Last Updated: Jan 15, 2018
1. Contractual Relationship
Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and AVOCADO. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. AVOCADO may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in region-specific disclosures (e.g., a particular city webpage) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
AVOCADO may amend the Terms related to the Services from time to time. Amendments will be effective upon AVOCADO’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2. The Services
The Services comprise a platform that presents you with a set of one or more retailer virtual storefronts from which you can select goods for picking, packing, and delivery by individual personal shoppers (“Personal Shoppers”) to your location or, if available, for you to pick up in-store. In some cases, picking, packing, or delivery services may be performed by third parties including a retailer or third party logistics provider (collectively, “Third Party Providers”).
Delivery may be conducted by each individual Personal Shopper’s select method of transportation. You acknowledge that transportation or logistics services are provided by third party independent contractors who are not employed by AVOCADO.
When you use the Services to place an order for products, you authorize the purchase and delivery of those products from the retailers you select. Unless otherwise specified, you acknowledge and agree that AVOCADO and the Personal Shopper are acting as your agents in picking, packing, and/or delivery of goods purchased by you and are not the seller of the goods to you. You agree that your purchase is being made from the retailer you have selected, that retailer is the merchant of record, and that title to any goods passes to you when they are purchased at the applicable retailer’s store. You agree that AVOCADO or the applicable retailer will obtain a credit card authorization for your credit card on file with AVOCADO to cover the cost of the goods you have purchased from the retailer and any separate AVOCADO fees, and your card will be charged for the goods purchased by you and any applicable fees. Your card may be temporarily authorized for an amount greater than the total amount of the purchase appearing in the original check out. This higher authorized amount will be disclosed during the purchase process and is a temporary authorization charge on your order, to deal with situations where your total purchase amount turns out to be higher than the original amount due to special requests, added items, replacement items or weight adjustments.
You also acknowledge and agree that, except as expressly provided for otherwise in these Terms or a separate agreement between you and AVOCADO, AVOCADO does not form any employment or agency relationship with you and does not hold title to any goods that you order through the Services.
Unless otherwise indicated, all prices and other amounts are in the currency of the jurisdiction where the delivery takes place.
Occasionally there may be information on the Services that contains typographical errors, inaccuracies, or omissions that may relate to pricing, product descriptions, promotions offers, and availability. AVOCADO reserve the right to correct any errors, inaccuracies or omissions and to change or update information or refuse or cancel orders if any information on the sites is inaccurate at any time without prior notice (including after you have submitted your order and/or your credit card has been charged).
Subject to your compliance with these Terms, AVOCADO grants you a limited, non-exclusive, non-sub licensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by AVOCADO and AVOCADO’s licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by AVOCADO; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Provision of the Services.
You acknowledge that portions of the Services may be made available under AVOCADO’s various brands or request options associated with transportation or logistics. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of AVOCADO’s subsidiaries and affiliates; or (ii) independent Third Party Providers.Third Party Services and Content.
The Services and all rights therein are and shall remain AVOCADO’s property or the property of AVOCADO’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner AVOCADO’s company names, logos, product and service names, trademarks or services marks or those of AVOCADO’s licensors.
3. Your Use of the Services
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account“). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to AVOCADO certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or AVOCADO’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by AVOCADO in writing, you may only possess one Account.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive AVOCADO services unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes. You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
User Provided Content.
AVOCADO may, in AVOCADO’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to AVOCADO through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content“). Any User Content provided by you remains your property. However, by providing User Content to AVOCADO, you grant AVOCADO a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and AVOCADO’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant AVOCADO the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor AVOCADO’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by AVOCADO in its sole discretion, whether or not such material may be protected by law. AVOCADO may, but shall not be obligated to, review, monitor, or remove User Content, at AVOCADO’s sole discretion and at any time and for any reason, without notice to you.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. AVOCADO does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
4. AVOCADO Communications
By creating an AVOCADO user account, you agree to accept and receive communications from AVOCADO or Personal Shoppers, including via e-mail, text message, calls, and push notifications to the cellular telephone number you provided to AVOCADO. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of AVOCADO, its affiliated companies and/or Personal Shoppers, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may opt out of such communications at any time in Your Account Settings. You may also opt-out of receiving text messages from AVOCADO by replying “STOP” from the mobile device receiving the messages.
