AVVA Mobile Application Terms of Use

AVVA MOBILE APPLICATION TERMS OF USE

PLEASE READ THESE TERMS OF USE CAREFULLY. DOWNLOADING, INSTALLING, ACCESSING OR USING THIS AVVA MOBILE APPLICATION (THE “APPLICATION”) CONSTITUTES ACCEPTANCE OF THESE TERMS OF USE (“TERMS”), AS SUCH MAY BE REVISED BY AVVA FROM TIME TO TIME, AND IS A BINDING AGREEMENT BETWEEN THE USER (“USER”) AND AVVA CORPORATION (“AVVA”) GOVERNING THE USE OF THE APPLICATION. IF USER DOES NOT AGREE TO THESE TERMS, USER SHOULD UNINSTALL THIS APPLICATION IMMEDIATELY. THESE TERMS CONTAIN DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO USER.

These terms include an Arbitration provision that governs any disputes between you and us. This provision will:

• Eliminate your right to a trial by jury; and
• Substantially affect your rights, including preventing you from bringing, joining or participating in class or consolidated proceedings.

You agree that we may provide notices, disclosures and amendments to these Terms by electronic means, including by changing these Terms within the Application or by posting revisions on the AVVA Website.

Eligibility

The Application is not targeted towards, nor intended for use by, anyone who is not a current AVVA member or who is eligible for AVVA membership and considering in good-faith to become a member. USERS MUST BE AN AVVA MEMBER OR PROSPECTIVE MEMBER WHO IS ELIGIBLE TO BECOME AN AVVA MEMBER (INCLUDING BY MEETING THE AVVA AGE REQUIREMENT) TO ACCESS AND USE THE APPLICATION. If the User is under the age of 21, that user may only use the Application under the supervision of a parent or legal guardian who agrees to be bound by these Terms. User represents and warrants that (a) they are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (b) they are not listed on any U.S. government list of prohibited or restricted parties.

In order to use certain functions of our Application, you must be in an AVVA Membership Agreement. Further, you agree to (a) create no more than one account in the AVVA Application; (b) provide accurate, truthful, current and complete information when creating your account that doe not differ from or contradict the information provided in your AVVA Application; (c) maintain and promptly update your account information to ensure same is always accurate; (d) maintain the security of your account by not sharing your password with others and restricting access to your account and your computer; (e) promptly notify AVVA if you discover or otherwise suspect any security breaches relating to the Application; and (f) take responsibility for all activities that occur under your account and accept all risks of authorized and unauthorized access.

Privacy

Please read the Privacy Policy carefully to understand how AVVA collects, uses and discloses personally identifiable information from its users. By downloading, installing, accessing or using the Application, you consent to all actions that we take with respect to your data consistent with our Privacy Policy.

Apple & Android Terms and Conditions; AVVA Policies

These Terms supplement and incorporate (a) the Apple, Inc. (“Apple”) Terms and Conditions (located at http://www.apple.com/legal/internet-services/itunes/us/terms.html) including, without limitation, the Licensed Application End User License Agreement provided therein (“Apple Terms”); (b) the Android / Google Play Terms of Service (located at https://play.google.com/about/play-terms/), and (c) all other AVVA policies, including but not limited to AVVA Rewards, posted at www.driveavva.com (“AVVA Website”). If any of the provisions of the Apple Terms and Conditions conflict with these Terms, the Apple Terms and Conditions will control, solely to the extent such terms apply to the Application. AVVA, not Apple, is solely responsible for the Application and the content thereof.

AVVA Rewards Program

The AVVA Rewards Program is only accessible through the Application and all users that download the Application are automatically enrolled in the Rewards Program. Please refer to the AVVA Rewards Terms & Conditions for more information about the terms, conditions and policies that apply to your registration and use of the Rewards Program.

Mobile Payment

Users who download the Application to a Device may also be given an opportunity to elect to participate in certain functionality of the Application which will allow the User to make payments to AVVA from their Device by linking a credit card, debit card or mobile wallet to your account, and using it to pay amounts owed to AVVA directly through the Application (“Mobile Payment”). Please note that there may be an nominal additional fee for directly linking one of the foregoing payment options to your account. AVVA reserves the right at any time to discontinue Mobile Payment without any further notice to you.

