Terms of use

 

Last Updated: August 30th, 2019

The following terms of use (the “Terms of Use”) govern your access to and use of: (a) our website located at www.avagrows.com (the “AVA Website”); (b) any mobile device software provided by us to you, including our mobile application titled AVA Byte (the “AVA Mobile Applications”); (c) any text, pictures, media, data, text, information and other materials or content (collectively, the “Content”) contained on or provided through the foregoing (a) or (b); and (d) all other Content, products or services provided by us to you, as more particularly described on the AVA Website (collectively, the “AVA Solution”). These Terms of Use form an agreement between AVA Technologies (“AVA”, “us”, “we”, “our”) and you. The term “you” refers to the person or entity browsing, installing, downloading, accessing or otherwise using the AVA Solution (“use” or “using” in these Terms of Use will mean any of the foregoing).

BY USING THE AVA SOLUTION, YOU: (A) REPRESENT AND WARRANT THAT: (I) YOU HAVE REACHED THE AGE OF MAJORITY IN YOUR JURISDICTION, (II) YOU HAVE THE CAPACITY TO ENTER INTO BINDING OBLIGATIONS, AND (III) ALL INFORMATION SUPPLIED BY YOU TO US THROUGH THE AVA SOLUTION IS TRUE, ACCURATE, CURRENT, AND COMPLETE; AND (B) AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE, AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 2. IF YOU ARE USING THE AVA SOLUTION ON BEHALF OF ANOTHER PERSON OR A CORPORATE ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THESE TERMS OF USE.

1. AVA Solution Requirements

In order to use the AVA Solution (except for the AVA Website), you are required to have:

(a) a hardware device certified for use with the AVA Solution by AVA

(the “AVA Byte Device”); and

(b) an active Wi-Fi connection for the AVA Byte Device.

2. Changes to these Terms of Use and AVA Solution

(a) Except where prohibited by applicable law, we reserve the right to change these Terms of Use at any time by posting a new version to the AVA Website. It is your obligation to monitor the AVA Website for any such changes. Your continued access to or use of the AVA Solution after any changes to these Terms of Use indicates your acceptance of such changes. It is your responsibility to review these Terms of Use regularly.

(b) We reserve the right to change the AVA Solution at any time, without notice.

3. License to the AVA Mobile Applications

Subject to these Terms of Use, we grant you worldwide, non-exclusive, non-transferable, non-sublicensable and revocable license during the Term to use the AVA Mobile Applications on your mobile device in accordance with these Terms of Use.

4. Data You Upload To Us

You grant to us an irrevocable, worldwide, non-exclusive, royalty-free, transferable and sublicensable license during the Term to access, collect, store and use any data, information, records and files that: (a) you load, transmit to or enter into the AVA Solution; or (b) we collect from your AVA Byte Device ((a) and (b), collectively, the “User Data”), to: (i) develop, enhance and make available the AVA Solution; and (ii) to produce data, information, or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Statistical Information”). We are free to create, use and disclose Aggregated Statistical Information for any purpose and without obligations of any kind.

5. Privacy

(a) Please review our current Privacy Policy, available at [http://www.avagrows.com/privacy-policy.html] , which contains important information about our practices in collecting, storing, using and disclosing information about identifiable individuals (“Personal Information”), and which is hereby incorporated into and forms a part of these Terms of Use.

(b) You represent and warrant to us that the User Data will only contain Personal Information in respect of which you have provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise have all authority, in each case as required by applicable laws, to enable us to: (i) make available the AVA Solution; and (ii) create, use and disclose Aggregated Statistical Information for any purpose and without obligations of any kind.

6. Software Updates

The AVA Mobile Applications may automatically download and install updates from time to time from us. These updates are designed to improve, enhance and further develop the AVA Solution and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit us to deliver these to you) as part of your use of the AVA Solution.

7. Ownership

All rights, title and interest, including intellectual property rights, in the AVA Solution, Aggregated Statistical Information and all other materials provided by us hereunder, and any update, adaptation, translation, customization or derivative work thereof, will remain with us (or our third party suppliers, if applicable). The AVA Solution and all materials provided by us hereunder are made available or licensed and not “sold” to you. All rights not expressly granted to you in these Terms of Use are reserved.