5. AVOCADO Membership
AVOCADO Membership is a grocery delivery Membership that provides free 2-hour and scheduled deliveries on orders over $35 (“Free Deliveries”) placed through the Services for a monthly or yearly fee. Free Deliveries are subject to availability and service fees, special handling fees, and/or taxes may still apply.
We understand that life is busy. Therefore, BY DEFAULT (AND WITH PRIOR NOTICE TO THE EXTENT REQUIRED BY APPLICABLE LAW), YOUR AVOCADO MEMBERSHIP WILL AUTOMATICALLY RENEW, AND THE APPLICABLE MEMBERSHIP FEE WILL BE AUTOMATICALLY CHARGED TO YOU AT THE TIME OF RENEWAL. If you do not want your Membership to automatically renew, you can change this default in Your Account Settings.
You can cancel your AVOCADO Membership at any time in Your Account Settings. If you participated in a free or other promotional Membership period for AVOCADO Membership, you may cancel within the first 48 hours of your paid AVOCADO Membership and receive a pro rata refund of your AVOCADO Membership fee. For all other members, if you cancel your AVOCADO Membership within the first 14 days, AVOCADO will refund your AVOCADO Membership fee on a pro rata basis. If you cancel at any other time, you will not receive a refund, but you can continue to enjoy the Free Deliveries through the end of your billing period
From time to time, AVOCADO offers some customers trial or other promotional memberships to AVOCADO Membership. Such trial or promotional memberships are subject to these Terms except as otherwise stated in the promotional offer. Only one trial or promotional Membership is available per household. AVOCADO will bill you the applicable fee after your free trial period has expired. If you cancel AVOCADO Membership before the trial period has expired, AVOCADO will not charge you. AVOCADO may change the monthly or annual fee charged for AVOCADO Membership at any time, but any such fee change will not apply to current AVOCADO Membership members until such time as your current Membership expires and your Membership is renewed for another term.
We may change other terms or conditions applicable to AVOCADO Membership from time to time. Any new or renewed AVOCADO Membership will be subject to the terms and conditions active at that time and displayed when you sign up for AVOCADO Membership. AVOCADO may also make such changes with respect to current AVOCADO memberships. In that case, AVOCADO will provide you with notice at checkout of the changes and when those changes will take effect. If you disagree with the changes to your current AVOCADO Membership terms and conditions, you may cancel your AVOCADO Membership and receive a refund of your Membership fee on a pro rata basis calculated from the end of the month during which you cancel the Membership.
Your AVOCADO Membership cannot be transferred or assigned. AVOCADO reserves the right to accept, refuse, or cancel your AVOCADO Membership at any time in its sole discretion. If AVOCADO cancels your AVOCADO Membership, you will receive a refund of your Membership fee on a pro rata basis calculated from the end of the month during which your Membership was cancelled. If you participated in a free or other promotional Membership period for AVOCADO Membership, and AVOCADO cancels your AVOCADO Membership, only fee paid by you will be refunded on a pro-rata basis calculated from the end of the month during which your Membership was cancelled. So for example, if AVOCADO Membership costs $99.99 a year and you paid $50 for AVOCADO Membership for 12 months and got a promotion for $49.99 off on your AVOCADO Membership, and you canceled service after 6 months, you will be refunded $25 for the 6 months remaining. If no fee has been paid by you for AVOCADO Membership, no fee will be refunded.
