Merchant/Partner Terms of Service
Last updated on: March 29, 2018
By signing up for the AVOCADO services or any of the services of Photon Technologies Inc. (DBA AVOCADO) or its affiliates (“AVOCADO”) you are agreeing to be bound by the AVOCADO Partner terms and conditions (“Partner Terms of Service”). The services offered by AVOCADO under the Partner Terms of Service include various products and services to help you sell, pickup and deliver goods and services to buyers online (“Online Services”). Any such services offered by AVOCADO are referred to in these Partner Terms of Services as the “Services”. Any new features or tools which are added to the current Services shall be also subject to the Partner Terms of Service. You can review the current version of the Partner Terms of Service at any time at https://www.avocadonext.com/partner/terms-of-service. AVOCADO reserves the right to update and change the Partner Terms of Service by posting updates and changes to the AVOCADO website (https://avocadonext.com). You are advised to check the Partner Terms of Service from time to time for any updates or changes that may impact you.
1. Account Terms
1. You must be 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use this Service.
2. To access and use the Services, you must register for a AVOCADO account (“Account”) by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. AVOCADO may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
3. You acknowledge that AVOCADO will use the email address you provide as the primary method for communication.
4. You are responsible for keeping your password secure. AVOCADO cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password.
5. You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (“Materials”).
6. A breach or violation of any term in the Terms of Service, including the AUP, as determined in the sole discretion of AVOCADO will result in an immediate termination of your services.
2. Account Activation
2.1 AVOCADO Account
1. Subject to section 2.1.2, the person signing up for the Service will be the contracting party (“Account Owner”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Account Owner in connection with the Service.
2. If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
3. General Conditions
1. Technical support is only provided to paying Account holders and is only available via email.
2. These Terms are governed by and construed in accordance with the laws of the State of California, U.S.A. therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of California with respect to any dispute or claim arising out of or in connection with the Terms of Service.
3. You acknowledge and agree that AVOCADO may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on AVOCADO’s website, available at https://www.avocadonext.com/partner/terms-of-service and such amendments to the Terms of Service are effective as of the date of posting. Your continued use of the Services after the amended Terms of Service are posted to AVOCADO’s website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, do not continue to use the Service.
4. You may not use the AVOCADO service for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of Canada and the Province of Ontario. You will comply with all applicable laws, rules and regulations in your use of the Service.
5. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by AVOCADO.
6. You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use AVOCADO or AVOCADO trademarks and/or variations and misspellings thereof.
7. Questions about the Terms of Service should be sent to support@AVOCADO.com.
8. You understand that your Materials (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit Card information is always encrypted during transfer over networks.
4. AVOCADO Rights
1. We reserve the right to modify or terminate the Service for any reason, without notice at any time.
2. We reserve the right to refuse service to anyone for any reason at any time.
3. We may, but have no obligation to, remove Materials and suspend or terminate Accounts if we determine in our sole discretion that the goods or services offered via a store, or the Materials uploaded or posted to a store, violate our Acceptable Use Policy (“AUP”) or these Terms of Service.
4. Verbal or written abuse of any kind (including threats of abuse or retribution) of any AVOCADO customer, AVOCADO employee, member, or officer will result in immediate Account termination.
5. AVOCADO does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from the Service.
6. We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that AVOCADO employees and contractors may also be AVOCADO customers/merchants and that they may compete with you, although they may not use your confidential information in doing so.
7. In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
8. AVOCADO retains the right to determine, in our sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful Account owner, AVOCADO reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.
5. Limitation of Liability
1. You expressly understand and agree that AVOCADO shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the use of or inability to use the service.
2. In no event shall AVOCADO or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with our site, our services or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, AVOCADO partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference (including the AUP), or your violation of any law or the rights of a third party.
3. Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
4. AVOCADO does not warrant that the Service will be uninterrupted, timely, secure, or error-free.
5. AVOCADO does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
6. AVOCADO does not warrant that the quality of any products, services, information, or other Materials purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
6. Waiver and Complete Agreement
The failure of AVOCADO to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service and the documents it incorporates by reference constitute the entire agreement between you and AVOCADO and govern your use of the Service, superseding any prior agreements between you and AVOCADO (including, but not limited to, any prior versions of the Terms of Service).
7. Intellectual Property and Customer Content
1. We do not claim any intellectual property rights over the Materials you provide to the AVOCADO service. All Materials you upload remains yours. You can remove your AVOCADO store at any time by deleting your Account.
