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Terms of service

Last modified: June 5, 2012

Welcome to Avocado!

Avocado Software, Inc. (“Avocado”, “our”, “us” or “we”) provides an online communication and sharing service for couples and groups (the “Services”) through our website, accessible at https://avocado.io (the “Site”) and as an application for mobile devices (the “Application”). Please read carefully the following terms and conditions (“Terms”) and our Privacy Policy, which may be found at http://avocado.io/privacy. These Terms govern your access to and use of the Site, Services, Application and Collective Content (defined below), and constitute a binding legal agreement between you and Avocado.

Key Content-related Terms

"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.

"Avocado Content" means Content that Avocado makes available through the Site, Services or Application, including any Content licensed from a third party, but excluding Member Content.

"Member" means a person who completes Avocado’s account registration process, as described under the “Account Registration” section below.

"Member Content" means Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Services or Application.

"Collective Content" means, collectively, Avocado Content and Member Content.

Certain areas of the Site (and your access to or use of certain Services, Application or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Services, Application or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Services, Application or Collective Content, as applicable.

YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, SERVICES OR APPLICATION, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICES OR APPLICATION, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SITE OR VIA THE APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

Modification

Avocado reserves the right, at its sole discretion, to modify, discontinue or terminate the Site, Services or Application or to modify these Terms, at any time and without prior notice. If we modify these Terms we will post the modification on the Site or via the Application or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site, Services or Application after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services and Application.

Eligibility

The Site, Services and Application are intended solely for persons who are 13 years of age or older. Any access to or use of the Site, Services or Application by anyone under 13 is expressly prohibited. By accessing or using the Site, Services or Application you represent and warrant that you are 13 years of age or older.

Using the services

Via the Site, Services and Application, each Member can share text, images, lists, calendar items and other Member Content with other Members or groups of Members, according to the selections such Member makes via the Services. Members may also publicly share Member Content in the form of photos and videos via the Services.

Account Registration

In order to access certain features of the Site, Services and Application, you must register to create an account (“Account”) and become a Member. You may register directly via the Site or Application or by logging into your account with certain third party social media or social networking sites (“SNS”) (including, but not limited to, Facebook) via the Site or Application, as described herein. If you decide to register through an SNS, we will extract the personal information you have provided to the SNS (such as your “real” name, email address and other information you make publicly available via the SNS) from the account you have with the applicable SNS and use that information to create your Account. The specific information that we extract may depend on the privacy settings you have with the SNS. You hereby consent to our access to and collection of such personal information about you.

You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Avocado reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Avocado of any unauthorized use of your Account.

Privacy

See Avocado’s Privacy Policy at http://avocado.io/privacy for information and notices concerning Avocado’s collection and use of your personal information.

Ownership

The Site, Services, Application and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Services, Application and Avocado Content, including all associated intellectual property rights, are the exclusive property of Avocado and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services, Application or Avocado Content.

Licenses Granted by Avocado to Avocado Content and Member Content

Subject to your compliance with the terms and conditions of these Terms, Avocado grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any Avocado Content solely for your personal and non-commercial purposes; and (ii) a to view any Member Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.

You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Services, Application or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Avocado or its licensors, except for the licenses and rights expressly granted in these Terms.

License granted by Member

We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Services or Application, you hereby grant to Avocado a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view in cases of potential unlawful use, copy, adapt, modify, license, transfer, and with Member permission distribute, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Member Content only on, through or by means of the Site, Services or Application., Avocado does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any Member Content.

You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Services or Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Services or Application or you have all rights, licenses, consents and releases that are necessary to grant to Avocado and to the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Avocado’s use of the Member Content (or any portion thereof) on, through or by means of the Site, Services or Application will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

Content from Third Party Accounts

As part of the functionality of the Site, Service and Application, you may link your Account with online accounts you may have with third party service providers (each such account, a “Third Party Account”) by allowing Avocado to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to grant Avocado access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Avocado to pay any fees or making Avocado subject to any usage limitations imposed by such third party service providers.

By granting Avocado access to any Third Party Accounts, you understand that Avocado will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“Third Party Account Content”) so that it is available on and through the Site, Services and Application via your Account. Unless otherwise specified in these Terms, all Third Party Account Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Account on the Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable or Avocado’s access to such Third Party Account is terminated by the third party service provider, then the Third Party Account Content that was available from such Third Party Account will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Account and your Third Party Accounts, at any time, by accessing the settings section of the Site or Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WTH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Avocado makes no effort to review any Third Party Account Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and Avocado is not responsible for any Third Party Account Content.

Application License

Subject to your compliance with these Terms, Avocado grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Avocado reserves all rights in and to the Application not expressly granted to you under these Terms.

