Company Properties is discontinued by Company due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access Company Properties through use of a different user name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
11. Third-Party Links & Ads; Other Users
11.1 Third-Party Links & Ads. The Company Properties may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering policies.
12.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by posting notice of the changes on our Company Properties. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Unless otherwise stated on the Company Properties or applicable notice, any changes to these Terms will be effective upon posting of the changes on our Company Properties. Continued use of our Company Properties following posting of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the amended Terms.
12.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms or the use, operation, marketing or advertising of the Company Properties that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of Services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: Avochato, Inc., 530 Howard St, Second Floor, San Francisco, California 94105. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS' most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes in which the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the ADR Provider’s Rules. Any hearing will be held in a location within San Francisco County, California unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or the Company pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under ADR Provider’s Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator, and not any court or agency, will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes subject to arbitration hereunder shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than proceedings in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor we shall be entitled to arbitration of such claim or dispute and instead the applicable claim or dispute shall be resolved in a court as set forth in Section 12.2(p).
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. Subject to Section 12.2(h), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
(m) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court (other than a small claims court), the parties hereby agree that all applicable claims and disputes shall be litigated exclusively in the state courts located within San Francisco County, California, or the federal courts located in the Northern District of California, and the parties hereby agree to submit to the personal jurisdiction of such courts for purposes such litigation.
(q) Modifications. Notwithstanding any provision in the Terms to the contrary, we agree that if the Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) of which you had already provided notice to us.
12.3 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, 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 and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by law.
12.4 Accessing and Download the Application from iTunes. The following terms apply to any Mobile Apps accessed through or downloaded from the Apple App Store (“App Store Sourced Application(s)”):
(a) You acknowledge and agree that (i) the Terms are concluded between you and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
(d) You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
12.5 Consumer Complaints. Company is located at the address in Section 12.10. If you are a consumer and a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
12.6 Consent to Receive Calls, Texts and Other Electronic Communications. The communications between you and Company use electronic means, whether you use the Company Properties or send us emails or text messages, or whether Company posts notices on the Company Properties or communicates with you via email, text messages or other electronic means. By agreeing to these Terms, you provide your express written consent for the Company and its representatives to contact you at any time using any telephone number or email address you provide or associate with your account via text messages, phone calls, or e-mails for any matters relating to your account or your use of the Company Properties. You further agree that the Company may use automatic telephone dialing systems and/or prerecorded or artificial voice message for purposes of such communications. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if set forth in a hardcopy writing. The foregoing does not affect your non-waivable rights.
12.7 Entire Terms; Assignments. These Terms constitute the entire agreement between you and us regarding the use of the Company Properties. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” Subject to Section 12.2(h), if any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
12.8 Governing Law. THESE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
12.9 Copyright/Trademark Information. Copyright © 2017 Avochato, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Company Properties are our property or the property of third party owners. You are not permitted to use these Marks without our prior written consent or the consent of their respective owners.
12.10 Contact Information:
530 Howard St
San Francisco, California 94105