PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Drip allows Users to provide personalized marketing to current and prospective customers (collectively, “Customers”) through a marketing automation platform that monitors and manages your marketing efforts.
- Drip Service
This is a contract between you and Avenue 81. You must read and agree to these terms before using Drip. If you do not agree to the terms and conditions of this Agreement, you do not have our permission to use Drip. You may use Drip only if you can form a binding contract with Avenue 81, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to Drip by anyone under eighteen (18) years of age is strictly prohibited and in violation of this Agreement. Drip is not available to any Users previously removed from Drip by Avenue 81.
- Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use Drip as permitted by the features of Drip. Avenue 81 reserves all rights not expressly granted herein in Drip and the Avenue 81 Content (as defined below). Avenue 81 may terminate this license at any time for any reason or no reason.
- Drip Accounts
Your account on Drip (your “Drip Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of Drip Accounts for different types of Users. If you open a Drip Account on behalf of a company, organization, or other entity, then: (i) “you” includes you and that entity; and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Avenue 81 with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s Drip Account without permission. When creating your Drip Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your Drip Account, and you must keep your Drip Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Drip Account. You must notify Avenue 81 immediately of any breach of security or unauthorized use of your Drip Account. Avenue 81 will not be liable for any losses caused by any unauthorized use of your Drip Account.
You may control your User profile and how you interact with Drip by changing the settings in your Settings page. By providing Avenue 81 your email address you consent to our using the email address to send you Drip-related notices, including any notices required by law, in lieu of communication by postal mail. With your consent, we may also use your email address to send you other messages, such as changes to features of Drip and special offers. If you do not want to receive such email messages, you may opt out by clicking on the unsubscribe link on the bottom of our emails. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
- Administrator Accounts
The person who first completes the Drip registration on behalf of any company, entity or organization (“Subscribing Organization”) is the initial "Administrator" for purposes of such Subscribing Organization’s use of Drip, and exercises certain options to initially determine the level of access, privacy, and security for Drip related to the Subscribing Organization ("Administrator Account"). For example, the Administrator will determine who can be a User of Drip under the Subscribing Organization associated with that Administrator and the level of privileges that such Users will possess. Once initial registration has been completed, each Subscribing Organization will be able to register additional Administrators). Each Administrator may designate other Users as additional and/or successor Administrators; provided that, each Administrator is responsible for confirming that those person(s) accept such responsibility. Upon becoming an Administrator, each person will be deemed to agree to the obligations hereunder. In addition, any person designated as the billing contact in the billing record for a Subscribing Organization will be deemed to assume the rights and obligations of an Administrator. Administrator Accounts must comply in all respects with all terms and conditions applicable to Drip Accounts.
- System Access
You may choose to allow Avenue 81 to automatically retrieve data from your system(s) or third-party systems or services on your behalf. You hereby represent and warrant that you have the permission, authority, and rights to allow Avenue 81 to so automatically access such system(s) and services and you hereby grant Avenue 81 permission to access such system(s) and services and retrieve Customer Data (as defined below) therefrom by indicating the same within your Drip Account. Avenue 81 disclaims any and all liability associated with accessing and retrieving Customer Data from such system(s) and services on your or your Subscribing Organization’s behalf. In order to connect Drip with any third-party service, you hereby designate Avenue 81 as your agent and attorney-in-fact in connection with such service and further authorize is to: (a) store your Customer Data relating to such service; (b) access such service using Customer Data you provide us; (c) use any materials you provide us in order to provide you Drip; (d) gather and export from such service any Customer Data reasonably necessary for us to provide Drip to you; and (e) otherwise take any action in connection with such service as is reasonably necessary for us to provide Drip to you. You agree that those third-party service providers are entitled to rely on the foregoing authorization, agency, and power of attorney granted by you. If at any time you do not have the right and authority to allow Avenue 81 automatic access to such system(s), then you hereby agree to immediately disable such functionality within your Drip or Administrator Account.
- Drip Rules
- Prohibited On Drip
It’s simple; don’t use Drip to do anything illegal, harmful or spammy. By spammy we mean the definition outlined at Spamhaus.