Push Notifications and In-App Messages

Upon download of this Application, the User is provided the option to opt in to receive push notifications from AVVA on their Device. This may include promotional communications, offers, and/or system messages pushed to the Device or within the Application mailbox (“Push Notifications”). The User may, at any time following download of this Application, opt out of receiving Push Notifications by adjusting the “AVVA Notifications” switch within the Application settings to “off”, or within the Device’s settings application under “Notifications” to completely opt out of Push Notifications. Opting out of Push Notifications will not affect User settings with respect to Email Communications. Further, you agree to release AVVA and waive any and all claims and/or damages you may suffer as a result of receiving or not receiving such Notifications.

Finally, by using this Application, in-app messages will automatically be displayed to the User via the Application’s display tiles and/or sent to the User via the Application’s inbox, including promotional communications and offers. By downloading and/or using the APplication you are consenting to receive all such in-app messages, regardless of what the subject matter may be for such messages, as long as same are reasonable as determined by AVVA in its sole discretion.

Copyright, Trademarks, and User License

Unless otherwise indicated, the Application and all content and other materials therein, including, without limitation, the AVVA logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Application Materials”) are the property of AVVA or its licensors or users and are protected by U.S. and international copyright laws. AVVA, the AVVA logo, and other AVVA trademarks, service marks, graphics, and logos used in connection with the Application are trade names, trademarks or registered trademarks of AVVA, Inc. and/or its affiliates (collectively “AVVA Marks”). Other trademarks, service marks, graphics and logos used in connection with the Application are the trademarks or registered trademarks of their respective owners (collectively “Third Party Marks”). The AVVA Marks and Third-Party Marks may not be copied, imitated, or used, in whole or in part, without the prior written permission of AVVA or the applicable trademark holder. The Application and the Content are protected by copyright, trademark, patent, trade secret, international treaties, state and federal laws, and other proprietary rights and also may have security components that protect digital information only as authorized by AVVA or the owner of the Content. All rights not expressly granted are reserved.

Subject to these Terms, AVVA grants the User a personal, non-exclusive, non-transferable, limited, and revocable license to use the Application for personal use only in accordance with these Terms (“User License”). Any use of the Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the Application (“Content”) is prohibited. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring in any manner, whether by implication, estoppel or otherwise, any title or ownership of, or exclusive use-rights to, any intellectual property or other right and any goodwill associated therewith These Terms and User License also govern any updates to, or supplements or replacements for, the Application, unless separate terms accompany such updates, supplements, or replacements, in which case the separate terms will apply.

Acceptable Use

User’s use of the Application, any Content, and any information provided by the User including user names and passwords, addresses, e-mail addresses, phone number, financial information (such as credit card numbers), information related to an employer name, or GPS location (“User Information”) transmitted in connection with the Application is limited to the contemplated functionality of the Application. In no event may the Application be used in a manner that (a) harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights); (b) is unlawful, fraudulent, or deceptive; (c) provides sensitive personal information unless specifically requested by AVVA, (d) includes spam or any unsolicited advertising; (e) uses technology or other means to access AVVA or Content that is not authorized by AVVA; (f) uses or launches any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” to access AVVA or Content; (g) attempts to introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; (h) attempts to gain unauthorized access to AVVA’ computer network or user accounts; (i) encourages conduct that would constitute a criminal offense or that gives rise to civil liability; (j) violates these Terms; (k) attempts to damage, disable, overburden, or impair AVVA’ servers or networks; (l) impersonates any person or entity or otherwise misrepresents your identity or affiliation with another person or entity; or (m) fails to comply with applicable third party terms (collectively “Acceptable Use”). AVVA reserves the right, in its sole discretion, to terminate any User License, terminate any User’s participation in Mobile Payment or MOP, remove Content, or assert legal action with respect to Content or use of the Application, including Mobile Payment or MOP, that AVVA reasonably believes is or might be in violation of these Terms, Apple Terms, or AVVA policies including the AVVA Card Terms and Conditions. AVVA’ failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms. AVVA requests that Users not use the Application, including that they not place orders through MOP, while driving.

