Website Terms and Conditions of Use
Our mission is to help people share their talents with each other. In legal terms, Heart of Avalon, Inc. provides a neutral platform through which you can give and receive skills and services, but you need to understand the following:
All transactions are between the parties using Heart of Avalon, Inc.
All disputes regarding transactions are between the parties to the transaction; Heart of Avalon, Inc. is not involved in any way.
Caveat recipiēns (Recipient beware). Services provided through Heart of Avalon, Inc. are not guaranteed or warranted and you should always use caution and common sense when entering into a transaction and inspect each user before you use them.
Treat others as you would like to be treated. We are setting up a system that rewards generosity and giving, so be nice.
In summary, have fun, be kind, use common sense, and use Heart of Avalon, Inc. at your own risk.
DISCLAIMER. MANY JURISDICTIONS HAVE LAWS PROTECTING CONSUMERS AND OTHER CONTRACT PARTIES, LIMITING THEIR ABILITY TO WAIVE CERTAIN RIGHTS AND RESPONSIBILITIES. WE RESPECT SUCH LAWS; NOTHING HEREIN SHALL WAIVE RIGHTS OR RESPONSIBILITIES THAT CANNOT BE WAIVED.
To the extent permitted by law, (1) we make no promise as to Heart of Avalon, Inc., its completeness, accuracy, availability, timeliness, propriety, security or reliability; (2) your access and use are at your own risk, and Heart of Avalon, Inc. is provided "AS IS" and "AS AVAILABLE"; (3) we are not liable for any harm resulting from (a) user content; (b) user conduct, e.g. illegal conduct; (c) your Heart of Avalon, Inc. use; or (d) our representations; (4) WE AND OUR OFFICERS, DIRECTORS, EMPLOYEES ("HEART OF AVALON, INC.ENTITIES"), DISCLAIM ALL WARRANTIES & CONDITIONS, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (5) HEART OF AVALON, INC. ENTITIES ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS (E.G. OF PROFIT, REVENUE, DATA, OR GOODWILL); (6) IN NO EVENT SHALL OUR TOTAL LIABILITY EXCEED $100 OR WHAT YOU PAID US IN THE PAST YEAR.
Heart of Avalon, Inc.:
The simbi.com Web Site (the "Site") is an online information service provided by Heart of Avalon, Inc. ("Heart of Avalon, Inc."), subject to your compliance with the terms and conditions set forth below. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE. BY ACCESSING OR USING THE SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITE. HEART OF AVALON, INC. MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED AGREEMENT ON THE SITE. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT.
1.1 Accounts. In order to use certain features of the Site (e.g., to use the Services), you must create an account ("Account"). To create an Account, you must provide certain information about yourself as prompted by the registration process on the Site or log in using your Facebook or LinkedIn account. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information. You may hide your postings at any time, for any reason, by following the instructions on the Site. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Heart of Avalon, Inc. of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Heart of Avalon, Inc. cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You may not have more than one Account. You agree not to create an Account or use the Site or Services if you have been previously removed by us or banned from any of the Services. Heart of Avalon, Inc. reserves the right in its sole discretion to suspend or terminate your Account and refuse any and all current or future use of the Site or Services (or any portion thereof) at any time for any reason. You agree that Heart of Avalon, Inc. will not be liable to you or to any third party for any suspension or termination of your Account or any refusal of any use of the Site or Services (or any portion thereof). Information on your profile will include information and content you provide and/or upload as well as information we collect from your account with social networking sites (each an "SNS") ("Profile Information"). Heart of Avalon, Inc.reserves the right in its sole discretion to remove Profile Information at any time for any reason. You agree that Heart of Avalon, Inc. will not be liable to you or to any third party for such removal.
1.2 Social Networking Sites. The Services may allow users to connect with various SNSs. By connecting your SNS account, you represent that you are entitled to grant us access to your SNS account without breach by you of any SNS terms and conditions and without obligating us to pay any fees or making us subject to any usage limitations. By granting Heart of Avalon, Inc. access to your SNS account, you understand that we may access, make available, and store any information, content, or other materials that you have provided to or stored in your SNS account ("SNS Content") accessible through the Site and Services so that it is available on your Account. Unless otherwise specified in this Agreement, all SNS Content will be deemed your User Content (as defined below) for all purposes of this Agreement. PLEASE NOTE THAT YOUR RELATIONSHIP WITH EACH SNS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS, AND WE DISCLAIM ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US BY AN SNS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN THE SNS. Heart of Avalon, Inc. makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Heart of Avalon, Inc. is not responsible for any SNS Content.
