This Agreement applies conditions to your use of any AVAD-operated website or application that links to this Agreement (collectively, the “Site”), and products purchased from AVAD and its affiliated marketplace stores. Please note that different or additional terms may apply to some services or features offered on this Site.
By accessing and using the Site AND/OR PURCHASING A PRODUCT FROM US, you agree to be bound by this Agreement. DO NOT ACCESS THE SITE, PURCHASE PRODUCTS FROM THE SITE, OR USE THE SITE IN ANY WAY IF YOU DO NOT AGREE TO THIS AGREEMENT.
IMPORTANT NOTICE: YOUR USE OF THE SITE IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 10, REQUIRING ALL CLAIMS TO BE RESOLVED VIA BINDING ARBITRATION.
1. Revisions to this Agreement
We may revise and update this Agreement from time to time, and will post the updated Agreement to the Site. Unless otherwise stated in the amended version of the Agreement, any changes to this Agreement will apply immediately upon posting. We are not obligated to provide you with notice of any changes. Your continued use of this Site and/or the products will constitute your agreement to any new provisions within the revised Agreement.
2. Site Ownership; Your License to Access this Site
A.Ownership. All written content prepared and posted by AVAD, and the Site design, layout, look, appearance, and graphics, as well as the trademarks, service marks, and logos contained on our Site (collectively, “AVAD Content”) are owned by or licensed to AVAD and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. AVAD reserves all rights not expressly granted in, and to, the Site and the AVAD Content.
B. License. On the condition that you comply with all your obligations under this Agreement, AVAD grants you a limited, revocable, non-exclusive, non-transferable license to access the Site. Any use of the Site in excess of this license is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use this Site. Except as otherwise provided in this Agreement, no part of the Site and/or the products and no AVAD Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use without AVAD prior express written consent. Your access to this Site and/or the products is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any content or products we provide on the Site without notice.
C. Restrictions on Use of Site. In addition to complying with other terms and conditions applicable to your use of the Site, you agree that when using the Site, you will not:
- Delete, modify, or attempt to change or alter any of the AVAD Content or notices on the Site;
- Introduce into the Site any virus, rogue program, time bomb, drop dead device, back door, trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Site, or to otherwise harm other users, AVAD Content, or any third parties, or perform any such actions;
- Use the Site to commit fraud or conduct other unlawful activities, including using stolen payment information to make a purchase or attempting to resell or trade in a stolen bike;
- Access or attempt to access any other person’s account, information, or content without permission;
- Copy, modify, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Site is based;
- Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Site for any reason;
- Use any AVAD Content made available through the Site in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
- Decrypt, transfer, frame, display, or translate (except translations for personal use) any part of the Site;
- Connect to or access any AVAD computer system or network without authorization; or
- Use the information in the Site to create or sell a similar service.
D. Site Availability. There may be times when the Site is unavailable due to technical errors or for maintenance and support activities. We do not represent, warrant, or guarantee that the Site will always be available or is completely free of human or technological errors. You must provide the equipment and Internet connections necessary to access the Site at your own expense. We do not guarantee that the Site will operate with your computer, mobile device, internet service plans, or mobile provider service plans or with any particular computer or other piece of hardware, software, equipment, or device you install on or used with your computer.
E. Right to Suspend or Terminate Access. WAVE may suspend or terminate, in whole or in part, your access to the Site and the related services if you violate this Agreement. If your violation of this Agreement is related to the purchase of a product on the Site, AVAD may also cancel or void any related purchase.
3. User Reviews and Other Submitted Content
The Site may include features that allow you to upload, submit, or send content through the Site (e.g., product reviews) (“Your Content”). This Section provides the terms and conditions governing your use of such features.
A. License to Your Content. By submitting Your Content to the Site, you grant AVAD a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, create derivative works of, adapt, display, and perform Your Content in all media now known or hereafter created without attribution. You hereby waive all moral rights to Your Content. You represent and warrant that you have the necessary rights to Your Content, including the right to grant a license to your rights in this Agreement. Please do not submit Your Content to the Site if do not wish to grant us the rights set forth in this Section.