Indemnification

The User agrees to defend, indemnify, and hold harmless AVVA, its parent, subsidiary and other affiliated companies, independent contractors, service providers and consultants, and their respective employees, contractors, agents, officers, and directors (“AVVA Indemnitees”) from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including attorneys’ fees) (“Claims”) that arise from or relate to the User’s use or misuse of the Application (including Mobile Payment or MOP), violation of these Terms, or violation of any rights of a third party. Notwithstanding the foregoing, this indemnification provision shall not apply to any Claims caused by an AVVA Indemnitee’s intentional misconduct, but shall still apply in the event of an AVVA Indemnitee’s negligence or gross negligence. AVVA reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses. In the event of any third-party claim that the Application or User’s possession and use of the Application infringes that third party’s intellectual property right, AVVA, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim. Further, in the event AVVA is entitled to indemnification pursuant hereto, AVVA shall be entitled to choose its legal counsel and agree to the terms of engagement with such counsel and you agree to pay the attorney fees and expenses incurred as a result of such engagement on a monthly basis and/or as invoices are otherwise issued by such counsel.

Disclaimers; NO WARRANTIES

AVVA IS PROVIDING THE APPLICATION TO THE USER “AS IS” AND THE USER IS USING THE APPLICATION AT HIS OR HER OWN RISK. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, AVVA DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE APPLICATION IS MERCHANTABLE, RELIABLE, AVAILABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING, FREE OF DEFECTS OR VIRUSES, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE USE OF THE APPLICATION BY THE USER IS IN COMPLIANCE WITH LAWS APPLICABLE TO THE USER, THAT USER INFORMATION OR ORDERS TRANSMITTED IN CONNECTION WITH THE APPLICATION (INCLUDING AS PART OF MOBILE PAYMENT OR MOP) WILL BE SUCCESSFULLY, ACCURATELY, OR SECURELY TRANSMITTED OR RECEIVED, THAT ORDERS WILL BE AS PLACED OR READY AT THE SUGGESTED TIME, OR THAT ANY PARTICULAR ITEM ORDERED WILL BE AVAILABLE. THE MATERIALS AND INFORMATION IN THE APPLICATION MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. NOTWITHSTANDING THE FOREGOING, NONE OF THE DISCLAIMERS IN THIS PARAGRAPH SHALL APPLY TO WARRANTIES RELATED TO PERSONAL INJURY.

No Liability

SUBJECT TO APPLICABLE LAW, INCLUDING WITH RESPECT TO LIABILITY FOR PERSONAL INJURY OR NON-WAIVABLE STATUTORY RIGHTS UNDER TEXAS LAW, IN NO EVENT SHALL AVVA OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS OR AGENTS (A) BE LIABLE TO THE USER WITH RESPECT TO USE OF THE APPLICATION, INCLUDING WITHOUT LIMITATION PARTICIPATION IN MOBILE PAYMENT OR MOP, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE APPLICATION, OR ANY DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO AVVA’S RECORDS, PROGRAMS OR SERVICES; OR (B) BE LIABLE TO THE USER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APPLICATION OR ANY OF ITS FEATURES OR DEVICE FAILURE OR MALFUNCTION. THE USER’S SOLE REMEDY IS TO CEASE USE OF THE APPLICATION OR TO CEASE PARTICIPATION IN MOBILE PAYMENT OR MOP.

IF YOU RESIDE IN A JURISDICTION OTHER THAN TEXAS, YOUR JURISDICTION MAY NOT ALLOW THE LIMITATION OF LIABILITY IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Third Party Content, Applications, Products and Services (including Advertising and Promotions)

AVVA may provide third party content in the Application (including embedded content) or links to third party content, applications, products and services, including advertisements and promotions (collectively, “Third Party Content”) as a service to those interested in this information. We do not control, endorse or adopt any Third-Party Content, including that the inclusion of any link does not imply affiliation, endorsement or adoption by AVVA of any application or any information contained therein, and can make no guarantee as to its accuracy or completeness. You acknowledge and agree that AVVA is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review such Third-Party Content. You agree to use such Third-Party Content contained therein at your own risk. When you use other applications via Third-Party Content, or participate in promotions or business dealings with third parties, you should understand that our terms and policies no longer govern, and that the terms and policies of those third-party applications will now apply. You should review the applicable terms and policies, including privacy and data gathering practices, of any application to which you navigate from our Application. You must comply with any applicable third-party terms when using the Application.