1.3 The Site uses simbi to facilitate transactions and encourage people to share their services and skills. YOUR SIMBI ARE SPECIFIC TO THE SITE AND ARE USABLE SOLELY IN CONNECTION WITH YOUR USE OF THE SITE AND SERVICES. Users can earn simbi by registering for an Account or making available services on the Site. Then, users can use the simbi credits they earn to receive services made available by other users. Each new member that signs up for Heart of Avalon, Inc. is awarded simbi credits upon registration. After that, simbi may be received from other Heart of Avalon, Inc. users as part of a Transaction when another user uses their simbi to receive a service you make available as a Poster. Finally, from time to time, Heart of Avalon, Inc. may award simbi credits in recognition of good behavior, and may offer certain additional ways to earn simbi. When a Poster posts a service to the Site, you may receive that service by transferring to the Poster the requested number of simbi. If you do not have enough simbi credits to receive an item or service you want, you can offer to trade one of your skills or services in exchange. While the simbi you earn through deals with other Users may not expire, Simbi reserves the right to expire any promotional or initial credits issued to you. All other credits otherwise earned by you are personal to you for so long as you actively use your Account. Upon termination of your Account for any reason, however, your simbi are automatically cancelled. Your simbi are specific to the Site and are usable solely in connection with your use of the Site and Services. They cannot be redeemed or sold for cash, passed down by inheritance, or otherwise assigned. You can only transfer your simbi to a Poster as part of a Transaction. Your simbi may be revoked or cancelled at any time for any reason, including if your Account is terminated or if you breach this Agreement. simbi are promotional credits which are initially issued from Heart of Avalon, Inc. and then are transferred between users in connection with Transactions and not for consideration to Heart of Avalon, Inc. You shall indemnify, defend, and hold harmless Heart of Avalon, Inc. from any claim of any kind arising in connection with your use or receipt of simbi.
Each simbi is a virtual token that represents a contractual permission from Heart of Avalon, Inc. to access features and services of the Site. Credits are purchased or distributed at Heart of Avalon, Inc.’s discretion and are not redeemable for monetary value from Heart of Avalon, Inc.
The Site includes a component of virtual tokens ("simbi"), each of which constitutes a limited license permission to use features of the Site as set forth below.
When you receive simbi, Heart of Avalon, Inc. hereby grants you a limited license ("simbi License") to use the simbi as a virtual token to be held, bartered, traded and/or transferred on the Site with other users (and/or Heart of Avalon, Inc.), in exchange for permission to access and use content, applications, skills, and various user-listed services, in accordance with these Terms of Service. The simbi License is transferable by the holder to any other user, provided that both users comply with these Terms of Service and maintain their accounts in good standing. Except as expressly permitted by this Agreement or otherwise expressly permitted by Heart of Avalon, Inc., the Credit License may not be sublicensed, encumbered, conveyed or made subject to any right of survivorship or other disposition by operation of law or otherwise, and you agree that any attempted disposition in violation of these Terms of Service is null and void. Heart of Avalon, Inc. may revoke the simbi License at any time without notice, refund or compensation in the event that: (i) the simbi program is suspended or terminated; (ii) Heart of Avalon, Inc. determines that the account holder has committed fraud or other illegal conduct; (iii) Heart of Avalon, Inc. imposes an expiration date on usage of simbi in compliance with applicable laws and regulations; (iv) the holder's Account is terminated for violation of these Terms of Service; or (v) the holder ceases to maintain an active account or terminates this Agreement.
You acknowledge that simbi are not real currency or any type of financial instrument and are not redeemable for any sum of money from Heart of Avalon, Inc. at any time. You agree that Heart of Avalon, Inc. has the right to manage, regulate, control, and/or modify the license rights underlying such simbi as it sees fit and that Heart of Avalon, Inc. will have no liability to you based on its exercise of this right. Heart of Avalon, Inc. makes no guarantee as to the nature, quality or value of the features of the Site that will be accessible through the use of simbi, or the availability or supply of simbi.
When you agree to a listing, your bid amount in simbi will be subtracted from your simbi account. When another user wins your listing, you get the winning bid amount in Credits added to your credit account. Credits may also be purchased for a fee from Site.
