BY ACCESSING, USING, VIEWING, TRANSMITTING, CACHING OR STORING THE SITE OR ANY OF THE SERVICES, FUNCTIONS OR CONTENTS AVAILABLE ON OR THROUGH THE SITE, YOU AGREE TO BE BOUND TO THESE TERMS, CONDITIONS, AND NOTICES IN THE SITE (“AGREEMENT”) WITHOUT MODIFICATION. IF YOU DO NOT AGREE, DO NOT USE THE SITE.
These Terms govern your use of the Site and related Services and supersede any prior agreement between you and Avery. We may periodically modify the Terms without notice. Changes to the Terms will be effective (a) 30 days after we provide you with email notice of the changes or (b) the date on which they are posted on the Site. If you do not agree to any change to the Terms, you must cease use of the Site and Services. Your continued access and use of any of the Site and Services signifies your acceptance of the Terms as modified.
Avery may terminate your use of the Sites and Services if you do not comply with these Terms. ANY DISPUTE BETWEEN YOU AND Avery MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION, as more fully described below.
Use of Site
The Sites and the Services are available only to individuals who can form legally binding contracts under applicable law, and thus, are not available to minors. By using any of the Sites, you represent that you are of sufficient legal age to use the Sites and to create binding legal obligations for any liability you may incur as a result of the use of the Sites.
The Sites provide you with the ability to access various Services and content, including information about our Properties, learn about travel opportunities and upcoming events in the cities where the Properties are located, and connect with other users through our linked social sites. From the Sites you may also subscribe to our marketing emails, share your own travel photos and stories, and buy our gift certificates or gift cards. All of the Services and content accessible through the Sites are for your personal, non- commercial use only and your access to and use of them are subject to these Terms.
Some of the features of the Sites require you to create a user profile or user account and some may require you to pay fee. We will notify you when this is required. In addition, when you access the Sites through a mobile network, your mobile network provider’s messaging, data and other fees may apply.
Third Party Products / Services and Websites
In addition to the content and Services we provide, the Sites may provide you with the ability to access products, content, and services offered by or maintained by third parties. In some Sites, these may be accessible directly through the Sites. In other Sites, access may be via links from the Sites to third party websites. Regardless, we are not responsible for the products, content or services available from third parties – even if they are provided through the Sites – or for how third-party sites are managed or the terms applicable to your use of them. Your access to and use of these third-party materials and websites are governed by the terms established by their owners/operators. You are responsible for reading those terms before you access or use the third-party products or websites. We accept no responsibility for any third-party materials or websites or for any loss or damage that may arise from your use of them. If you decide to access or use any third-party materials or websites, you do so exclusively at your own responsibility and risk and you waive and release Avery from any and all claims related to any third- party website.
Proprietary Rights and License
All of the products, content and Services available through the Sites are protected by copyright owned by Avery or its licensors or licensees. This includes all products, product descriptions, videos, text, graphics, logos, images, photographs, artwork, derivative works, software, and any other material or information published on or used in connection with the Sites (collectively, the “Site Content”). Similarly, all trademarks, service marks, trade names, trade dress and other indicia identifying the Sites, Avery, the Properties, or the products or Services available through the Sites (“Marks”) are owned by Avery or it licensors or licensees. You do not obtain any rights in any of the products, content, or services available on the Sites or other Site Content or the Marks by your use of the Sites or otherwise. However, so long as you comply with these Terms, you do receive a limited license to use them as provided below. All rights in the products, content or Services and other Site Content and Marks are reserved to their respective owners.
Subject to these Terms, Avery grants you a personal, non-transferable, and non-exclusive limited license to access and use the Sites for your own personal, non-commercial use. This license includes the right to (a) copy and download materials from the Sites as needed for you to view them through your browser and (b) print screen shots of products, product descriptions, and similar materials for your personal reference use, provided you do not delete or modify any copyright or other proprietary notices. We may terminate this license upon notice to you, in which case you must cease all use of the licensed materials. Except as otherwise expressly permitted, you are not permitted to make any other use of the Sites or the Site Content.