6. AVOCADO Coupons and Promotional Codes
AVOCADO Coupons are manufacturer’s coupons that are automatically applied to qualifying products upon purchase to help users save money on the products they love. Coupons are available for a limited time only and may be subject to certain restrictions. Coupons are subject to change, cancellation, or expiration at any time. If you do not purchase the qualifying items added to your cart while the Coupon is still in effect, the Coupon’s offer will not apply. Coupons apply only to qualifying items displaying the offer and may not be combined with other promotional offers or mail-in rebates. AVOCADO is not a retailer or seller. Coupons are issued and paid by the manufacturer of the advertised product. The user is required to pay any applicable sales tax related to use of the Coupon. When Coupons are redeemed, sales tax may be charged on the undiscounted original price of the product(s). Coupons may not be sold, copied, modified, or transferred. A Coupon has no cash value. Coupons good while supplies last. Void where restricted or prohibited by law.
AVOCADO may, in AVOCADO’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services subject to any additional terms that AVOCADO establishes on a per promotional code basis (“Promo Codes“). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by AVOCADO; (iii) may be disabled by AVOCADO at any time for any reason without liability to AVOCADO; (iv) may only be used pursuant to the specific terms that AVOCADO establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. AVOCADO reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that AVOCADO determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
7. Transactions involving Alcohol
You may have the option to order delivery of alcohol products in some locations and from certain retailers. You agree that you will comply with all applicable laws and not cause AVOCADO, your Personal Shopper, or any retailer to contravene any applicable laws. You agree that you are of legal drinking age for purchasing, possessing, and consuming alcohol (i.e., 21 years of age or older in the United States, 18 years of age or older in Alberta, Manitoba, and Quebec, and 19 years of age or older in all other Canadian provinces or territories). If you order alcohol products, you understand and acknowledge that neither AVOCADO nor a Personal Shopper can accept your order of alcohol products, and the order will only be delivered if the retailer accepts your order. You agree that, upon delivery of alcohol products, the recipient will provide valid government-issued identification proving their age to the Personal Shopper delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. You agree that if any applicable legal requirements for the delivery of alcohol are not met, AVOCADO reserves the right to cancel the alcohol-related portion of your order.
8. Third-party Products and Content
You agree that AVOCADO does not assume responsibility for any products, content, services, websites, advertisements, offers, or information that is provided by third parties and made available through the Services. If you purchase, use, or access any such products, content, services, advertisements, offers, or information through the Services, you agree that you do so at your own risk and that AVOCADO will have no liability based on such purchase, use, or access.
You understand that use of the Services may result in charges to you for the services or goods you receive (“Charges“). After you have received services or goods obtained through your use of the Service, AVOCADO will facilitate your payment of the applicable Charges. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by AVOCADO.
All Charges are due immediately and payment will be facilitated by AVOCADO using the preferred payment method designated in your Account, after which AVOCADO will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that AVOCADO may use a secondary payment method in your Account, if available.
As between you and AVOCADO, AVOCADO reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in AVOCADO’s sole discretion. AVOCADO will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. AVOCADO may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. AVOCADO does not designate any portion of your payment as a tip or gratuity. Any representation by AVOCADO (on AVOCADO’s website, in the Application, or in AVOCADO’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that AVOCADO Charges any additional amounts. You understand and agree that, while you are free to provide additional payment as a gratuity to any AVOCADO service person who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback.
10. SERVICE PROVIDED AS-IS AND RELEASE OF CLAIMS
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INSTACART DISCLAIMS ALL REPRESENTATIONS, CONDITIONS, AND WARRANTIES, EXPRESS, LEGAL, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INSTACART MAKES NO REPRESENTATION, WARRANTY, CONDITIONS, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES, ANY SERVICES PROVIDED BY PERSONAL SHOPPERS OR THIRD PARTY PROVIDERS, OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES FROM RETAILERS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. INSTACART DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF PERSONAL SHOPPERS, THIRD PARTY PROVIDERS, OR RETAILERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, ANY SERVICES PROVIDED BY PERSONAL SHOPPERS OR THIRD PARTY PROVIDERS, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU, REMAINS SOLELY WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER INSTACART NOR ITS AFFILIATES, RETAIL PARTNERS, LICENSORS, OR SUPPLIERS IS RESPONSIBLE FOR THE FITNESS OR CONDUCT OF ANY PERSONAL SHOPPER OR THIRD PARTY PROVIDER OR FOR ANY SERVICES PROVIDED BY ANY PERSONAL SHOPPER OR THIRD PARTY PROVIDER. NEITHER INSTACART NOR ITS AFFILIATES, RETAIL PARTNERS, LICENSORS, OR SUPPLIERS WILL BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY PERSONAL SHOPPER OR THIRD PARTY PROVIDER.