B. Prohibited Content. You agree that you will not use the Site to send, post, or publish:
- Any content that is obscene, defamatory, threatening, harassing, abusive, slanderous, racially, or ethnically offensive, hateful, or embarrassing to any other person or entity;
- Any content that displays, describes or encourages usage of any product we sell in a manner that could be offensive, inappropriate or harmful to WAVE or any user or consumer or that is contrary to any instructions or warnings relating to the product;
- Any review of a product that does not reflect your lawful, honest, and good faith opinion or discloses any material conflict of interest or relationship that might influence your opinion;
- Any message, data, code, or software that would violate our, or any third party, proprietary, or intellectual property rights, including unauthorized copyright text, images, programs, trade secrets, or other confidential or proprietary information, or use trademarks or service marks in an infringing fashion;
- Any personal information of a third party, or images that include a third party or depict a third party’s likeness, without the third party’s prior written consent;
- Any advertisements or solicitations of business, chain letters, pyramid schemes, or bulk e-mail lists or upload;
- Any materials that violate, could cause us or a third party to violate, or encourage us or a third party to violate any applicable law, statute, ordinance, or regulation; or
- Any content or communications intended to impersonate someone else.
C. Your Responsibility for Your Content. Your Content is your sole responsibility. Under no circumstances will we be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content. AVAD further reserves the right to monitor, delete or modify any of Your Content that it deems offensive, inappropriate, advertising, illegal, off-topic or otherwise violates this Agreement.
D. Your Suggestions. We welcome your comments regarding the Site, WAVE Content, and our products. In addition to the license you grant to us, above, for Your Content, if you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials (collectively, “Suggestions”) to us in connection with or related to the Site and AVAD's products (including any related technology), whether you send such in Suggestions to us through the Site or through a separate communication channel, you grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license under any and all rights in and to the Suggestions to use, reproduce, distribute, create derivative works of, adapt, display, perform, and otherwise exploit, and to make, have made, sell, offer to sell, and import any products and services incorporating or based on, Suggestions in any manner. Please do not send us such information or materials, if you do not wish to grant us the rights set forth in this Section.
4. Your Privacy; Protection of Your Account Credentials
5. Product Listings and Purchases
In addition to any other terms and policies relating to product purchases on the Site, the following terms apply when you purchase a product on the Site:
A. Pricing; Payment. All prices are shown in U.S. dollars and are subject to change. AVAD reserves its right to expire or modify any promotion at any time. Taxes, duties, customs, shipping and handling charges are additional. All prices and taxes are subject to change or adjustment without notice. You are responsible for paying all costs associated with your purchase, and for providing accurate and current payment information. We will process your payment immediately upon our acceptance of your order. If AVAD is unable to successfully charge your credit card or payment account for fees due, or invoices are not paid in full when due, we reserve the right to restrict or suspend access to your account, or terminate your account (including, any employee accounts associated with your account). If you terminate your account for any reason or if we terminate your account due to your breach, such termination will be effective immediately, and you will be immediately billed for any un-billed fees incurred prior to the effective date of termination. You will not receive a refund for any amounts you already paid for that billing period. Further, you agree to reimburse us for any collection costs and interest for any overdue amounts.
B. Availability. All items are subject to availability and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue products without notice, even if you have already placed your order. Please note that some items may be backordered or unavailable even if the Site indicates that they are in-stock, and adding an item to your cart does not guarantee the availability of that item.
C. Shipping and Handling. You agree to pay the shipping and any handling charges shown on the Site when your order is placed. We reserve the right to increase, decrease and add or eliminate charges from time to time and without prior notice. Any shipping or handling charges may or may not reflect actual costs. All orders are shipment contracts, not destination contracts. Any shipping times shown on the Site are estimates only – actual delivery dates may vary. You are solely responsible for providing all information necessary for us to ship purchased products to you.
D. All Sales Are Final and No Refunds. All fees and charges are non-refundable, unless AVAD otherwise agreed to or states in writing.
E. Third Party Charges and Mobile Alerts. You are solely responsible for any fees or charges incurred to access the Site through an internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you or deducted from your prepaid balance by your mobile provider. You agree that WAVE is not liable in any way for any third party charges.
G. Product Recall. In the event of a product recall, we will publish a notice on the Site and/or notify you via contact information provided to us. The notice will provide instructions on how to obtain a replacement for the recalled product. It is your responsibility to check the Site or to provide us with up-to-date contact information.
6. Third Party Websites
The Site may include or provide links to other websites on the Internet that we do not control. These other websites may provide opinions, recommendations, or other information from various individuals, organizations, or companies. We are not responsible for the nature, quality, or accuracy of the content or opinions expressed on such websites and we do not investigate, monitor, or check them for quality, accuracy, or completeness. Inclusion of any linked website on the Site does not imply or express an approval or endorsement of the linked website by us or of any of the content, opinions, treatments, information, products, or services provided on these websites.