8. User Account for AVA Solution

To access certain features of the AVA Solution, you may be required to successfully sign up for a user account using the available interfaces of the AVA Solution and be issued with a username and password login credentials (the “User ID”). If you are issued with a User ID, you will keep your User ID secure and will not share your User ID with anyone else. We reserve the right to disable any User ID issued to you at any time in our sole discretion. If we disable access to a User ID issued to you, you may be prevented from accessing the AVA Solution.

9. Internet Access

Certain features of the AVA Solution may require your mobile device to have access to the internet and may be subject to restrictions or additional charges imposed by your network or internet provider. In addition, your use of some features of the AVA Solution may be affected by the suitability and performance of your device hardware or data access.

10.No Unlawful or Prohibited Use

You will not use the AVA Solution in violation of these Terms of Use or of any applicable law. You will not, without our prior written permission, use the AVA Solution for any purpose other than to discover and learn about products and services offered by us and to obtain information about, monitor and automate your AVA Byte Device. Without limiting the generality of the foregoing, you will not (and will not attempt to) directly or indirectly:

(a) send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the AVA Solution any data, information, pictures, videos, music or other materials or content that: (i) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ii) you do not have the lawful right to send, upload, collect, transmit, store, use, publish, or otherwise communicate; (iii) is false, intentionally misleading, or impersonates any other person; (iv) is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual; (v) is harmful to minors in any way or targeted at minors; (vi) infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or (vii) encourages any conduct that may violate any applicable laws or would give rise to civil or criminal liability;

(b) disable, overly burden, impair, or otherwise interfere with servers or networks connected to the AVA Solution (e.g., a denial of service attack);

(c) attempt to gain unauthorized access to the AVA Solution;

(d) use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble, disassemble, or decompile the AVA Solution or any part thereof or otherwise attempt to discover any source code; or

(e) use the AVA Solution for the purpose of building a similar or competitive product or service.

11. Third Party Content, Websites or Services

The AVA Solution may provide links or access to third party Content, websites, or services. Likewise, we may allow you to access the AVA Solution from third party systems. AVA does not endorse any third party Content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third party Content, websites, services, or systems are not under AVA's control, and if you choose to access any such Content, websites, or services, or to access the AVA Solution from such systems, you do so entirely at your own risk. You acknowledge that you may be required by to accept terms of use applicable to third party Content, websites, services, or systems and agree to accept and comply with any such terms of use.

12. Malicious Code

The downloading and viewing of Content is done at your own risk. We do not guarantee or warrant that the AVA Solution is compatible with your computer system or that the AVA Solution, or any links from the AVA Solution, will be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system that may be necessary as a result of your use of the AVA Solution.

13. Communications Not Confidential

We do not guarantee the confidentiality of any communications made by you through the AVA Solution. We do not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the AVA Solution.

14. Disclaimer

YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE AVA SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE AVA SOLUTION WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, RELIABILITY, CURRENCY, TIMELINESS, QUALITY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE AVA SOLUTION IS OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.

15. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES; OR LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES, IN EACH CASE, WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE AVA SOLUTION OR THESE TERMS OF USE.

FOR ANY OTHER DAMAGES, OR TO THE EXTENT THAT THE FOREGOING LIMITATION IS NOT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THESE TERMS OF USE, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE AVA SOLUTION EXCEED $100CAD. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF USE WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.

16. Indemnification

You will defend, indemnify and hold harmless us and all of our officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including reasonable legal and accounting fees, arising out of or in connection with:

(a) your breach of any provision of these Terms of Use or any documents referenced herein;

(b) your violation of any law or the rights of a third party (including intellectual property rights); or

(c) your use (or the use by any third party using your User ID) of the AVA Solution.

17. Term and Termination; Survival

(a) These Terms of Use will commence on the day you first use the AVA Solution and will continue into force until terminated by either party (the “Term”). Either party may terminate these Terms of Use as follows: (a) we may terminate these Terms of Use at any time and with immediate effect by giving notice to you, at our discretion, by email (at your current email address on file with us) or through the AVA Solution; (b) you may terminate these Terms of Use at any time and with immediate effect by requesting (by email or through any then-available interfaces on the AVA Solution) that your User ID be deleted, ceasing use of the AVA Solution and uninstalling and deleting the AVA Mobile Application. For greater certainty, if you continue to use any portion of the AVA Website that is publicly available after these Terms of Use have been terminated, these Terms of Use will continue to apply to the extent of such use.