In addition to the above license, some content and Services may have their own license terms. For example, apps you may need to download and install to use Instagram® or Facebook® will all have their own license terms which are in addition to these Terms.
As above, the license we grant to you for the content and Services is limited. It is also subject to certain restrictions. Unless we give you express written authority, you may not (a) resell any of the products, content or Services or any other Site Content (or any portion thereof) on the Sites; (b) distribute, publicly perform, or publicly display any of the above; or (c) modify or make any derivative uses of the Sites or the Site Content (or any portion thereof).
In addition, under no circumstances are you permitted to:
• use any data mining, scraper, spider robots, or similar data gathering or extraction methods to access, monitor, or copy any Site Content or other content or information used by the Sites;
• violate the restrictions in any robot exclusion headers on the Sites or circumvent any other measures used to prevent or limit access to the Sites;
• take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
• engage in deep-linking to any portion of the Sites for any purpose;
• “frame”, “mirror” or otherwise incorporate any part of the Sites into any other web site;
• use the Sites or the Site Content other than for their intended purpose;
• post content to the Sites in violation of the Terms; or
• violate any of guidelines applicable to posting images or content to our blogs or user photo pages.
Any use of the Sites or Site Content other than as expressly permitted by these Terms will constitute a violation of the Terms and may constitute infringement of our intellectual property and other proprietary rights and a violation of applicable law.
Creating an Account
Some of the Services and features available through the Sites require you to set up an account (“User Account”) to access them. When you set up a User Account, you will be asked to provide certain information about yourself, including your name, email address, and other information. You will also be asked to select a unique password for your Account. You may use your Account to update, revise or delete your Registration Data (as defined below), purchase Avery or the Properties products, register for promotions, and otherwise manage your use of the Services that require a User Account. By registering for an Account, you represent and agree (a) that you are at least 18 years of age; (b) that the information you provide during the registration process is accurate, current and complete (“Registration Data”); (c) not to impersonate or misrepresent your affiliation with any person or entity or use another person’s username, password or other account information, or provide false details for a parent or guardian; (d) to maintain the security of your Account password and identification; (e) to maintain and promptly update the Registration Data, and any other information you provide to us, to keep it accurate and current; (f) to accept all risks of unauthorized access to the Registration Data and any other information you provide to us; and (g) to notify us immediately of any unauthorized use of your account or any other breach of security by emailing us at info@Averyhospitality.com.
We may suspend or terminate your Account at any time, for any reason, and without advance notice at our sole discretion and without any liability to you. If we suspend or terminate your Account or this Agreement, you understand and agree that (except as otherwise expressly provided) you shall receive no refund or exchange for any unused subscription, any license or subscription fees, any content or data associated with your Account, or for anything else.
You can make reservations for any of the Properties through the Sites or by calling the property directly. Reservations from the Sites are handled by various third-party reservation companies (“Booking Company”), although you may make reservations through aggregators like Booking.com, Expedia, Orbitz, or Kayak (“Aggregators”). If you use the Booking Company or an Aggregator to book reservations at the Properties, additional terms may apply, and you are responsible for reviewing them before you make a reservation.
For information on cancellation and booking related policies, please refer to the terms and conditions on the applicable Property website and from the Booking Company.