1.4 Dormant Accounts
An account may be deemed "dormant" when no services have been listed or bids placed within any 1 year period. Dormant accounts may be closed and any accumulated credits forfeited without compensation to the account holder.
1.5 Monetary Payments
Should you choose to input your bank or debit card information to receive monetary compensation to offset any costs you may incur through your services, you are agreeing to the Stripe Connected Account Agreement. The use of Stripe to accept monetary payments on Simbi is strictly limited to the reimbursement of any real costs you may incur while providing your services, not for personal profit. Please note: your credit/debit card information will not be stored on our database.
2.1 License. Subject to the terms of this Agreement, Heart of Avalon, Inc. grants you a non-transferable, non-exclusive license to use aspects of Site and Services for your personal use.
2.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. Heart of Avalon, Inc. makes no representation that the Site or Services are appropriate for use in locations other than the United States.
2.3 Modification. Heart of Avalon, Inc. reserves the right, at any time in its sole discretion, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice for any reason. You agree that Heart of Avalon, Inc. will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof, except and if otherwise expressly set forth in Section 11.
2.4 Support and Maintenance; Updates. You acknowledge and agree that Heart of Avalon, Inc. will have no obligation to provide you with any support or maintenance in connection with the Site or Services. You agree that Heart of Avalon, Inc. is not obligated to create or provide any corrections, updates, upgrades, bug fixes, and/or enhancements of the Site or Services (each an "Update"). However, in the event Heart of Avalon, Inc. decides to offer an Update, you agree that Heart of Avalon, Inc. may amend this Agreement in connection with such Update without specific notice to you and that your use of the Site or Services following such Update is conditioned upon your acceptance of any revised Agreement. By using the Site or Services following an Update, you are representing that you have reviewed the then-current version of the Agreement and agree to be bound by such version. All Updates will be governed by the version of this Agreement published by Heart of Avalon, Inc. as of the date you use the Site or Services following such update.
2.5 Ownership. Excluding your User Content (defined below), you acknowledge and agree that (i) the Site and Services are and will remain the sole property of Heart of Avalon, Inc. and is subject to protection under U.S. and foreign copyright laws and (ii) all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and Services are owned by Heart of Avalon, Inc. or Heart of Avalon, Inc.’s licensors. Heart of Avalon, Inc.’s name, logo, and the product names associated with the Site or Services belong to Heart of Avalon, Inc. (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Heart of Avalon, Inc. and its suppliers reserve all rights not granted in this Agreement.
2.6 Feedback. You agree that submission of any ideas, suggestions, and/or proposals to us ("Feedback") is at your own risk and that Heart of Avalon, Inc. has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Heart of Avalon, Inc. a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner it deems appropriate, any and all Feedback, and to sublicense the foregoing rights.
2.7 Use of the Site.
By joining this Site, you become a member of the Heart of Avalon, Inc. platform. Each member lists skills/services he or she is experienced with. Upon signup, you may receive a certain number of simbi for bidding in the marketplace (limit one set of free simbi per user). For each service you perform, you can earn a certain number of simbi based on the outcome of the offer. With your simbi, you can bid on services in the marketplace from other members.
When agreeing to receiving simbi for a service that you listed, the other party’s simbi are automatically transferred to your account or held in "pending" status by Heart of Avalon, Inc. until services are delivered.
You agree not to post content or listings in an inappropriate category or areas of the site.
You agree not to violate any laws, third party rights or our policies.
You agree to deliver services agreed upon from you, unless the winner fails to meet the terms in your listing or you cannot authenticate the other party’s identity.
You agree not to manipulate the price or interfere with any listings.
You agree not to post false, inaccurate, misleading, defamatory, or libelous content (including personal information).
You agree not to promote your referral links or the Site using SPAM or deceptive tactics.
You agree not to solicit offline transactions or exchange any skills or services for cash.
You agree not to distribute or post SPAM, unsolicited, or bulk electronic communications, chain letters, or pyramid schemes.
You agree not to collect information about users, including email addresses, names, listings, etc. without their consent.
At present, Site membership is free, but we may institute a charge at some point in the future to defray the cost of providing this valuable service. If we do add any fees, you will be given plenty of notice and have the opportunity to accept or decline the charges.