Additionally you agree not to: (a) use Drip in any manner to send emails with the following content: offer or suggest any illegal goods, pornography, sexually explicit material, advice, drugs, novelty items, or pharmaceutical information or products, credit repair services or opportunities, prostitution or illegal escorts, free product/free sample giveaways, claim your money/benefit/assistance or similar, excessive third-party promotions, and “get rich quick” or similar content; (b) use Drip in any manner to repeatedly import, send, and delete Customers from an account; (c) use Drip in any manner to contact your Customers at such a rate that your bounce, abuse, or unsubscribe rates move above Drip's acceptable use limits; or (d) use Drip to email Customers who have not explicitly opted in to hear from you (including, without limitation, purchased Customers, purchased lists, or Customers attained through co-registration (where a Customer is added to your list from filling out a form on a different website)).
- Categories that may require additional scrutiny
In order to maintain strong deliverability for our customers the following categories are allowed but subject to additional monitoring. Traditionally these have had higher spam and unsubscribe rates so we do it to maintain strong deliverability for our customers.
- Online trading, day trading, or stock market related content
- Mortgages and loans
- Gambling and/or betting
- Nutritional, herbal, and vitamin supplements
- Multi-level marketing
- Dating or relationships
- Real estate
- Affiliate marketing
- Horoscope reports
By using Drip, you represent and warrant that you meet all the requirements listed above, and that you won’t use the service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise. Drip may refuse service, close accounts of any users, and change eligibility requirements at any time.
- Compliance with Applicable Laws
As part of Drip, we may send marketing and advertising communications on your behalf to Customers. In connection with such communications and your use of Drip, you hereby represent and warrant that: (i) you have all necessary consents, licenses, rights and authorizations for us to send such communications on your behalf; (ii) you will not, either directly or indirectly, direct us to send communications to any person under the age of thirteen (13) years of age (including, without limitation, by including any individual under the age of thirteen (13) in any list of Customers you may provide to us; and (iii) your use of Drip (including, without limitation, your provision of User Content, your creation of communications for Customers, collection of Customer lists and contact information, and your instructions for us to send such communications to Customers on your behalf) will be in compliance with any and all applicable laws, rules and regulations, including (without limitation) any data privacy and advertising laws, in each jurisdiction in which you will be sending marketing communications to a resident of the jurisdiction. You agree that, as between the parties, you are the sender of any email message or other communication transmitted through the Service on your behalf. Avenue 81 is not responsible for reviewing the contents of any communication transmitted through the Services or transmitted by you related to your use of the Service, nor is it responsible for obtaining any necessary consents or permissions from the message recipients.
- Changes to Drip
We may, without prior notice: (i) change Drip; (ii) stop providing Drip or features of Drip, to you or to Users generally; or (iii) create usage limits for Drip. We may permanently or temporarily terminate or suspend your access to Drip without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
- Prohibited On Drip
- User Content
Some areas of Drip allow Users to submit, provide, or otherwise make available content such as marketing materials, videos, images, music, text, comments, questions, and other content or information (any such materials a User submits, provides, or otherwise makes available on Drip is referred to as “User Content”).
We claim no ownership rights over User Content created by you. The User Content you create remains yours.
For the purposes of this Agreement, “Intellectual Property Rights” means any and all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
- You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by Drip and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
- You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
- Your User Content and Avenue 81’s use thereof as contemplated by this Agreement and Drip will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- Avenue 81 may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Avenue 81 takes no responsibility and assumes no liability for any User Content that you or any other User submits, provides or otherwise makes available over Drip. You shall be solely responsible for your User Content and the consequences of submitting it, providing it, or otherwise making it available on Drip, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.
- Customer Data
- Customer Data
As part of Drip, we may allow you to submit, store and access and we may collect certain Personal Data (as defined below), business data and other information related to your current and potential Customers, including (without limitation) subscriber lists and personalized email content (collectively, “Customer Data”).
- Use of Customer Data
By submitting Customer Data to Avenue 81, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the Customer Data required for Avenue 81 and its subcontractors and service providers to provide Drip. Avenue 81 shall have no right to sublicense or resell Customer Data, except however, that you agree that Avenue 81 may collect, analyze, and use data derived from Customer Data (including without limitation Personal Data) and/or information collected from or about an individual but which does not identify the individual personally for purposes of operating, analyzing, improving, or marketing Drip and any related services. If Avenue 81 shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from Customer Data, such data will be aggregated or anonymized such that a specific individual is no longer identifiable. You further agree that Avenue 81 will have the right, both during and after the term of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data. You may request that Avenue 81 delete Customer Data at any time, but agree that Avenue 81 will have no obligation to delete information or data which is de-identified and does not reasonably identify any individual or you.