Social and Community Features
As to any information or content that you submit or post to the Sites, you represent and warrant that you have the right and authorization to do so without the need for additional permissions or consent of any third party. In addition to any other rules, guidelines or regulations that we may post in connection with a particular service or feature, you agree that you shall not do any of the following in or through the Sites:
• Upload, post, transmit (via e-mail, e-card, chat or otherwise), or otherwise make available any content, language or materials that are fraudulent, unlawful, defamatory, obscene, pornographic, vulgar, offensive, profane, sexually explicit, indecent, threatening, abusive, violent, illegal, rude, harassing, or otherwise improper, or that violates any applicable domestic or international law, or government regulation (including, without limitation, those of any city, municipality, state, foreign country, any securities exchange, the S.E.C., and the F.C.C.) or that contains software viruses, worms, or any other computer code or portions of code, programs, or files designed to interfere with, interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications or other equipment or to cause a security breach of such software, hardware, or other equipment;
• Upload, post, transmit (via e-mail, e-card, chat or otherwise), or otherwise make available any unsolicited or unauthorized advertising, promotional materials, spam, junk mail, chain letters, pyramid schemes, or any other form of commercial or political solicitation, except in those areas of the Sites that we may expressly designate for such purposes;
• Engage in or run raffles, lotteries, contests, sweepstakes, or chain letters or other pyramid schemes;
• Disguise the origin of any content uploaded to, posted on, transmitted, or otherwise made available on or through the Sites, including, without limitation, by forging headers, providing inaccurate intellectual property notices, or otherwise manipulating identifiers;
• Modify, obscure, or eliminate Avery frame set, banner advertising, or any other content or information that originates from the Sites;
• Promote, encourage or provide instructions or information about how to engage in illegal conduct or commit illegal activities, promote discrimination against any race, origin, gender or religious group, promote physical harm or bodily injury, or promote any illegal act of cruelty to animals;
• Collect or harvest screen names, collect or store personal data about other users, or solicit or attempt to discover a user’s password, screen name, or other registration information without the user’s express knowledge and consent;
• Interfere with or disrupt the Sites or any services or features thereon, or servers or networks connected to the Sites, or violate any requirements, policies, regulations, or procedures of networks connected to the Sites
• Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Sites are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
• Provide links to websites, networks, content, or resources that themselves violate the letter or spirit of the Terms, or promote the violation of these Terms or make available tools or information whose primary use constitutes a violation of the letter or spirit of these Terms;
• Use personal features or areas of the Sites as storage for remote loading or as a door or signpost to another web page, whether inside or outside the Sites; or
• Interfere with the operation or design of any elements that we may add to users’ pages or other personal features or areas of the Sites, including, without limitation, toolbars, advertising banners, watermarks, logos, or other messages of any kind.
We reserve the right, in our sole discretion, to adopt and post additional rules in any social or community area and to condition access to any such community features by any individual or group in accordance with age, geographic, or other criteria, to deny or restrict access by any individual or group who fails to meet that criteria or by anyone who fails to comply with our criteria or rules at any time, and to change or modify the criteria or rules at any time. We also reserve the right (but do not assume any obligation), in our sole discretion, to delete any postings, messages or other content on the Sites that violate these Terms and to deny access by any user to the Sites.
NOTICE: The information and content you submit through a social feature, may be recorded and stored in multiple places, both on the Sites and elsewhere on the Internet, which are likely to be accessible for a long time, and you have no control over who will read them. If you elect to participate in a feature that enables you to correspond with other participants of the service, some of your account information and other materials that you provide, such as your username, may be shared with other participants. You alone are responsible for the content and consequences of any of your messages or other materials submitted to the Sites or through these social features. Because of the anonymity provided by usernames, you may not know at all times with whom you are interacting through these features. It is therefore important that you are careful and selective about the information that you disclose about yourself and others, and in particular, you should not disclose any sensitive, personal, proprietary or confidential information in your messages, comments or posts to our public or community features. ALSO, WHEN USING SUCH FEATURES, DO NOT DISCLOSE YOUR PERSONAL INFORMATION (SUCH AS YOUR REAL NAME, PHONE NUMBER, ADDRESS OR OTHER INFORMATION THAT WOULD ENABLE OTHERS TO IDENTIFY OR LOCATE YOU, EITHER ONLINE OR OFFLINE).
While using the social and community features on the Sites, you may be exposed to content of other users with which you may disagree or that you may find offensive or objectionable, or that is inaccurate, misleading, or illegal. You expressly assume and agree to bear any, and all risks associated with the use of any such content and your exposure to any such content, including any reliance by you on the accuracy, integrity, usefulness, or completeness of such content. Avery will not be liable, and disclaims all liability, in connection with any harm, loss, or damages of any amount or type arising from your access to, or use of, the services or any content posted to, downloaded from, or otherwise made available through the Sites, whether that content is posted to, downloaded from, or otherwise made available through the Sites by Avery, you, another user, or any other third party.