7. Disclaimer of Warranties
A. Site. EXCEPT AS WE OTHERWISE EXPRESSLY PROVIDE IN THIS AGREEMENT, THE SITE, ALL RELATED SITES, AND PRODUCTS ARE PROVIDED “AS IS”. WE AND OUR THIRD-PARTY LICENSORS DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF: (i) YOUR USE OR THE RESULTS OF YOUR USE OF THE SITE AND/OR PRODUCTS; (ii) ANY ADVICE YOU GLEAN FROM THE SITE WHETHER PROVIDED BY US OR A THIRD PARTY; OR (iii) ANY OTHER CONTENT AVAILABLE THROUGH THE SITE. WE DO NOT PROMISE THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WE AND OUR THIRD-PARTY LICENSORS HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY COMMUNICATION, OR CONTENT. WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY CONCERNING ERRORS, OMISSIONS, DELAYS, OR DEFECTS IN THE SITE OR ANY INFORMATION SUPPLIED TO YOU VIA THE SITE, OR THAT FILES AVAILABLE THROUGH SITE ARE FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT INCLUDE OR MANIFEST CONTAMINATING OR DESTRUCTIVE CHARACTERISTICS.
B. Products. NO STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS.
PRODUCTS LISTED ON THE SITE, WHETHER OFFERED DIRECTLY BY US OR BY A BUSINESS PARTNER, ARE OFFERED AND SOLD “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT ANY PRODUCT, DESCRIPTION, PHOTOGRAPH, PRICING, OR OTHER INFORMATION IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
C. Effect of Certain Laws. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. IN THE EVENT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT SHALL BE DETERMINED BY A COURT TO BE INVALID OR UNENFORCEABLE, THEN SUCH PROVISIONS SHALL BE REFORMED TO THE MAXIMUM LIMITATION PERMITTED BY APPLICABLE LAW. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED TO 90 DAYS FROM THE DATE OF PURCHASE OR ACCESS, AS APPLICABLE.
8. Limitation of Liability
A. Exclusion of Special Damages. NONE OF AVAD, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, LICENSORS, EMPLOYEES, ASSIGNEES, AND SUCCESSORS-IN-INTEREST (COLLECTIVELY, THE “WAVE PARTIES”) WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, RELATING TO THIS AGREEMENT, YOUR USE OF THE SITE, OR ANY INFORMATION OR PRODUCTS YOU OBTAIN FROM IT, OR ANY OTHER INTERACTION WITH THE SITE, AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF THE WAVE PARTIES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE WILL BE TO STOP USING THE SITE.
B. WAVE’s Maximum Liability for Any Claim. IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF THE AVAD PARTIES, FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR USE OF THE SITE OR PURCHASE OF A PRODUCT THROUGH THE SITE, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT PROVABLE DAMAGES NOT TO EXCEED ONE HUNDRED U.S. DOLLARS ($100.00 USD).
C. State Law Waiver. In entering into this release you expressly waive any protections (whether statutory or otherwise), including Section 1542 of the California Civil Code if applicable, that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
YOU AGREE TO AND SHALL PROTECT, DEFEND, INDEMNIFY, HOLD HARMLESS, AND COVENANTS NOT TO SUE DAVE AGAINST ANY AND ALL LIABILITY, LOSSES, DAMAGES, CLAIMS, DEMANDS, OBLIGATIONS, ACTIONS AND SUITS FOR LOSS, DAMAGES, NEGLIGENCE CLAIMS, OR GROSS NEGLIGENCE CLAIMS, EXEMPLARY OR PUNITIVE DAMAGES, AND ANY OTHER FORM OF COMPENSATORY CLAIMS OF ANY NATURE WHATSOEVER, WHETHER BASED IN TORT, CONTRACT, OR OTHER THEORY OF RECOVERY ARISING OUT OF OR IN CONNECTION WITH (A) YOUR USE OF THE SITE; (B) ANY AND ALL ALLEGATIONS THAT YOUR CONTENT INFRINGES A COPYRIGHT, PATENT, OR TRADEMARK, OR MISAPPROPRIATES A TRADE SECRET OF A THIRD PARTY; (C) RELATING TO ANY ACT OR OMISSION BY YOU WHICH IS A BREACH OF YOUR OBLIGATIONS UNDER THIS AGREEMENT OR APPLICABLE LAW; OR (D) OTHERWISE RELATING TO YOUR USE OF THE SITE OR PRODUCTS PURCHASED FROM THE SITE.
10. Agreement to Arbitrate
The Parties agree that the Agreement shall be performed in Toronto, Ontario, and that the laws of the the Province of Ontario shall govern the enforceability, interpretation and legal effect of this Agreement, without regard, reference to, or application of any conflicts of laws principles thereof. The Parties agree that, subject to Section 11, any disputes relating to this Agreement shall exclusively be brought in the provincial or federal courts of Ontario, Canada.
