This Policy was last updated on February 10, 2022.
IMPORTANT LEGAL INFORMATION: PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE AND THE PRODUCTS AND SERVICES AVAILABLE FOR SALE THROUGH THE SERVICE.
THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
If you want to access or use the Service, then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations. Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted. Therefore, do not use the Service if you do not agree. In the event of a violation of these Terms, we reserve the right to seek all remedies available by law and in equity.
The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and the arbitration of certain disputes – we would not make the Service available to you.
Table of Contents
It is important that you read and understand these entire Terms before using the Service. Please note that the complete provisions, and not the headings or summaries shall govern. Any capitalized terms have the meanings given to them where defined in the Terms.
Service Content, Ownership, Limited License and Rights of Others
We only grant you a limited, revocable right to use the Service for your own non-commercial use, subject to rules and limitations.
Service and Content Use Restrictions
Your use of our Service is subject to various restrictions designed to protect the Service and our users. We may change or discontinue our Service in whole or in part.
Terms Applicable to Purchases
If you purchase products and services from us via the Service, including through use of our membership feature, these terms apply.
You may have the opportunity to open, revise and close your accounts, subject to certain rules. We may offer you the ability to make choices regarding how and to whom some aspects of your account are used and seen, but these may not be completely effective.
Your User Content and Community Usage Rules
You grant us a broad license, which we may sublicense, to the content you submit which you represent you have the right to allow us to use. You, however, retain ownership of and responsibility for, your content. Use of our Service is subject to community usage rules and we have the right to manage our Service to keep its content appropriate.
Notice of Copyright Infringement under the “Digital Millennium Copyright Act” (DMCA)
Users may not post content they do not own or have a license to use, and may be suspended or terminated if they do so. Copyright owners may give us notice of infringement by following specific instructions specifically addressed in this Section.
Procedure For Alleging Infringement of Other Intellectual Property
You can also give notice of trademark and other infringements that you think occur on the Service.
Notices and Questions
You agree we may provide you notices, including of new terms and conditions, by posting notice on the home page of the Service, changing the date at the beginning of these Terms or by other reasonable means that we may elect, such as to the email address you provided.
Linked-To Websites; Advertisements; Dealings with Third Parties
We are not responsible for third parties or their content, advertisement(s), apps, sites, products and/or services. We may make advertisements and third-party content or services available to you on or via our Service, which we do not control. Use caution when dealing with third parties.
Wireless carrier charges may apply to use of the Service via wireless networks or Devices.
You agree to arbitrate most disputes and waive jury trial and class actions and to bring many types of claims within one (1) year.
Disclaimer of Representations and Warranties
We disclaim warranties to the extent permitted by applicable law and provide the Service “As Is”.
Limitations of our Liability
Our liability is greatly limited.
Waiver of Injunctive or Other Equitable Relief
You waive equitable or injunctive relief.
Updates to Terms
These Terms and Additional Terms posted on the Service at each time of use apply to that use, and the Terms may be prospectively updated as our Service evolves. Posting of new Terms on the Service is notice to you thereof.
You agree to various other terms and conditions, which you should read here, including regarding: (a) our control and discretion; (b) your indemnity of us; (c) accessing the Service from outside of the United States; (d) enforcement and interpretation of these Terms; (e) communications with us; (f) investigations, cooperation with law enforcement, termination and survival; (g) limit on assignment and delegation of rights and obligations; (h) how waivers may be made; (i) your California consumer rights; and (j) your responsibility for your connectivity and access.
Terms Applicable for Apple Device Users
There are some other things you should know if you are accessing or using our mobile app through an Apple Device.
Service Content, Ownership, Limited License and Rights of Others
A. Content. The Service contains a variety of: (i) materials and other items relating to Avery+Madisson and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Avery+Madisson (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing collectively, “Content”).
B. Ownership. The Service (including past, present, and future versions) and the Content are owned by A+M, our licensors and/or certain other third parties. All right, title, and interest in and to the Content available via the Service is the property of A+M or our licensors or certain other third parties, and is protected by U.S., Canadian and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. A+M owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
C. Limited License. Subject to your strict compliance with these Terms and any Additional Terms, A+M grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in A+M’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
D. Rights of Others. When using the Service, you must respect the intellectual property and other rights of A+M and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Section 6 of this Policy below.