We encourage you to report any suspected violations of these Terms or any other additional rules posted in connection with such activity or service, in particular as they relate to inappropriate behavior or activity in our chat services and other community features. You may contact us to report violations at info@Averyhospitality.com.
Avery reserves the right, but not the obligation, to investigate and take appropriate legal action in its sole discretion against anyone who it believes violates these Terms, including without limitation, removing the offending communication in whole or in part from the Sites, suspending or terminating the membership of such violators and/or suspending or terminating their right to use and access the Sites.
User Generated Content
Avery allows you to submit, upload or otherwise make available text, images, audio, video, competition entries or other content (“User Generated Content”) through the Sites. All submissions must comply with the rules above for Social and Community Features as well as the “Content Submission Terms” we post on the Sites.
Unless otherwise stated, when you share User Generated Content, we do not claim ownership of it. However, by doing so you grant Avery license to use it as provided in the Content Submission Terms.
You represent and warrant that your User Generated Content conforms to these Terms and that you own or have the necessary rights and permissions, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by these terms. You agree to indemnify and hold Avery and our subsidiary and affiliated companies, and each of their respective employees and officers, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against us by any third party arising out of or in connection with our use and exploitation of your User Generated Content. You also agree not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement not to enforce from others who may possess such rights.
To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of any Avery copyrighted works, we grant you a non- exclusive license to create a derivative work using our copyrighted works as required for the purpose of creating the materials, provided that such license shall be conditioned upon your assignment to Avery of all rights in the work you create. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
Communications with Avery
We like to hear from you. However, in your communications with us, please keep in mind that, unless we specifically request them, Avery does not solicit or wish to receive any confidential, secret or proprietary information or other material from you through the Sites, by e-mail or in any other way, and we do not accept or consider any ideas or suggestions relating to products, services, marketing plans, or any other matters.
Any such submissions, materials, content, information, creative works, demos, ideas, questions, comments, answers, suggestions, concepts, methods, systems, designs, plans, techniques or the like submitted to us via the Sites, mail, e-mail or otherwise, or transmitted, posted, or uploaded by you to the Sites (collectively, “Your Submissions”) will be treated as non-confidential and nonproprietary, and we will not assume any responsibility, obligation, or liability for them or for our receipt or non-receipt of them. We may delete or destroy Your Submissions at any time. Our receipt of Your Submissions is not an admission by us of their novelty, priority, or originality, and it does not impair our right to contest existing or future intellectual property rights relating to Your Submissions.
By submitting or sending Your Submissions to Avery, you grant us a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, and fully transferable, assignable and sub-licensable right and license to copy, reproduce, distribute, publish, transmit, modify, adapt, translate, display, distribute, sell, license, publicly perform, prepare derivative works based upon, and otherwise use or exploit Your Submissions throughout the world in any and all media. You represent and warrant that: (a) you have the right and authorization to make the foregoing grant without the consent of any third party, and (b) Your Submissions are accurate and, as permitted to be used by us under these Terms, do not and will not infringe any right of any third party.
By creating a User Account, subscribing to one of our Services, entering a promotion or sending e-mail to us, you consent to receive email communications from us. Furthermore, you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically, via the Sites or otherwise, satisfy any legal requirement that such communications be in writing.
Avery reserves the right, without any limitation whatsoever, to: (a) investigate any suspected breaches of security for the Sites or its information technology or other systems or networks; (b) investigate any suspected breaches of these Terms or violations of any additional terms, conditions and rules posted in connection with a particular service or feature on the Sites; (c) involve and cooperate with law enforcement authorities in investigating any such matters; (d) prosecute violators of these Terms to the full extent of the law; (e) delete or modify any content on the Sites, including any materials or items you may have acquired through your use of the Sites; and (f) discontinue any of the Sites or terminate your access to them at any time, without notice, for any reason and without any obligation to you whatsoever.