2. By uploading Materials, you agree: (a) to allow other internet users to view the Materials you post publicly to your store; (b) to allow AVOCADO to store, and in the case of Materials you post publicly, display, your Materials; and (c) that AVOCADO can, at any time, review all the Materials submitted to its Service, although AVOCADO is not obligated to do so.
3. You retain ownership over all Materials that you upload to a AVOCADO store; however, by making your store public, you agree to allow others to view Materials that you post publicly to your store. You are responsible for compliance of the Materials with any applicable laws or regulations.
4. We will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any Materials or information provided by you to us which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
5. As used herein, “Confidential Information” means all confidential information disclosed by a party (a “Disclosing Party”) to the other party (a “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party will include the terms and conditions of the Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement; and (c) limit access to the Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6. AVOCADO shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your store to promote the Service.
8. Delivery Services
1. AVOCADO shall use commercially reasonable efforts to provide its technology platform to enable You to offer same day delivery services to your customers. AVOCADO may change or discontinue the Services at any time without notice, but any change shall only apply to You prospectively after the effective date of the change. You acknowledge and agree that: (a) the Services may be performed by or on behalf of AVOCADO; and (b) for quality assurance and training purposes, communications between You and your personnel and AVOCADO personnel may be monitored and/or recorded.
2. AVOCADO reserves the right to engage independent contractors to provide certain Services. For the avoidance of doubt, AVOCADO is not a Broker, Freight Forwarder, Motor Carrier or Shipper as such terms may be defined in rules or regulations issued by the Federal Motor Carrier Safety Administration or in any other similar rules or regulations or by any other governmental body. Customer acknowledges that the Services are not intended to be contract carriage as defined in 49 U.S.C. § 13102(4) and § 14101(b).
9. Independent Contractor
AVOCADO is and shall be an independent contractor and not Partner’s employee or agent. AVOCADO has the right to be employed by, contract with or otherwise perform the same or similar services for other individuals or entities. AVOCADO is solely responsible for paying all taxes, insurance and any other cost required by applicable U.S. law.
10. No Poaching
During the Term and for a period of six (6) months following the expiration or any earlier termination of the Agreement, You agree not to hire, solicit or entice any person AVOCADO engages to provide the Services as a result of your use of the AVOCADO service, to perform any delivery service whatsoever for you in replacement of any delivery service that could be provided to you through your use of the AVOCADO service.
11. AVOCADO Experts
1. AVOCADO Experts is an online directory of independent third parties ("Experts") that can help you build and operate your AVOCADO store. AVOCADO does not employ Experts and is in no way affiliated with Experts.
2. AVOCADO does not endorse Experts and takes no responsibility for any work performed by Experts or failure to fulfill a work order. Links to websites of Experts, announcements about services or offers, and responses to email inquiries regarding Experts, are provided solely for informational purposes at the discretion of AVOCADO and shall not be construed or imply permission, or an affiliation, position regarding any issue in controversy, authentication, appraisal, sponsorship, nor a recommendation or endorsement of any website, product, service, activity, business, organization, or person, and any offers, products, services, statements, opinions, content or information on any linked third-party website.
3. Under no circumstances shall AVOCADO be liable for any direct, indirect, incidental, special, consequential, exemplary or other damages whatsoever, including, without limitation, any direct, indirect, incidental, special, consequential, exemplary or other damages that result from any contractual relationship between you and AVOCADO experts. These limitations shall apply even if AVOCADO has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by law.
12. Payment of Fees
1. You will pay the Fees applicable to your subscription to Online Service and/or POS Services (“Subscription Fees”) and any other applicable fees, including but not limited to fees relating to the processing of transactions under your Account (“Transaction Fees”), and any fees relating to your purchase of any products or services such as POS Equipment, shipping, apps, Themes, domain names or Third Party Services (“Additional Fees”). Together, the Subscription Fees, Transaction Fees and the Additional Fees are referred to as the “Fees”.
2. You must keep a valid credit card on file with us to pay for all incurred and recurring Fees. AVOCADO will charge applicable Fees to the credit card account that you authorize (“Authorized Card”), and AVOCADO will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
3. Subscription Fees are paid in advance and will be billed in 30 day intervals (each such date, a “Billing Date”). Transaction Fees and Additional Fees will be charged from time to time at AVOCADO’s discretion. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Account Owner via the email provided. As well, an invoice will appear on the Account page of your AVOCADO administration console. Users have approximately two weeks to bring up and settle any issues with the billing of Subscription Fees.