- Your Responsibilities for Customer Data
- Security Incidents
In the event that Customer Data is disclosed to or accessed by an unauthorized party, Avenue 81 will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Customer Data, we will promptly notify you and will use reasonable efforts to cooperate with your investigation of the incident. If such incident triggers any third-party notice requirements, you (not Avenue 81) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. You (not Avenue 81) bears sole responsibility for adequate security, protection and backup of Customer Data when in your or your representatives’ or agents’ possession or control. We are not responsible, and you are fully responsible, for what your authorized Users do with Customer Data.
- No Responsibility for Backups
Avenue 81 will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss. You are solely responsible for backing up your Customer Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your Customer Data.
- Rights to Customer Data
You own all right, title and interest (including all Intellectual Property Rights) in and to Customer Data.
- Customer Data
- Our Proprietary Rights
Except for your User Content, Drip and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Avenue 81 Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Avenue 81 and its licensors (including other Users who post User Content to Drip). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Avenue 81 Content. Use of the Avenue 81 Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about Drip, including without limitation about how to improve Drip or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Avenue 81 under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Avenue 81 does not waive any rights to use similar or related ideas previously known to Avenue 81, or developed by its employees, or obtained from sources other than you.
- Subscription; Fees and Payment
We will charge you fees (Fees) for your use of Drip. You agree to pay any and all Fees specified in an ordering document or online order for your access and use of Drip (“Ordering Document”). Your Fees are based on the number of Customers you identify for our marketing services and the number of emails you send to Customers. For the most current information about our pricing and payment, please review our Pricing and Payment Terms, which are incorporated by reference herein. Avenue 81 may add new services for additional fees and charges, and add or amend fees and charges for existing services, at any time in its sole discretion. If we add or amend our Fees, we will update our Pricing and Payment Terms. Any change to our Pricing and Payment Terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement; provided however that if we have offered a specific duration and Fees for your use of Drip, we agree that the Fees will remain in force for that duration.
- Continuous Subscription Services; Automatic Billing and Policies
Unless otherwise provided in an Ordering Document any purchases for access and use of Drip are on an automatically renewing subscription basis. YOUR DRIP SUBSCRIPTION WILL COMMENCE UPON THE EFFECTIVE DATE OF THE ORDERING DOCUMENT AND WILL AUTOMATICALLY RENEW AT THE END OF YOUR SUBSCRIPTION TERM IDENTIFIED IN YOUR ORDERING DOCUMENT FOR SUBSEQUENT TERMS EQUAL IN LENGTH TO THE INITIAL SUBSCRIPTION TERM (EACH A “SUBSCRIPTION TERM”) UNLESS AND UNTIL YOU CANCEL YOUR DRIP SUBSCRIPTION IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 6.4 OF THIS AGREEMENT. When you purchase Drip, you expressly acknowledge and agree that: (1) Avenue 81 is authorized to charge you at the beginning of each Subscription Term the Fees identified in an Ordering Document, any applicable taxes, and any other charges you may incur in connection with your use of Drip, subject to automatic adjustment as described in Section 6.3 of this Agreement, for as long as your subscription continues; and (2) your subscription is continuous until you cancel it or Drip is suspended, discontinued or terminated in accordance with this Agreement. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in your subscription plan, changes in applicable taxes, and changes in Fees in accordance with Sections 6.1 and 6.3 and you authorize us to charge your payment method for the changed amounts.
- Automatic Upward and Downward Adjustments
Fees are assessed according to a tier system based on the number of Customers or the amount of emails to be sent to Customers. For the initial Subscription Term, you agree to pay the Fees for the tier you identify in an Ordering Document. For subsequent Subscription Terms, in the event that the actual number of Customers or emails sent to Customers in a Subscription Term exceeds the number of Customers or emails sent to Customers in the previous Subscription Term, your Fees will automatically be increased to the corresponding higher tier and you will be charged the increased Fees for the subsequent Subscription Term. For subsequent Subscription Terms, in the event that the actual number of Customers or emails sent to Customers decreases in the subsequent Subscription Term, then we may automatically reduce your Fees to the corresponding lower tier for the subsequent Subscription Term.