E. Special Notice. A+M and its affiliates have a no-tolerance policy regarding the use of our Content, including our Trademarks or names in metatags and/or hidden text. Specifically, the use of our Trademarks in metatag keywords is trademark infringement, and the use of Trademarks in page text, metatags, and/or hidden text for purposes of gaining higher rankings from search engines is unfair competition. Linking to any page on this Service is prohibited absent express written permission from A+M. Framing, inline linking or other association of this Service or its or its suppliers’ software or HTML code, scripts, text, artwork, photographs, images, video, and audio with links, advertisements and/or other information not originating from the Service is expressly prohibited.
Service and Content Use Restrictions
A. Service Use Restrictions. You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to A+M; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, A+M, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User Content (defined below); (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users and A+M); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any Additional Terms. A+M reserves the right to block or deny access to the Service to anyone at any time for any reason.
B. Content Use Restrictions. You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of A+M or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience
C. Availability of Service and Content. . A+M may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in A+M’s sole discretion, and without advance notice or liability.
D. Reservation of All Rights Not Granted as to Content and Service. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by A+M and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
Terms Applicable to Purchases
A. Purchases Generally. To purchase any products or services sold through the Service, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence or if you are a minor and have a valid gift card or a credit or debit card where an adult has listed you as an authorized user of their card. By submitting that information to us or to our third-party credit card processor or service provider, you agree that you authorize us and/or our processor or service provider to charge your card/account at our convenience. For any product or service that you order on the Service, you agree to pay the price applicable (including any sales taxes, shipping and handling fees and surcharges) as of the time you submit the order. We will automatically bill your credit card or other form of payment submitted as part of the order process for such price.
B. Methods of Payment, Credit Card Terms and Taxes. All payments must be made through any of the methods that are accepted at the time of payment by us or by our payment services provider. Your card issuer agreement governs your use of your designated card or payment account, and you must refer to that agreement and not these terms to determine your rights and liabilities as a card or account holder. If for any reason your default payment method is declined or no longer available, you authorize us to charge any other payment method that you have authorized for use on your account with us. You will remain responsible for any uncollected amounts. You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT US, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes, shipping and handling fees and surcharges) at the rates in effect when the charges were incurred. If we do not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by us or our agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. We will charge the applicable taxes in effect at the time of purchase. We shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that we deem is required in accordance with our order policy in effect at the time of purchase.
C. Cancellation Policy. All purchase transactions made through the Service are subject to our cancellation policy in effect at the time of purchase. We shall not be in default if delivery of content or personnel is delayed or rendered impossible by forces of nature, war, civil commotion, governmental action, terrorism, fire, storm, flood, explosion, strikes, walkouts, pandemic, other industrial disturbances, utility, services or transportation interruptions or any other cause beyond our reasonable control.
D. Contract/Order Acceptance Policy. Your receipt of an electronic or other form of contract/order confirmation does not signify our acceptance of your contract/order terms, nor does it constitute confirmation of our offer to sell content or provide services or that the price or availability of a such content/services has been confirmed. We reserve the right at any time after receipt of your contract/order to accept or decline your contract/order (or otherwise cancel your contract/order) for any reason. Your contract/order will be deemed accepted by us upon our delivery of the content or services that you have requested. We may require additional verifications or information before accepting any contract/order. Unlike off-the-shelf content orders, certain content or services may be made-on-demand and may be provided to you directly from the third party on-demand vendor and subject to additional delay due to production methods or availability of materials/other resources. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your contract/order or if we provide you less than the quantity you requested, your sole and exclusive remedy is either that: (a) we will issue a credit to your card or payment account in the amount charged for the cancelled portion or the quantity not provided (if your card/account has already been charged for the contract/order); or (b) we will not charge your card/account for the cancelled portion of the order or the quantity not provided. Do not assume that a cancellation or change of an order you have placed with us has been effectuated until you receive a confirmation from us via email. As stated above, you will be responsible for, and your credit/debit card or other third-party payment account may be charged for, the payment of all fees associated with orders already processed, provided, or shipped before your cancellation/change request or a request to terminate your contract/order was received. We may refuse any contract/order request that is connected with a previous credit card dispute or previous apparent fraudulent activity. We may refuse to accept any contract/order if fraudulent activity is suspected and we may refuse to process any subsequent contract/order from a customer who has a history of fraudulent activity.