You understand that, except for information, products or services clearly identified as being supplied by Heart of Avalon, Inc., Heart of Avalon, Inc. does not operate, control or endorse any information, products or services on the Internet in any way. Except for Heart of Avalon, Inc.- identified information, products or services, all information, products and services offered through the Site or on the Internet generally are offered by third parties, that are not affiliated with Heart of Avalon, Inc. You also understand that Heart of Avalon, Inc. cannot and does not guarantee or warrant that files available for downloading through the Site will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data.
You understand that the United States requires all taxpayers to report the fair market value of their earnings from all sources. Heart of Avalon, Inc. recommends speaking to your tax advisor about how to report business income or expenses incurred in the course of receiving and providing services via the Site.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE INTERNET. HEART OF AVALON, INC. PROVIDES THE SITE AND RELATED INFORMATION "AS IS" AND DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NONINFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICE, ANY MERCHANDISE INFORMATION OR SERVICE PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY, AND HEART OF AVALON, INC. SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES, MERCHANDISE AND OTHER INFORMATION PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY. HEART OF AVALON, INC. DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.
YOU UNDERSTAND FURTHER THAT THE PURE NATURE OF THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU. YOUR ACCESS TO SUCH MATERIALS IS AT YOUR RISK. HEART OF AVALON, INC. HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.
LIMITATION OF LIABILITY
IN NO EVENT WILL HEART OF AVALON, INC. BE LIABLE FOR (I) ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, OR ANY INFORMATION, OR TRANSACTIONS PROVIDED ON THE SERVICE, OR DOWNLOADED FROM THE SERVICE, OR ANY DELAY OF SUCH INFORMATION OR SERVICE. EVEN IF HEART OF AVALON, INC. OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE AND/OR MATERIALS OR INFORMATION DOWNLOADED THROUGH THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, HEART OF AVALON, INC. LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Heart of Avalon, Inc. makes no representations whatsoever about any other web site which you may access through this one or which may link to this Site. When you access a non-Heart of Avalon, Inc. web site, please understand that it is independent from Heart of Avalon, Inc. and that Heart of Avalon, Inc. has no control over the content on that web site. In addition, a link to a Heart of Avalon, Inc. web site does not mean that Heart of Avalon, Inc. endorses or accepts any responsibility for the content, or the use, of such web site.
Registration in Own Name
Accounts may be registered only by the individual seeking membership. Registration of accounts in a name other than the registrant's, fictitious or real is expressly prohibited. Such use constitutes fraud and may give rise to criminal prosecution and substantial damages. Heart of Avalon, Inc. prosecutes fraud to the fullest extent of the law.
Your account and simbi are not transferable outside of legitimate transactions on Heart of Avalon, Inc.
3. USER CONTENT
3.1 User Content. "User Content" means any and all information and content that a Poster or Recipient submits via the Site or Services (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Heart of Avalon, Inc. Because you alone are responsible for your User Content (and not Heart of Avalon, Inc.), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Heart of Avalon, Inc. is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire. Heart of Avalon, Inc. has no responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Site or Services. You acknowledge that Heart of Avalon, Inc. has no obligation to pre-screen User Content, although Heart of Avalon, Inc. reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content at any time for any reason. PLEASE MAKE SURE THAT YOU ONLY PROVIDE INFORMATION TO THE SERVICES THAT YOU ARE ALLOWED TO PROVIDE WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT ANY INFORMATION YOU PROVIDE WILL BE ACCESSIBLE BY USERS OF THE SITE AND SERVICES.
3.2 License. You hereby grant, and you represent and warrant that you have the right to grant, to Heart of Avalon, Inc. an irrevocable, nonexclusive, royalty-free, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3.3 Ownership. Each user owns its own User Content. By making available your User Content on or in the Site or Services, you represent that you own or have all rights necessary to make available your User Content.
3.4 Acceptable Use Policy. The following sets forth Heart of Avalon, Inc.’s "Acceptable Use Policy":
(a) You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to use the Site or Services to: (i) engage in any deceptive, misleading, or unfair conduct, including failing to provide services as promised, or providing misdescribed skills or services, or otherwise deceiving or misleading another member; (ii) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (iii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise, including making any offer for money or compensation via email; (iv) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (v) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (vi) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (vii) harass or interfere with another user’s use and enjoyment of the Site or Services; (viii) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials), or (ix) engage in any shill transactions for the purpose of building up simbi.