4. If we are not able to process payment of Fees using the Authorized Card, we will make a second attempt to process payment using the Authorized Card 3 days later. If the second attempt is not successful, we will make a final attempt 3 days following the second attempt. If our final attempt is not successful, we may suspend and revoke access to your Account. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next Billing Cycle. You will not be able to access your Account during any period of suspension. If the outstanding Fees remain unpaid for 60 days following the date of suspension, AVOCADO reserves the right to terminate your Account.
5. All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”).
6. If you are resident in the U.S., Taxes may apply to your subscription to or purchase of some or all of AVOCADO’s products and services, including without limitation, your subscription to or purchase of AVOCADO’s Online Services, apps. Any applicable Taxes are based on the rates applicable to the U.S. billing address you provide to us, and will be calculated at the time of purchase of the applicable Taxable Offerings. Such amounts are in addition to the Fees for the Taxable Offerings and will be billed to your Authorized Card. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such a certificate.
7. To the extent that you are an individual and not a corporation or other legal entity, and your location of usage changes to a place in Canada or the U.S., you must advise us immediately by email to firstname.lastname@example.org.
8. AVOCADO does not provide refunds.
13. Cancellation and Termination
1. This Agreement will commence on the first day after: (a) You sign an agreement with AVOCADO; and will remain in full force and effect for twelve (12) months, after which this Agreement will automatically renew for additional consecutive one (1) year periods (each a “Renewal Term”), unless either party provides advance written notice of non- renewal at least ninety (90) days prior to the end of the Initial Term or any then-current Renewal Term. The Initial Term and any Renewal Terms are together referred to herein as the “Term.”
2. The Agreement may be terminated by either party upon thirty (30) days advance written notice, with or without cause.
3. Expiration or earlier termination of the Agreement shall not affect any amounts due under this Agreement that exist as of the date of such expiration or termination and a party shall have thirty (30) days in which to make payment to the other party for any amounts then owing in accordance with these Terms. Settling of accounts in the manner set forth in the foregoing sentence and termination of this Agreement shall be the exclusive remedy of the parties for breach of this Agreement, except for a breach of Section 7.5 (Confidentiality), 5.2 (Indemnification) or 10. (No Poaching).
14. Modifications to the Service and Prices
1. Prices for using the Services are subject to change upon 30 days notice from AVOCADO. Such notice may be provided at any time by posting the changes to the AVOCADO Site (AVOCADO.com) or the administration menu of your AVOCADO store via an announcement.
2. AVOCADO reserves the right at any time, and from time to time, to modify or discontinue, the Service (or any part thereof) with or without notice.
3. AVOCADO shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
15. Third Party Services
1. In addition to these Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, AVOCADO’s partners or other third parties.
2. AVOCADO may from time to time recommend, provide you with access to, or enable third party software, applications (“Apps”), products, services or website links (collectively, “Third Party Services”) for your consideration or use, including via the AVOCADO App Store. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). Any use by you of Third Party Services offered through the Services or AVOCADO’s website is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them.
3. We do not provide any warranties with respect to Third Party Services. You acknowledge that AVOCADO has no control over Third Party Services, and shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on AVOCADO’s websites, including the AVOCADO App Store, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with AVOCADO. AVOCADO does not guarantee the availability of Third Party Services and you acknowledge that AVOCADO may disable access to any Third Party Services at any time in its sole discretion and without notice to you. AVOCADO is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. AVOCADO strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates you should charge to your customers.
4. If you install or enable a Third Party Service for use with the Services, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. AVOCADO is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials.
5. Google Maps is a Third Party Service that is used within the Services. Your use of the Service is subject to your acceptance of the Google Maps and Earth Enterprise Universal Acceptable Use Policy, as it may be amended by Google from time to time.
6. Under no circumstances shall AVOCADO be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider, including any Expert. These limitations shall apply even if AVOCADO has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
7. You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, AVOCADO partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
16. DMCA Notice and Takedown Procedure
AVOCADO supports the protection of intellectual property and asks AVOCADO merchants to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a DMCA Notice to AVOCADO’s designated agent using our form. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material.
17. Privacy & Data Protection
Photon Technologies Inc. (DBA AVOCADO)
2040 Martin Avenue, Santa Clara, CA 95050