E. No Responsibility to Sell Mispriced Content, Item, Products, or Services. We do our best to describe every item, product or service offered on the Service as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any content, item, product or service, we shall have the right to revoke any stated price and to correct the error, inaccuracy or omission (including after a purchase has been made) or to refuse or cancel any contracts/orders in our sole discretion (including any accepted contracts/orders). If we charged your credit/debit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge. If we accept and process your order where a pricing or specification error is obvious and unmistakable and could reasonably have been recognized by you as a mispricing or misdescription, we may cancel the sale, refund you any sums you have paid and require the return of any goods provided to you under the order. If the mispricing or misdescription is regarding a service, any remaining portion of such service may be immediately voided until the pricing or description is corrected and all revised terms are accepted, including corrections for any previous underpayment for such services already rendered or planned according to terms of prior agreement. If a product you purchased from us is not as described on the Service, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging, subject to the terms of the Return Policy. If any service performed is not as described, your sole remedy is to cancel any remaining services according to the terms of any contract or agreement currently in effect between you and us.
F. Modifications to Prices or Billing Terms. Purchases of products and services on the Service are subject to availability. All descriptions, images, references, features, content, information, specifications, products and prices described or depicted in connection with the Service are subject to change at any time without notice. We cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability and services, including for any items, products or services sold or provided by third parties (if any). We reserve the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice (including after a purchase has been made). Descriptive, typographic and photographic errors are subject to correction and we shall have no liability of any kind for such errors. We reserve the right to modify or cancel contracts/orders for any reason, including for typographical, pricing and other errors at any time. PRODUCTS AND SERVICES DISPLAYED ON THE SERVICE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME.
G. Offers and Discounts. For most promotional offers, such as coupons, vouchers, and discounts, restrictions apply. See offer for full terms and conditions applicable thereto. Offers are not valid on previously purchased products or services, services provided or rendered through third parties, gift cards, taxes or shipping and handling and there is no cash value. Limit one (1) offer per order. Offers may not be combined with other offers or promotions. Offers are not valid if reproduced and they are only accepted for a limited time. Please read the details of each offer, as coupons and promotional code restrictions vary. We reserve the right to modify, suspend, impose conditions on or cancel offers at any time without notice. If you return any of the items purchased with a discount offer, the discount or value may be subtracted from the return credit. We have no obligation for payment of any tax in conjunction with the distribution or use of any offer. You are required to pay any applicable sales tax related to the use of the offer.
H. Services Provided through Membership. There are some services eligible for membership. These services are typically rendered on a short- or long-term contractual basis and require recurring payment in advance.
(i) Membership and Recurring Charges Apply. The total cost charged to your payment method for each membership service will be the cost of the service on the day that order is processed, less any membership discount offered as a percentage or dollars off at the time you signed up, plus shipping and handling (if applicable) and any applicable sales tax. Your membership subscription will automatically renew at the end of the term you selected continuously and indefinitely without action by you, and the cost will be automatically charged to you at the time of renewal. A+M reserves the right to modify or cancel any discount (whether a discount on the price of the product, service, or any related shipping and handling charges) offered at the time you signed up for membership, with notice to you, and future orders fulfilled would reflect any such change. For each membership shipment made after the initial membership order is placed, you authorize A+M to charge the payment method you identified in your account as the default payment method. If we are unable to complete your membership order with the payment method you identified in your account as the default payment method, we will not fulfill the order or render additional services and will notify you that your payment method needs to be updated. In the event that we are unable to complete your membership order with the payment method you identified in your account as the default payment method, for three consecutive membership cycles, we will cancel your membership subscription. The actual cost of each cycle may vary depending on the item, service, and frequency chosen. You accept responsibility for all recurring charges and your membership will continue until you cancel your membership.
(ii) Cancellation. You may cancel membership at any time. To cancel, log in to your A+M account, select “My Subscriptions” and follow the prompts to cancel. You may also cancel by contacting A+M Client Engagement Services at firstname.lastname@example.org. If you cancel before the next recurring payment is charged, then your subscription will terminate automatically, and A+M will not charge your payment provider for any subsequent membership period. If you cancel while an order is in process, A+M will continue to process your order; your membership will terminate automatically after the last order is delivered or rendered. If you cancel your enrollment and then reactivate it, the discount applied to any membership item may not be the same discount in effect at the time of cancellation. If the membership discount for such item, product, or service changes, the new discount will be applied to your future shipments of that item.
(iii) Manage Your Memberships. You can manage or make changes to your memberships at any time by logging into your A+M account. Any changes you make will be reflected in your next cycle, except for changes initiated while a service or delivery is in process, in which case they will be reflected after the current contract/service/order has been completed.