- Cancellation; Refunds
To cancel your Drip Account or the Drip services, you must notify us at least three (3) days before the start of the next Subscription Term using the appropriate functionalities of Drip. You may cancel your Drip Account or the Drip services at your sole discretion; however, Drip grants refunds for cancellation at its sole discretion and you acknowledge and agree that you may not be refunded any Fees for your cancellation of your Drip Account and the Drip services. Notwithstanding the foregoing, if you cancel your Drip Account or the Drip services within thirty (30) days following the beginning of your initial Subscription Term, we may provide you a refund of the Fees you paid under your Ordering Document. In the event that Avenue 81 suspends or terminates your Drip Account or this Agreement for your breach of this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of Drip, any content or data associated with your Drip Account, or for anything else.
- Payment Information; Taxes
We or our third-party payment processors will charge your Fees and any other charges you may incur to the payment method you provide when you register for a Drip Account or you identify in an Ordering Document. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with Drip must be accurate, complete, and current. You may change your payment method by changing the information in your Drip Account. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with Drip at the prices in effect when such charges are incurred. If we are unsuccessful in charging your payment method and have still not received payment within seven (7) days after informing you, we may (without liability to you) suspend or temporarily disable all or part of your access to Drip and we shall be under no obligation to provide any or all of Drip while the Fees concerned remain unpaid. This does not affect any other rights and remedies available to us. You will pay any and all applicable taxes, if any, relating to any such payments of Fees, purchases, transactions or other monetary transactions.
Avenue 81 uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- DMCA Notice
Since we respect artist and content owner rights, it is Avenue 81’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via Drip, please notify Avenue 81’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on Drip;
- Information reasonably sufficient to permit Avenue 81 to contact you, such as your address, telephone number, and, e-mail address;
- A statement 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 law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice Company: Avenue 81, Inc. d/b/a Avenue 81 Address: 251 N. 1st Avenue, Suite 200, Minneapolis, MN 55401 Telephone: 844.594.3390 Email: firstname.lastname@example.org
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying Avenue 81 and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Avenue 81’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Avenue 81 has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Avenue 81 may also at its sole discretion limit access to Drip and/or terminate the Drip Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- Third-Party Links and Information
You agree to defend, indemnify and hold harmless Avenue 81 and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to Drip, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content or any content that is submitted via your Drip Account including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of Drip with your unique username, password or other appropriate security code.
- No Warranty
Drip is provided on an “as is” and “as available” basis. Use of Drip is at your own risk. To the maximum extent permitted by applicable law, Drip is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Avenue 81 or through Drip will create any warranty not expressly stated herein. Without limiting the foregoing, Avenue 81, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that Drip will meet your requirements; that Drip will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that Drip is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of Drip is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of Drip.
Further, Avenue 81 does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through Drip or any hyperlinked website or service, and Avenue 81 will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
- Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Avenue 81, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, Drip. Under no circumstances will Avenue 81 be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of Drip or your account or the information contained therein.
To the maximum extent permitted by applicable law, Avenue 81 assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from Drip; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through Drip; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Avenue 81, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to Avenue 81 hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Avenue 81 has been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
- Governing Law, Arbitration, and Class Action/Jury Trial Waiver
- Governing Law
You agree that: (i) Drip shall be deemed solely based in Minnesota; and (ii) Drip shall be deemed a passive service that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Minnesota. This Agreement shall be governed by the internal substantive laws of the State of Minnesota, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Minneapolis, Minnesota for any actions for which we retain 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 our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Minneapolis, Minnesota is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Avenue 81. For any dispute with Avenue 81, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Avenue 81 has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Minneapolis, Minnesota, unless you and Avenue 81 agree otherwise. If you are using Drip for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using Drip for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Avenue 81 from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
- Class Action/Jury Trial Waiver
With respect to all persons and entities, regardless of whether they have obtained or used Drip for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into this Agreement, you and Avenue 81 are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
- Limitation on Claims
You and Avenue 81 agree that any cause of action arising out of or related to Drip and/or your use thereof must commence must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
- Governing Law
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Avenue 81 without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- Notification Procedures and Changes to the Agreement
Avenue 81 may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Avenue 81 in our sole discretion. Avenue 81 reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Avenue 81 is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Avenue 81 may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of Drip after any such change constitutes your acceptance of the new Terms and Conditions. If you do not agree to any of these terms or any future Terms and Conditions, do not use or access (or continue to access) Drip.
- No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Avenue 81’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.
- Disclosures; California Residents
The provider of services is Avenue 81, Inc. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
- Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with Avenue 81 in connection with Drip, shall constitute the entire agreement between you and Avenue 81 concerning Drip. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.