Modifications to the Application

AVVA reserves the right to modify or discontinue, temporarily or permanently, the Application or any features or portions thereof without prior notice. You agree that AVVA will not be liable for any modification, suspension or discontinuance of the Application or any part thereof.

Arbitration

Please read this section carefully. It affects rights that you may otherwise have. It provides for resolution of most disputes through mandatory, binding arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This arbitration clause shall survive termination of these Terms.

Binding Arbitration. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to these Terms, the Application, your use of the Application, and your relationship with AVVA. Any dispute or claim arising out of or relating to these Terms, the Application, your use of the Application, and/or your relationship with AVVA or any subsidiary, parent or affiliate company or companies (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration.

Arbitration Procedures. For all disputes, before initiating arbitration proceedings you must first send a written description of your claim to AVVA by mailing same to AVVA at PO Box 190107 Dallas, Texas 75219, to allow us an opportunity to review, consider, and if appropriate, attempt to resolve the dispute. You and AVVA each agree to negotiate your claim in good faith. You may then request or initiate arbitration proceedings if your claim or dispute is not resolved within 60 days from the day AVVA receives your written complaint.

The arbitration of any dispute or claim shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”), as modified by these Terms. The AAA Rules and information about arbitration and fees are available online at www.adr.org. You and we agree that these Terms evidence a transaction in interstate commerce and that this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and will not be governed by state law. Further, you and we agree that any arbitration will be held in Dallas County, Texas, unless you and we agree in writing to proceed in a different mutually agreed upon location. The arbitration will be conducted in the English language. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your individual claim, and must follow and enforce these Terms as a court would. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.

Costs of Arbitration. Upon filing of the arbitration demand, unless required otherwise by applicable statutory law, you and we will each pay 50% of all filing, administration and arbitrator fees. Each party will bear the fees and expense of its own attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration and same shall generally not be recoverable by either party. However, for claims under $10,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable and necessary attorneys’ fees and costs. Likewise, in the event the arbitrator determines that one (1) or more of your asserted claims is frivolous, AVVA shall be entitled to recover their reasonable and necessary attorney fees for the entire arbitration.

Class Action Waiver and Jury Waiver. You and we each agree that any and all arbitration proceedings (and if permitted to proceed in Court, such proceedings) will be conducted only on an individual basis and not in a class, consolidated or representative action. If a court or arbitrator determines in an action between you and us that this class action waiver is unenforceable, the arbitration agreement will be void as to you. If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.

Governing Law and Jurisdiction

These Terms and use of the Application are governed by the laws of the state of Texas, United States of America, without regard to Texas’s conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. If the arbitration agreement is ever deemed unenforceable or void or a dispute between the parties is not subject to arbitration, the User irrevocably consents to the exclusive jurisdiction of the state courts in Dallas County, Texas, United States of America, for purposes of any legal action arising out of or related to the Application, use of the Application or these Terms.

Third Party Beneficiary

Apple, Google and their subsidiaries are third party beneficiaries of these Terms. Upon User’s acceptance of these Terms, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce these Terms against User as a third-party beneficiary thereof.

Termination

Notwithstanding any of these Terms, AVVA reserves the right, without notice and in its sole discretion, to terminate your license to use the Application and to block or prevent your future access to and use of the Application. AVVA’ failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.

Changes

AVVA reserves the right to change or modify these Terms or any other AVVA policies related to use of the Application at any time and at its sole discretion by changing these Terms within the Application or by posting revisions on the AVVA Website. Continued use of the Application following such changes or modifications to the Terms or other AVVA policies will constitute acceptance of such changes or modifications.

Severability

If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

Member Agreement Terms Incorporated Herein

It is agreed and understood that in addition to the Terms set forth herein, all terms of your AVVA Membership Agreement are hereby incorporated by reference as if set forth in full herein. Accordingly, please review your Membership Agreement prior to accessing and/or downloading the AVVA Application on your Device.

Contact

Any questions, complaints, or claims regarding the App should be directed to:

AVVA
PO Box 190107
Dallas, Texas 75219