(iv) Termination and Suspension. We may, in our sole discretion, terminate or suspend your enrollment in membership (and/or the entire membership program) for any reason at any time without notice in our sole discretion. If we do so, you will only be charged for contracts/services/orders that have been rendered pr delivered to you. A+M reserves the right to change the membership benefits, including the discount amounts and eligibility used to determine discount amounts, and the products eligible for membership at any time in its sole discretion. All changes will apply to future orders, including for current enrollments.
(v) Discounts, Price Adjustments and Rewards. Membership discounts and any limited time special membership enrollment promotions apply only to eligible items displaying the offer message on the membership item information pages, and then only if you select the membership delivery method and meet all stated qualifications for the discount or promotion. Enrollments are good while supplies last. Special limited time enrollment promotions only apply during their effective dates. Membership orders will not be eligible for price adjustments.
(vi) Returns. All returns under membership are subject to A+M approval.
(vii) Pricing and Product or Service Changes. A+M reserves the right to change the pricing of any product associated with membership at any time. In the event of a price change, A+M will post the new pricing on the website and attempt to notify you in advance by sending an email to the address you have registered for your account. You agree that we may change the pricing we charge you for your membership products or services by providing you with notice through an electronic communication from us and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. If you do not wish to accept a price, service, and/or product change made by us, you may cancel your membership using the process described above, otherwise you will be deemed to have consented to the price and/or change and authorize A+M to charge the new price to your payment method and/or send you the new product/provide you with the new service. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify A+M within sixty (60) days after they first appear on an account statement.
Your User Content and Community Usage Rules
A. User Content. We may at times invite you to respond to an invitation to post digital content in the manner specified (“User Content”), for example, by using the specified tags, (e.g., the hashtag and the brand tag) or by launching Content from the Service (the “Invitation”). By “User Content,” we mean all content, including, without limitation, product reviews, testimonials, messages, text, illustrations, files, images, graphics, photos, comments, feedback, surveys, responses, sounds, music, videos, information, content, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein that comprise the content that you post in response to such an Invitation or on the Service. By submitting your User Content or by applying any required hashtags or other tags, you agree to these Terms. Specifically, you:
Represent that you are a legal resident of the U.S., the District of Columbia, Puerto Rico, or other United States territory or possession, and are at least eighteen (18) years of age.
Represent that you own or have secured all rights, title, and interest in the User Content.
Represent that you have obtained express permission from everyone who took, or is appearing in, your User Content.
Acknowledge that you will not be compensated in any way for our use of your User Content.
Represent that you understand that we may retouch, edit or otherwise alter User Content (such as photos) without your ability to inspect or pre-approve.
If you do not fully consent to and authorize use of User Content as outlined here, do not respond to the Invitation. If you want to have your User Content taken off the Service at any time, please contact us. Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User Content and you remain ultimately responsible for it.
(ii) License to A+M of Your User Content. Except as otherwise described in any applicable Additional Terms, you grant to A+M the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, adopt, publish in searchable format, and remove such User Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights, metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to A+M to your User Content, you also hereby grant to A+M, and agree to grant to A+M, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5(A)(ii).
(iii) Exclusive Right to Manage Our Service. A+M may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User Content, and A+M may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User Content without notice or any liability to you or any third party in connection with our operation of User Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules (defined in Section 5(B)). Such User Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User Content on the Service or elsewhere.
(ii) Enforcement. A+M has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at A+M’s cost and expense, to which you hereby consent and irrevocably appoint A+M as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
B. Community Usage Rules. As a user of the Service, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of visitors of the Service’s online forums and user content areas (collectively, “Communities”).
(i) Nature of Rules. Your participation in the Communities is subject to all of the Terms, including these Rules:
Your User Content. All of your User Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms. Your User Content should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User Content or has any rights to your User Content, or if anyone appears or is referred to in the User Content, then you must also have their permission to submit such User Content to A+M (for example, if someone has taken a picture of you and your friend, and you submit that photo to A+M as your User Content, then you must obtain your friend’s and the photographer’s permission to do so).
Speaking of Photos: No Pictures, Videos, or Images of Anyone Other Than You and Your Friends and Family. If you choose to submit photos to the Service, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their express permission to submit it.