Avery may collect certain information in order to operate the Sites and to fulfill your requests or enable participation in certain online activities. We will also receive and store information you provide to us to complete surveys, request additional information regarding our Services, make a reservation, participate in a sweepstakes or other incentives, post information on our Sites, make purchases online, set up accounts, sign up to receive our newsletters or other e-mail communications, communicate by e- mail, communicate with us through a social media platforms or by telephone or physical mail, use our Services, or otherwise interact with us. Such information may include Personal Information. You can choose not to provide certain information, but then you might not be able to participate in our surveys or incentives, purchase products, or take advantage of certain features or Services available through the Sites.
We have adopted reasonable security measures to protect against the loss, misuse, and alteration of Personal Information under our control. We use Secure Sockets Layer technology to protect highly sensitive information such as credit card data during transmission and adopt careful internal procedures to safeguard this information in our system. Nevertheless, we cannot guarantee complete security of Personal Information.
Notice to International Visitors
The Sites and the servers that make them available are located in the United States of America and are not directed to use by residents of other counties. If you reside in another country, these Terms may conflict with the laws of your country. In the event of such a conflict, these Terms will govern to the extent that they are valid and enforceable under applicable United States laws.
Avery makes no representation that the Sites are appropriate or available for use beyond the United States of America. If you use the Sites from other locations, you are responsible for compliance with applicable local laws.
Banners, Advertisements and Promotions
Avery reserves the right to post banners, advertisements, promotions, and similar content throughout the Sites. We may also allow advertisers and corporate partners to post content on the Sites. This content may be targeted to users based on information they provide through use of the Sites or other information. We do not control, endorse or adopt any such activity and we make no representation or warranties of any kind regarding it. Any interactions, correspondence, and business dealings that you have with any advertisers and other third parties found on or through the Sites (including via the linked third-party sites) are solely between you and the third party (including, without limitation, issues related to the content of third party advertisements, payments, delivery of goods, warranties, and the like). We disclaim all liability in connection with them.
Links to Other Sites
Contests and Promotions
From time-to-time, Avery provides promotions through the Sites. Competitions that you enter through the Sites may have supplemental rules and conditions, but the following general rules apply unless otherwise provided.
Your competition entry is User Generated Content and subject to all provisions of these Terms. We may disqualify entries that are late, misdirected, incomplete, corrupted, lost, illegible or invalid or where appropriate parental consent was not provided. Competition entries are limited to one per person and entries via agents or third parties or the use of multiple identities are not permitted. Use of automated entries, votes or other programs is prohibited and all such entries (or votes) will be disqualified.
We reserve the right to modify, suspend, cancel or terminate a competition or extend or resume the entry period or disqualify any participant or entry at any time without giving advance notice.
To enter a competition, you must have a valid User Account with current contact information. No purchase is necessary to enter a competition and a purchase will not improve your chances of winning. Competitions are not open to our employees (or their immediate families) or anyone else professionally associated with the competition. If you are under age 18 (or the age of majority under applicable law) and the competition is open to you, we may need your parent or guardian’s consent before we can accept your entry. We reserve the right to request proof of identity or to verify eligibility conditions and potential winning entries, and to award any prize to a winner in person. Competitions are void where prohibited or restricted by law. Potential winners who are residents in jurisdictions where competitions require an element of skill may be required to answer a mathematical test in order to be eligible to win a prize.
Unless specifically provided in the applicable contest rules, no cash or alternative prizes are available, except that Avery reserves the right to substitute a similar prize of equal or greater value. Prizes cannot be transferred or sold by winners. All prizes will be awarded provided a sufficient number of eligible entries are received and prizes are validly claimed by the date provided. Unless otherwise disclosed in the prize description prior to entry, winners are responsible for all costs and expenses associated with claiming a prize. All taxes are solely the responsibility of each winner, although we reserve the right to withhold applicable taxes and each winner agrees to complete any required tax forms.