3.5 Enforcement and Termination. We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your access to the Site or Services in accordance with Section 11, and/or reporting you to law enforcement authorities. PARTICIPATION IN THE HEART OF AVALON, INC. COMMUNITY IS A PRIVILEGE AND NOT A RIGHT AND WE RESERVE THE RIGHT TO TERMINATE YOUR ACCOUNT (INCLUDING CANCELING ANY SIMBI CREDITS) AT ANY TIME IF YOU ENGAGE IN ANY CONDUCT THAT WE BELIEVE IS ABUSIVE, THREATENING, DISHONEST, OR OTHERWISE DISRUPTIVE TO THE HEART OF AVALON, INC. COMMUNITY. IF WE DO SO, YOU WILL FORFEIT ALL SIMBI AND UNPROVIDED TRANSACTIONS WILL BE REFUNDED TO THE OTHER USER.
3.6 Exchanged Material
By using this Site, you agree to participate in the exchange of skills and services.
Listing or Posting
By listing or posting skills and services, you aver that you have the unrestricted right to transfer these acts. The posting or listing of services without the intention of providing them away when requested is expressly prohibited.
You agree that all services posted are legal and do not infringe any intellectual property rights, including but not limited to copyrights, trademarks, and patents.
Sexually explicit, pornographic, or obscene material
You agree not to post or provide any services of a sexually explicit, pornographic, or obscene nature.
Services in violation of law
You further agree that you will not post any services in violation of the laws or regulations of any state, city, county, parish, township, municipality, federal agency, or other governmental entity.
No Site Review
You understand that Heart of Avalon, Inc. cannot review services posted to the Site. You agree to assume full responsibility for any services posted to your account and bid on by you. You agree to indemnify and hold Heart of Avalon, Inc. harmless for any violations of law or regulation that arise in connection with the posting to your account of services resulting in civil or criminal liability.
4. INDEMNITY. You agree to indemnify and hold Simibi (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site or Services, (b) your User Content, (c) your violation of this Agreement; (d) your violation of applicable laws or regulations, or (e) your participation in any Transaction. Heart of Avalon, Inc. reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Heart of Avalon, Inc. Heart of Avalon, Inc. will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
5. OTHER USERS
5.1 Other Users. Each Recipient is solely responsible for any and all of his/her User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Recipients that use the Site or Services are solely between you and such user. You agree that Heart of Avalon, Inc. will not be responsible for any loss or damage incurred as the result of any such interactions, including in connection with any Transaction. If there is a dispute between you and any other user, we are under no obligation to become involved.
5.2 Release. To the extent permitted under applicable laws, you hereby release and forever discharge Heart of Avalon, Inc. (and its officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions or exchange of goods with, or act or omission of, other Site or Service users or your participation in any Transaction, including any claim for personal injury, property damage, or death. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
6. FEE TERMS
6.1 Taxes. You will be responsible for paying any applicable taxes relating to your payments and credits received and will indemnify and hold harmless Heart of Avalon, Inc. from any and all taxes, including sales tax, based on any payments made or received by you in connection with the Services. Any taxes imposed on payments will be your sole responsibility. Upon our request, you will provide Heart of Avalon, Inc. with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.
7. MOBILE TEXT MESSAGE TERMS.
The following terms apply to everyone who provides Heart of Avalon, Inc. with their mobile phone number for message notification purposes. When you provide Heart of Avalon, Inc. with your mobile phone number for message notification purposes, you are expressly consenting to receive a text message on behalf of Heart of Avalon, Inc., containing notifications of new messages you have received (the "Text Services"). We do not charge a fee for the Text Services; however, depending on your messaging plan, your mobile carrier may charge you for each message we send you or that you send us. It is your responsibility to know whether your carrier will charge you per-message costs (for instance, if you do not have an unlimited texting plan, or have exceeded your monthly quota of free messages). We assume no responsibility for charges incurred by your using the Text Services. The Text Services may not be available in all areas at all times. This means we may not be able to successfully transmit SMS/MMS messages to you, and we have no liability for any such transmission delay or message failure. The Text Services may not work in the event of product, software, coverage, or other changes made by your wireless carrier or changes you make to your mobile device. You must provide your own wireless device, subscribe to a wireless service on a participating mobile carrier, and be able to receive text messages using that wireless device and your carrier’s service.