Act Appropriately. All of your Service activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Service. Using profanity, harassing, bullying, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, religion, national origin, gender, sexual orientation, or physical handicap. Your User Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
Do Not Use for Commercial or Political Purposes. Your User Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law.
Do Not Use for Inappropriate Purposes. Your User Content must not promote any infringing, illegal, or other similarly inappropriate activity.
Be Honest and Do Not Misrepresent Yourself or Your User Content. Do not impersonate any other person, user, or company, and do not submit User Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
Others Can See. We hope that you will use the Communities to exchange information and content. However, please remember that the Communities are public or semi-public and User Content that you submit on the Service within a Community may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together, password, social security number, financial information, phone number, address, credit card number, medical information, email address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
Don’t Share Other Peoples’ Personal Information. Your User Content must not reveal another person’s address, phone number, e-mail address, social security number, payment card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by A+M.
Don’t Damage the Service or Anyone’s Computers or Other Devices. Your User Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Service or any computer or other Device.
If you submit User Content that A+M reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User Content in question being removed from the Service.
(ii) Your Interactions with Other Users; Disputes. You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
C. Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to us at email@example.com. For alleged infringements of intellectual property rights, see Sections 6 and 7, below.
Notice of Copyright Infringement under the “Digital Millennium Copyright Act” (DMCA)
A. DMCA Notice. A+M will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
(iv) your full name, address, telephone number and email address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
A+M will only respond to DMCA Notices that it receives by mail or email at the addresses below:
Attn: DMCA Notice
8000 Avalon Boulevard
Alpharetta, GA 30009
By Email: firstname.lastname@example.org
It is often difficult to determine if your copyright has been infringed. A+M may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and A+M may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting A+M’s other rights, A+M may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by A+M.
B. Counter-Notification. If access on the Service to a work that you submitted to A+M is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL or page of the Service from which the material was removed or access to it disabled);
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Northern District of Georgia), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
Procedure for Alleging Infringement of Other Intellectual Property
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes all of the following:
(a) a legend or subject line that says: “Intellectual Property Infringement Notice”;
(b) a description of the intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
(d) your full name, address, telephone number and email address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and
(g) your electronic or physical signature.
We will act on such notices in our sole discretion. We may send the information that you provide in your notice to the person who provided the allegedly infringing material. Any user of the Service that fails to respond satisfactorily to A+M with regard to any such notice of infringement related to User Content, is subject to suspension or termination.
Notices and Questions
You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by posting the updated Terms on the Service or in another reasonable manner that we may elect; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address by updating your account information.
If you have a question regarding using the Service, you may contact us. You acknowledge that the provision of customer support is at A+M’s sole discretion and that we have no obligation to provide you with customer support of any kind.
Linked-To Websites; Advertisements; Dealings with Third Parties
A. Linked Services; Advertisements. The Service may contain links to third parties that operate independently of us (“Linked Services”). A+M may have no control over the content, operations, policies, terms, or other elements of Linked Services, and A+M does not assume any obligation to review any Linked Services. A+M does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, A+M is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Services. Finally, A+M will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services. A+M disclaims all liability in connection therewith.
B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). A+M disclaims all liability in connection therewith.
A. Mobile Website. We make our Service available in a mobile-friendly format as well (our “Mobile Site”). All mobile phones that have Internet access can make use of the Mobile Site. You should be aware that some of the special pricing and promotions offered on the full html website may not be available on the Mobile Site and that some of the special pricing and promotions offered on the Mobile Site may not be available on the full html website.
B. Wireless Features. The Service may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
C. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.
D. Telephone/Messaging Terms and Conditions. A+M offers mobile messaging and telephone communication programs that facilitate communications such as short messaging service, multimedia messaging service, artificial voice messages, prerecorded voice messages, and/or autodialed communications (collectively, “Program”) through which it sends periodic autodialed communications with Avery+Madisson news and offers. Such communications will be made in accordance with our Telephone/Messaging Terms & Conditions. The Telephone/Messaging Terms & Conditions apply to your participation in any Program(s), as well as telephonic communications generally, and they are considered Additional Terms and expressly incorporated into these Terms by this reference. Each Program offered by A+M is considered part of the Service for purposes of these Terms.
PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Service (including gift cards offered via the Service), the Content, your User Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of A+M’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 11(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 11(A). Your notice to us must be sent via email to: email@example.com. For a period of sixty (60) days from the date of receipt of notice from the other party, A+M and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or A+M to resolve the Dispute or Excluded Dispute on terms with respect to which you and A+M, in each of our sole discretion, are not comfortable. If you reside in the U.S. (and as applicable to U.S. residents), certain portions of this Section 11 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and A+M agree that we intend that this Section 11 satisfies the “writing” requirement of the Federal Arbitration Act. (“FAA”).