Your acceptance of a prize constitutes agreement to participate in reasonable publicity related to the competition and grants Avery an unconditional right to us to use your name, town or city and state, province or country, likeness, prize information and statements by you about the competition for publicity, advertising and promotional purposes and to comply with applicable law and regulations, all without additional permission or compensation. As a condition of receiving a prize, winners (or their parents or guardians) may be required to sign and return an affidavit of eligibility, liability release and publicity release.
Notice and Procedure for Making Claims of Copyright Infringement
We respect the intellectual property rights of others. If you think that your work has been copied in a manner that constitutes copyright infringement, please provide our copyright agent with the following information:
1. a physical or electronic signature of the person authorized to act on behalf of the owner of the applicable copyright;
2. a description of the copyrighted work that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the Site;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. a statement by you that your notice is accurate and, under penalty of perjury that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Avery’s copyright agent can be reached as follows:
1010 W Main St, Boise, ID, 83702
We attempt to ensure the descriptions, products and Services, and other information on the Site are as accurate and complete as possible. However, we do not warrant that any information or content obtained on or through the Site is accurate, complete or error-free. We may modify the Site, in whole or in part, at any time and without prior notice.
WE DO NOT WARRANT THAT ANY CONTENT POSTED ON OR ACCESSED THROUGH THE SITE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. NEITHER WE, NOR OUR SUPPLIERS, NOR THE PROPERTY OWNERS, WARRANT THAT THE SITE WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS OR USE OF THE SITE OR SERVICES OFFERED THROUGH THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, NOR DO WE MAKE ANY WARRANTY WHATSOEVER REGARDING THE QUALITY OF ANY EXPERIENCE, PRODUCTS, SERVICES, INFORMATION OR ANY OTHER MATERIAL YOU OBTAIN THROUGH OR IN CONNECTION WITH THE SITE. ALL SERVICES AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NONINFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.) WE MAY MODIFY, DELETE, OR SUPPLEMENT THE CONTENT ON THE SITE, IN WHOLE OR IN PART, AT ANY TIME AND WITHOUT NOTICE.
Limitation of Liability
NEITHER WE, NOR OUR SUPPLIERS, NOR THE PROPERTY OWNERS, SHALL HAVE ANY LIABILITY FOR ANY LOSS OR DAMAGE WHATSOEVER, DIRECT OR INDIRECT, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA AND THE LIKE) ARISING OUT OF YOUR USE OF OR INABILITY TO USE OR ACCESS THE SITE OR ANY CONTENT PROVIDED ON THE SITE; ANY DELAY IN USE OF OR ACCESS TO THE SITE OR CONTENT PROVIDED ON THE SITE; ANY CLAIM ARISING FROM OR RELATING TO ERRORS, OMISSIONS OR INACCURACIES IN THE CONTENT PROVIDED ON OR THROUGH THE SITE; AND/OR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR IN RELATION TO THE SITE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IT IS YOUR EXCLUSIVE RESPONSIBILITY TO EVALUATE ALL CONTENT PROVIDED ON THE SITE FOR ACCURACY, COMPLETENESS AND USEFULNESS.
WITHOUT WAIVING THE EXCLUSIVE GOVERNING LAW PROVISION SET FORTH BELOW, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. THEREFORE, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THE LIMITATION OF LIABILITY SET FORTH ABOVE SHALL APPLY TO EVERY FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, AND SHALL SURVIVE ANY BREACH OF THE TERMS OR ANY AGREEMENT, OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THE TERMS OR AN AGREEMENT OR ANY EXCLUSIVE REMEDY. NOTWITHSTANDING ANYTHING ELSE HEREIN, IN NO EVENT SHALL OUR LIABILITY TO YOU EXCEED $50.00.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
Without limiting any provision in the previous section, Avery shall not be liable or be deemed to be in breach of these Terms for any failure to perform, or delay in performing, any of our obligations under this Agreement if the delay or failure was due to any cause beyond our reasonable control. Causes beyond our reasonable control shall include, but not be limited to, acts of God, flood, explosion, natural catastrophe, storms, fire or accident; war or threat of war, blockade, sabotage, insurrection, terrorism, riot or civil disturbance; acts, restrictions, regulations, laws, prohibitions or measures of any kind on the part of any governmental, international, federal, state or local authority; import or export regulations or embargoes; strikes or other industrial actions or trade disputes (whether involving employees of Avery or a third party); problems in obtaining raw materials, labor, transportation, fuel, parts or machinery; and power failure or breakdown in machinery, including computer or other equipment failure. In the event of any such default or delay, the date for performance shall be extended for a period equal to the period during which such aforesaid cause, circumstance or contingency remains in effect.