HEART OF AVALON, INC. MAKES NO WARRANTIES REGARDING USERS OR THE SERVICES, INCLUDING THE CONTENT OR SERVICES MADE AVAILABLE THROUGH THE SERVICES, OR THE INTERACTIONS (IF ANY) BETWEEN THE USERS WITHIN OR OUTSIDE OF THE SITE, AND EACH OF THE FOREGOING IS PROVIDED BY US "AS IS." YOU ACKNOWLEDGE AND AGREE THAT THE SITE MERELY PROVIDES A NEUTRAL NETWORK THROUGH WHICH USERS CAN INTERACT. YOUR INTERACTIONS WITH OTHER USERS ARE SOLELY BETWEEN YOU AND SUCH USER, INCLUDING TRANSACTIONS, AND HEART OF AVALON, INC. SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. YOU SHOULD CONDUCT YOUR OWN INVESTIGATION PRIOR TO RECEIVING OR PURCHASING A SERVICE. YOU ACKNOWLEDGE THAT AS WITH ALL TRANSACTIONS, IF YOU ARE A RECIPIENT YOU ARE SOLELY RESPONSIBLE FOR INSPECTING ALL GOODS AND SERVICES BEFORE USING THEM AND YOU ASSUME ALL RISK OF USE. IF THERE IS A DISPUTE BETWEEN YOU AND ANY USER, HEART OF AVALON, INC. IS UNDER NO OBLIGATION TO BECOME INVOLVED, BUT RESERVES THE RIGHT TO DO SO. WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. LIMITATION ON LIABILITY
BY USING THE SITE AND SERVICES AND BEING A PARTY TO ANY TRANSACTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SITE AND SERVICES MERELY CONSTITUTE A NEUTRAL FORUM THROUGH WHICH USERS CAN INTERACT WITH EACH OTHER. SITE AND HEART OF AVALON, INC. ARE NOT A PARTY TO ANY TRANSACTION. EACH USER ENTERS INTO A TRANSACTION AT HIS OR HER OWN RISK AND FOREVER WAIVES, DISCHARGES, AND RELEASES HEART OF AVALON, INC. FROM ANY CLAIM RELATED TO OR ARISING OUT OF ANY TRANSACTION. NO OBLIGATION TO COMPLETE A TRANSACTION IS CREATED BY THE SITE AND A POSTER OR RECIPIENT MAY CANCEL A TRANSACTION AT ANY TIME BEFORE THE PHYSICAL EXCHANGE OF SERVICES OCCURS. BY POSTING AN OFFER TO ENTER INTO A TRANSACTION, THE POSTER IS WARRANTING THAT THE SERVICE POSTED IS IN THE CONDITION DESCRIBED. BY ENTERING INTO A TRANSACTION, BOTH PARTIES TO THE TRANSACTION HAVE THE RESPONSIBILITY OF ENSURING THAT SERVICE EXCHANGED ARE LEGAL AND CONDUCTED BY A PROFESSIONAL OR LICENSED WORKER, AND THAT SERVICE IS SAFE FOR ITS INTENDED USE. NOTWITHSTANDING THE FOREGOING, ALL RECIPIENTS ACKNOWLEDGE AND AGREE TO BE SOLELY RESPONSIBLE FOR INSPECTING ALL SERVICES BEFORE USE AND FOR ANY DECISION TO USE THE SERVICES. ANY AND ALL CLAIMS ARISING OUT OF ANY TRANSACTION, WHETHER FOR CLAIMS FOR PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, MUST BE DIRECTED TO THE POSTER OR MANUFACTURER OF THE ITEM OR SERVICE. FOR THE AVOIDANCE OF DOUBT, RECIPIENT ASSUMES ALL LIABILITY AND RISK FOR ANY TRANSACTION TO WHICH RECIPIENT IS A PARTY. IN NO EVENT SHALL HEART OF AVALON, INC., ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES. INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA, INCOME, PROFIT OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY, ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE SITE OR SERVICES OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE SITE OR SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE EXTENT ALLOWED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HEART OF AVALON, INC. AND YOU.