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 11(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND A+M (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICE. For U.S. residents, the FAA, not state law, shall govern the arbitrability of all disputes between A+M and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. A+M and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 11(H) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and A+M regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.
Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS") using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of A+M consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in Forsyth County, Georgia. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require A+M to pay a greater portion or all of such fees and costs in order for this Section 11 to be enforceable, then A+M will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the Service. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.
C. Limited Time to File Claims.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 11(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 11(A); (b) filing for arbitration as set forth in Section 11(B); or (c) filing an action in state, Federal or provincial court.
D. Injunctive Relief. The foregoing provisions of this Section 11 will not apply to any legal action taken by A+M to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User Content and/or A+M’s intellectual property rights (including any that A+M may claim are in dispute), A+M’s operations, and/or A+M’s products or services.
E. No Class Action Matters. YOU AND A+M AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 11(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 11(F). Notwithstanding any other provision of this Section 11, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
F. Jurisdictional Issues. Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in Forsyth County, Georgia. Accordingly, you and A+M consent to the exclusive personal jurisdiction and venue of such courts for such matters.
G. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
H. Governing Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of Georgia, without regard to its conflicts of law provisions.
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, A+M, and any parent company or affiliated subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agencies, agents, vendors, licensors, licensees, contractors, successors, and assigns (collectively, the “A+M Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Service (including the Content and the User Content);
(b) the functions, features, or any other elements on, or made accessible through, the Service;
(c) any products, services or instructions offered or referenced at or linked through the Service;
(d) security associated with the transmission of your User Content transmitted to A+M via the Service;
(e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, reliable or safe;
(g) whether any defects to, or errors on, the Service will be repaired or corrected;
(h) whether your access to the Service will be uninterrupted, timely, secure or error-free;
(i) whether the Service will be available at any particular time or location; and
(j) whether your use of the Service is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A A+M PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE A+M PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
LIMITATIONS OF OUR LIABILITY
TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY A+M PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:
(a) the Service (including the Content and the User Content;
(b) your use of or inability to use the Service, or the performance of the Service;
(c) any action taken in connection with an investigation by A+M Parties or law enforcement authorities regarding your access to or use of the Service;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any injury you sustain directly or indirectly as a result of your use of the Service or any products or services purchased through the Service;
(f) any errors or omissions in the Service’s technical operation; or
(g) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if A+M Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Service).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL A+M PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID A+M TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.
Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY A+M (INCLUDING YOUR LICENSED USER CONTENT) OR A LICENSOR OF A+M.
Updates to Terms
A. A+M’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grant A+M a right of consent or approval or permits A+M to exercise a right in its “sole discretion,” A+M may exercise that right in its sole and absolute discretion. No opt-in consent or approval may be deemed to have been granted by A+M without being in writing and signed by an officer of A+M.
B. Indemnity. You agree to defend, indemnify, and hold the A+M Parties harmless from and against any and all claims, suits, demands, actions, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to: (i) your User Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) A+M Parties’ use of the information that you submit to us (including your User Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by A+M Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, A+M Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. A+M Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a A+M Party.
C. Operation of Service; Availability of Products and Services; International Issues. The Service is operated in the United States, and is primarily intended for users located in the U.S. A+M makes no representation that the Service is appropriate or available for use beyond the U.S. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
D. Severability; Interpretation . If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
E. Communications. As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
F. Investigations; Cooperation with Law Enforcement; Termination; Survival. A+M reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by A+M in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to A+M under these Terms or any Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from A+M, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any Additional Terms (including the terms applicable to User Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to A+M in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
G. Assignment. A+M may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of A+M.
H. No Waiver. Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or A+M in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. For avoidance of doubt, nothing herein shall be construed to restrict A+M’s right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.
I. California Consumer Rights. Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.
J. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.
Terms Applicable for Apple Device Users
If you are accessing or using the Service through a Device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”):
(i) To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and A+M and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below.
(ii) The license granted to you in Section 1 of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.
(iii) You acknowledge that A+M, and not Apple, is responsible for providing the Service and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
(v) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and A+M, A+M and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, 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 against you as a third-party beneficiary thereof.
(ix) When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
(x) 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.