(b) The following Sections, together with any other provision of these Terms of Use which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms of Use, will survive expiration or termination of these Terms of Use for any reason: Sections 5(b) (Personal Information Warranty), 7 (Ownership), 11 (Third Party Content, Websites or Services), 12 (Malicious Code), 13 (Communications Not Confidential), 14 (Disclaimer), 15 (Limitation of Liability), 16 (Indemnification), 17(b (Survival), and 18 (General Provisions).

18. General Provisions

(a) Choice of Law. Except as restricted by applicable law, these Terms of Use will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein and such laws apply to your access to or use of the AVA Solution, notwithstanding your domicile, residency or physical location. You will only use the AVA Solution in jurisdictions where the AVA Solution may lawfully be used. Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Vancouver, British Columbia, Canada in all disputes arising out of or relating to the use of the AVA Solution.

(b) Entire Agreement. These Terms of Use constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the AVA Solution. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

(c) Waiver. Our failure to insist upon or enforce strict performance of any provision of these Terms of Use will not be construed as a waiver of any provision or right. A waiver of any provision of these Terms of Use must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

(d) Severable. If any of the provisions contained in these Terms of Use are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from these Terms of Use and all other provisions of these Terms of Use will remain in full force and effect.

(e) Assignment. You will not assign these Terms of Use to any third party without our prior written consent. We may assign these Terms of Use or any rights under these Terms of Use to any third party without your consent. Any assignment in violation of this Section will be void. The terms of these Terms of Use will be binding upon permitted assignees. These Terms of Use will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.

(f) English Language. It is the express wish of the parties that these Terms of Use and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

19. Apple App Store Additional License Terms

If the AVA Mobile Application is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms of Use:

(a) The parties acknowledge these Terms of Use are concluded between the parties, and not with Apple. The responsibility for the AVA Mobile Application and content thereof is governed by these Terms of Use.

(b) Notwithstanding anything to the contrary hereunder, you may use the AVA Mobile Application only on an iPhone or iPod touch that you own or control.

(c) You and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the AVA Mobile Application.

(d) In the event of any failure of the AVA Mobile Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the AVA Mobile Application (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the AVA Mobile Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by these Terms of Use.

(e) Any claim in connection with the AVA Mobile Application related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by these Terms of Use, and Apple is not responsible for such claim.

(f) Any third party claim that the AVA Mobile Application or your possession and use of the AVA Mobile Application infringes that third party’s intellectual property rights will be governed by these Terms of Use, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.

(g) You represent and warrant that you are not: (i) located in any 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; or (ii) listed on any U.S. Government list of prohibited or restricted parties.

(h) You may contact us in writing regarding any notices, questions, complaints or claims with respect to the AVA Mobile Application.

Name: Alex Kwon
Address: 45 E Cordova St, Vancouver, BC V6A 1K3
Telephone Number: +1 604 620 7515
Email Address: hello@avagrows.com

(i) Apple is a third party beneficiary to these Terms of Use and may enforce these Terms of Use against you.

(j) If any of the terms and conditions in these Terms of Use are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement (the current version as of the date these Terms of Use was last updated is located at: http://www.apple.com/legal/internet-services/itunes/appstore/dev/minterms/) or the App Store Terms of Service (the current version as of the date these Terms of Use was last updated is located at: http://www.apple.com/legal/internet-services/itunes/ca/terms.html), the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.

20. Google Play

If the AVA Mobile Application is provided to you through the Google Inc (Google Inc. together with all of its affiliates, “Google”) Google Play, the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms of Use:

(a) You acknowledge that Google is not responsible for providing support services for the AVA Mobile Application.

(b) If any of the terms and conditions in these Terms of Use are inconsistent or in conflict with the Google Play Developer Distribution Agreement (the current version as of the date these Terms of Use was last updated is located at https://play.google.com/about/developer-distribution-agreement.html), the terms and conditions of Google’s Google Play Developer Distribution Agreement will apply to the extent of such inconsistency or conflict.