11. Digital Millenium Copyright Act Procedure
Any dispute, claim or controversy arising out of or relating to this Agreement, including any question regarding its existence, validity, interpretation, breach, or termination, whether individual, joint, or class in nature, including without limitation contract and tort disputes, will be resolved by binding arbitration administered by the American Arbitration Association under its current Commercial Arbitration Rules at the time the arbitration is filed, which are deemed to be incorporated by reference in this clause. However, no arbitrator shall have the right or power to enjoin or restrain any act of any party.
The tribunal will consist of a single arbitrator, listed on the American Arbitration Association’s National Roster, and mutually selected by the parties. In the event the parties cannot agree to a single arbitrator, the parties will request and empower the American Arbitration Association to appoint the sole arbitrator in accordance with Rule 12 of the American Arbitration Association’s Commercial Arbitration Rules and Mediation Procedures for appointing arbitrators. The location of the arbitration will be Houston, Texas. The interpretation and application of this arbitration clause, as well as the conduct of the arbitral proceedings, will be governed by the laws of the state of Texas. The Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration provision. The arbitration will be held in English. The parties agree to equally split all arbitration costs and expenses pending the arbitrator’s final award, including but not limited to arbitrator compensation or expenses and reporting services.
In the event that any dispute, claim or controversy arising out of or relating to this Agreement, including any question regarding its existence, validity, interpretation, breach, or termination, whether individual, joint, or class in nature, including without limitation contract and tort disputes, does not exceed $25,000, exclusive of interest, attorneys’ fees and arbitration costs, the dispute shall be resolved by submission of documents, unless the arbitrator determines that an oral hearing is necessary. Where cases are resolved by submission of documents, the parties will apply the American Arbitration Association’s procedures for the resolution of disputes through document submission, memorialized in Rule E-6 of the American Arbitration Association’s Commercial Arbitration Rules and Mediation Procedures for Expedited Procedures.
Any award rendered by the arbitrators will be binding from the day it is made, and the parties hereby waive any right to refer any question of law and right of appeal on the law or the merits to any court to the fullest extent allowed by law. The award shall be in writing and shall specify the factual and legal bases for the award. Judgment upon any award rendered by any arbitrator may be entered in any court having jurisdiction.
Nothing in this arbitration provision shall preclude any party from seeking equitable relief from a court of competent jurisdiction. No act of seeking equitable relief shall be considered a waiver of or prohibited by this arbitration provision, including without limitation, obtaining a temporary restraining order or other injunctive relief, invoking a power of sale, obtaining a writ of attachment or imposition of a receiver, or exercising any rights relating to personal property, including taking or disposing of such property with or without judicial process pursuant to article 9 of the Uniform Commercial Code.
EACH PARTY WAIVES THEIR RIGHT TO A TRIAL BY JURY TO RESOLVE ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT
12. Miscellaneous Terms
A. Complete Agreement. This Agreement constitutes the entire understanding and agreement between you and AVAD relating to your use of, and access to, this Site and supersedes any prior or contemporaneous agreements or representations. There are no representations, agreements, arrangements or understandings, oral or written, concerning the subject matter hereof between and among the Parties that are not fully expressed or incorporated by reference herein.
B. Severability. The Parties acknowledge and understand that, if any term of this Agreement shall be determined by a court to be illegal, invalid, unconscionable or unenforceable, the remaining provisions will remain effective and legally binding, and the illegal, invalid, unconscionable or unenforceable term shall be deemed not to be a part of this Agreement. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible.
C. No Waivers. No waiver of any of the terms of this Agreement shall be valid unless in writing and signed by all Parties to this Agreement. The waiver by any Party hereto of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party, nor shall any waiver operate or be construed as a rescission of this Agreement. Any failure or forbearance by either Party to exercise any right or remedy with respect to enforcement of this Agreement or any instrument executed in connection herewith shall not be construed as a waiver of any of such Party's rights or remedies, nor shall such failure or forbearance operate to modify this Agreement or such instruments in the absence of a writing as provided above.
D. No Assignments and Transfers. No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without AVAD's express prior written consent and in its sole discretion.
E. No Third Party Beneficiaries. Nothing in this Agreement will confer upon any third-party any rights, remedies, obligations, or liabilities whatsoever.
F. Notices. You shall provide any notices to us under this Agreement by e-mail or mail using the contact information provided below. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing AVAD with up-to-date contact information, which you may do by updating your account information through the Site or by sending a message to us via the contact information provided below. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.
13. Contact Us
If you have any questions or need to contact us for any reason relating to this Agreement, please e-mail firstname.lastname@example.org.
You may also send us mail at the following address:
AVAD Canada Ltd.
5655 Kennedy Road, Unit 4
Mississauga, ON L4Z 3E1
Last Updated: 18 August 2020