10. TERM AND TERMINATION. Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. You may terminate your Account at any time, for any reason, by following the instructions on the Site or uninstalling the App. We may (a) suspend your rights to use the Site and/or Services (including your Heart of Avalon, Inc. Account) and/or (b) terminate this Agreement at any time for any reason. Upon termination of this Agreement, your Heart of Avalon, Inc. Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account involves deletion of your User Content associated therewith from our live databases and loss of your simbi. Heart of Avalon, Inc. will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account, deletion of your User Content, or loss of your simbi. All provisions of this Agreement which by their nature should survive, will survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
11. COPYRIGHT POLICY. Heart of Avalon, Inc.respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: (a) your physical or electronic signature; (b) identification of the copyrighted work(s) that you claim to have been infringed; (c) identification of the material on our services that you claim is infringing and that you request us to remove; (d) sufficient information to permit us to locate such material; (e) your address, telephone number, and e-mail address; (f) a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and (g) a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner. Heart of Avalon, Inc.’s Copyright Agent to receive DMCA takedown notices is KJ Erickson: 1975 Bent Tree Place, Santa Rosa, CA 94115; firstname.lastname@example.org. You acknowledge that for us to be authorized to take down any content, your DMCA takedown notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
11.1 Copyright, Licenses and Idea Submissions.
The entire contents of the Site are protected by international copyright and trademark laws. The owner of the copyrights and trademarks are Heart of Avalon, Inc., its affiliates or other third party licensors. YOU MAY NOT MODIFY, COPY, REPRODUCE, REPUBLISH, UPLOAD, POST, TRANSMIT, OR DISTRIBUTE, IN ANY MANNER, THE MATERIAL ON THE SITE, INCLUDING TEXT, GRAPHICS, CODE AND/OR SOFTWARE. You may print and download portions of material from the different areas of the Site solely for your own non-commercial use provided that you agree not to change or delete any copyright or proprietary notices from the materials. You agree to grant to Heart of Avalon, Inc. a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, to reproduce, read, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products and services) you submit to any public or private areas of the Site (such as listings, comments, messages, feedback, bulletin boards, forums and newsgroups) or by e-mail to Heart of Avalon, Inc. by all means and in any media now known or hereafter developed. You also grant to Heart of Avalon, Inc. the right to use your name in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse against Heart of Avalon, Inc. for any alleged or actual infringement or misappropriation of any proprietary right in your communications to Heart of Avalon, Inc.
Publications, products, content or services referenced herein or on the Site are the exclusive trademarks or servicemarks of Heart of Avalon, Inc. Other product and company names mentioned in the Site may be the trademarks of their respective owners.
12.2 Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section ("Arbitration Agreement") carefully. It is part of your contract with Heart of Avalon, Inc. and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Contact Heart of Avalon, Inc. First. If a dispute arises between you and Heart of Avalon, Inc., our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that you will notify us about any dispute you have with Heart of Avalon, Inc. regarding our Site or Services by emailing email@example.com.
(b) Applicability of Arbitration Agreement. All claims and disputes in connection with the Terms or the use of any product or service provided by Heart of Avalon, Inc. that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Heart of Avalon, Inc., and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(c) Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association ("AAA"), an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms ("Arbitration Rules"). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in the capital of your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
(e) Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Heart of Avalon, Inc., and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Heart of Avalon, Inc.
(f) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Heart of Avalon, Inc. in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND HEART OF AVALON, INC. WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(g) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in San Francisco, California.
(h) Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law.. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(i) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
(j) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(k) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Heart of Avalon, Inc.
(l) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in San Francisco, California, for such purpose.
(m) Governing Law. The Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.3 Miscellaneous. This Agreement constitutes the entire agreement between you and us, and supersedes all prior and contemporaneous discussions between the parties with respect to the subject matter hereof. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Heart of Avalon, Inc.’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. This Agreement is binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. Your relationship to Heart of Avalon, Inc. is that of an independent contractor, and neither party is an agent or partner of the other.
12.4 Copyright/Trademark Information. Copyright © 2015, Heart of Avalon, Inc. All rights reserved. All trademarks, logos and service marks ("Marks") displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
12.5 Contact Information. Heart of Avalon, Inc.’s contact information for any end-user questions, complaints or claims with respect to the Site of Services is:
Address: 2193 Datoro Drive, San Jose, CA 95130 Email: firstname.lastname@example.org
12.6 Electronic Communications. The communications between you and Heart of Avalon, Inc. use electronic means, whether you visit the Site or send Heart of Avalon, Inc. e-mails, or whether Heart of Avalon, Inc. posts notices on the Site or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Heart of Avalon, Inc. in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Heart of Avalon, Inc. provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
12.7 Release. You hereby release Heart of Avalon, Inc. and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
12.8 Force Majeure. Heart of Avalon, Inc. shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.9 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Heart of Avalon, Inc. Properties, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
12.10 Consumer Complaints. In accordance with California Civil 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.