If you have a dispute with one or more Personal Shoppers or Third Party Providers, you agree to release AVOCADO (including AVOCADO’s affiliates, and each of their respective officers, directors, employees, agents, shareholders, retail partners, licensors, and suppliers) from any claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes.
Furthermore, you expressly waive any rights you may have under California Civil Code Section 1542 (or analogous laws of other jurisdictions), 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.”
11. Limitation of Liability; Indemnity.
THIS PROVISION APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT SHALL INSTACART (INCLUDING ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, RETAIL PARTNERS, LICENSORS, AND SUPPLIERS) BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICES, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR THESE TERMS, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF INSTACART OR INSTACART’S AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL INSTACART (INCLUDING ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, RETAIL PARTNERS, LICENSORS, AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY AND/OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY, DEATH AND/OR EMOTIONAL DISTRESS AND DISCOMFORT) ARISING OUT OF YOUR USE OF THE SERVICES, ANY SERVICES PROVIDED BY PERSONAL SHOPPERS OR THIRD PARTY PROVIDERS, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU, EVEN IF INSTACART OR INSTACART’S AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
INSTACART, ITS AFFILIATES, RETAIL PARTNERS, LICENSORS, SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES, ANY SERVICES PROVIDED BY PERSONAL SHOPPERS OR THIRD PARTY PROVIDERS, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU FOR MORE THAN THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO INSTACART FOR THE PAST 12 MONTHS OF THE SERVICES.
You agree to defend, indemnify and hold harmless AVOCADO and its officers, directors, employees, agents, shareholders, affiliates, and retail partners (each, an “Indemnified Party”) from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ and experts’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from your unauthorized use of the Services or from any breach by you of these Terms, including without limitation any actual or alleged violation of any law, rule or regulation.
12. Dispute Resolution
You 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 Services (collectively, “Disputes“) will be settled by binding arbitration between you and AVOCADO, 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 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.
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 www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) 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.
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 attorney’s’ fees and expenses, to the extent provided under applicable law. AVOCADO will not seek, and hereby waives all rights AVOCADO may have under applicable law to recover, attorneys’ fees and expenses if AVOCADO prevail in arbitration.
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)).
Notwithstanding the provisions of the modification-related provisions 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 providing AVOCADO written notice of such rejection by mail or hand delivery to: Photon Technologies, Inc., ATTN: Dispute Resolution, 2040 Martin Ave, Santa Clara, CA 95050, or by email from the email address associated with your Account to: change-dr@AVOCADOnext.com, within 30 days of the date such change became effective, as indicated in the “Last update” date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, 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).
You can stop using the Services at any time and without notice to us. Similarly, AVOCADO may terminate access to the Services to you or any other users or stop offering the all or part of the Services at any time without notice. In the event of Termination, Section 1-3 and Sections 6-12 survive and continue to apply to you.
14. Other Provisions
Choice of Law.
These Terms are governed by and construed in accordance with the laws of the State of California, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in supplemental terms applicable to your region.
Claims of Copyright Infringement.
Claims of copyright infringement should be sent to AVOCADO’s designated agent. Please visit AVOCADO’s web page at www.AVOCADOnext.com/legal/usa/copyright for the designated address and additional information.
AVOCADO may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to AVOCADO, with such notice deemed given when received by AVOCADO, at any time by first class mail or pre-paid post to Photon Technologies, Inc., ATTN: User Notices, 2040 Martin Ave, Santa Clara, CA 95050.
You may not assign these Terms without AVOCADO’s prior written approval. AVOCADO may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of AVOCADO’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, AVOCADO or any AVOCADO Service Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. AVOCADO’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by AVOCADO in writing.