Accessing and Downloading the Application from iTunes

The following applies to any App Store Sourced Application:

  1. You acknowledge and agree that (i) these Terms are concluded between you and Avocado only, and not Apple, and (ii) Avocado, 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.
  2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
  3. 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 Avocado 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 Avocado.
  4. You and Avocado acknowledge that, as between Avocado 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.
  5. You and Avocado 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 Avocado and Apple, Avocado, 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 these Terms.
  6. You and Avocado acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
  7. Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.

Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Services or Application (“Feedback”). You may submit Feedback by emailing us at support@avocado.io or through the support section of the Site and Application. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

General Prohibitions

You agree not to do any of the following:

  1. Post, upload, publish, submit or transmit any 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 or entity; or (vii) promotes illegal or harmful activities or substances.
  2. Use, display, mirror or frame the Site or Application, or any individual element within the Site, Services or Application, Avocado’s name, any Avocado trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Avocado’s express written consent;
  3. Access, tamper with, or use non-public areas of the Site or Application, Avocado’s computer systems, or the technical delivery systems of Avocado’s providers;
  4. Attempt to probe, scan, or test the vulnerability of any Avocado system or network or breach any security or authentication measures;
  5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Avocado or any of Avocado’s providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
  6. Attempt to access or search the Site, Services, Application or Collective Content or download Collective Content from the Site, Services or Application through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Avocado or other generally available third party web browsers;
  7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
  8. Use any meta tags or other hidden text or metadata utilizing a Avocado trademark, logo URL or product name without Avocado’s express written consent;
  9. Use the Site, Services, Application or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
  10. 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 Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
  11. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content;
  12. 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 Site, Services or Application;
  13. Collect or store any personally identifiable information from the Site, Services or Application from other users of the Site, Services or Application without their express permission;
  14. Impersonate or misrepresent your affiliation with any person or entity;
  15. Violate any applicable law or regulation; or
  16. Encourage or enable any other individual to do any of the foregoing.

Avocado will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Avocado may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Avocado has no obligation to monitor your access to or use of the Site, Services, Application or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Site, Services and Application, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Avocado reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Avocado, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site, Services or Application.

Avocado respects copyright law and expects its users to do the same. It is Avocado’s policy to terminate in appropriate circumstances Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Avocado’s Copyright Policy at http://avocado.io/copyright, for further information.

The Site, Services or Application may contain links to third-party websites or resources. You acknowledge and agree that Avocado is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Avocado of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources.

Termination and Account Cancellation

If you breach any of these Terms, Avocado will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. Avocado reserves the right to revoke your access to and use of the Site, Services, Application and Collective Content at any time, with or without cause. You may cancel your Account at any time by accessing the settings section of the Site or Application.

Disclaimers

THE SITE, SERVICES, APPLICATION AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, AVOCADO EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. AVOCADO MAKES NO WARRANTY THAT THE SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. AVOCADO MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR COLLECTIVE CONTENT PURCHASED OR OBTAINED THROUGH THE SITE, SERVICES OR APPLICATION OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE, SERVICES OR APPLICATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AVOCADO OR THROUGH THE SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, SERVICES AND APPLICATION AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, SERVICES OR APPLICATION. YOU UNDERSTAND THAT AVOCADO DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE, SERVICES OR APPLICATION, NOR DOES AVOCADO MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, SERVICES OR APPLICATION. AVOCADO MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, SERVICES OR APPLICATION OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, SERVICES OR APPLICATION. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, SERVICES AND APPLICATION AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, SERVICES OR APPLICATION, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.

Indemnity

You agree to defend, indemnify, and hold Avocado, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services, Application or Collective Content, or your violation of these Terms.

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES, APPLICATION AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER Avocado NOR ANY OTHER person or entity involved in creating, producing, or delivering the Site, Services, APPLICATION or Collective Content will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the SITE, ServiceS, APPLICATION OR COLLECTIVE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF the SITE, SERVICES OR APPLICATION OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, SERVICES OR APPLICATION] whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not AVOCADO has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

In no event will Avocado’s aggregate liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT EXCEED FIFTY DOLLARS ($50). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AVOCADO AND YOU. [SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of Avocado used herein are trademarks or registered trademarks of Avocado. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Controlling Law and Jurisdiction

These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

Export Control

You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced Application, 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.

Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between Avocado and you regarding the Site, Services, Application and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Avocado and you regarding the Site, Services, Application and Collective Content.

Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without Avocado’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Avocado may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Avocado: (i) via email (in each case to the address that you provide); (ii) by posting to the Site; or (iii) via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Dispute Resolution

You and Avocado agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site, Services or Application (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Avocado are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Avocado otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://adr.org/aaa/ShowPDF?doc=ADRSTG_004314.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure. Unless you and Avocado otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Avocado submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Avocado will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Avocado will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes. Notwithstanding the provisions of the “Modification” section above, if Avocado changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to support@avocado.io) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Avocado’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Avocado in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

General

The failure of Avocado to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Avocado. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

Contacting Avocado

If you have any questions about these Terms or any App Store Sourced Application, please contact Avocado at support@avocado.io or (415) 322-8170.