You agree that you are personally responsible for your use of the Sites and its contents, and further agree to indemnify, defend and hold harmless us, our third party service providers, and the Property owners from and against any loss, damage, expense or liability of any kind (including attorneys’ fees and costs) resulting from your violation of any the Terms or your use of or access to the Site, your communications with us and/or your violation of the rights of any third party.
Binding Arbitration; Class Action Waiver
Except for matters relating to the enforcement of Avery’s intellectual property rights, all disputes, controversies, or claims arising out of or relating in any way to the Sites, your participation in any of the features available through them and/or your purchase of any products, content or services shall be finally resolved by as provided below. YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE WITH AVERY BEFORE A JUDGE OR JURY. The arbitral tribunal shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of this agreement to arbitrate. You and Avery agree to arbitrate solely on an individual basis and expressly waive the ability to participate in a class or representative proceeding, including any class arbitration or representative arbitration proceedings. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the agreement to arbitrate will remain in force. To the extent that you or Avery opts out of arbitration following the procedure set forth below, or if this arbitration agreement is found inapplicable to a dispute between us, you and Avery expressly waive the ability to participate in any class or representative litigation.
If a dispute arises that is subject to arbitration, you must give us written notice and an opportunity to resolve it. Your notice must include your name, your address, a written description of the dispute, and a specific description of the relief you are seeking. If we do not resolve our dispute within forty-five (45) days after receiving your notice, you may pursue arbitration as below by sending a written demand for arbitration to Avery at the address set forth above in “Copyright Claims.”
To begin an arbitration proceeding, you may send a letter requesting arbitration and describing your claim to our registered agent: Avery Hospitality, Inc., Attn: Legal Department, Address. You agree that the arbitration will be conducted by either the American Arbitration Association (“AAA”), adr.org, 1.800.778.7879, or the Judicial Arbitration and Mediation Services (“JAMS”), jamsadr.com, 1.800.352.5267. You can contact AAA or JAMS to find out more information on how to commence an arbitration proceeding. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s or JAMS’ applicable rules. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in a mutually agreed location.
Any dispute or claim that is subject to arbitration but is not resolved by the pre-arbitration dispute process, shall be submitted to binding arbitration. The disputes and claims subject to arbitration will be resolved by a single arbitrator mutually agreed upon by you and Avery. If we cannot agree on an arbitrator, then an arbitrator shall be selected pursuant to Rule 12 of the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator shall be bound by and shall strictly enforce these Terms and any other applicable agreement between us, and may not limit, expand, or otherwise modify any such terms. The arbitrator may award any relief that a court of law could, applying the limitations of liability contained in these Terms. The arbitrator may award injunctive relief if permitted by law – but the injunctive relief awarded by the arbitrator may not extend beyond our dealings with one another. Any arbitration will be held in Boise, Idaho, unless otherwise agreed upon by you and Avery in writing. You and Avery will each bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator shall award costs and fees to the prevailing party if it is determined that the other party submitted a claim with no reasonable basis or filed any claim in bad faith.
You may opt out of the agreement to arbitrate by providing us with written notice of your intention to do so at the address above no later than 60 days after initial acceptance of these Terms. The procedure spelled out herein is the only way to opt out of arbitration, and any attempts to opt out after the deadline set forth herein will be ineffective. Notwithstanding your decision to opt out of arbitration, you still waive the ability to participate in any class or representative litigation.
Because the Sites and these Terms concern interstate commerce, the Federal Arbitration Act governs the interpretation and enforcement of the arbitration rules (notwithstanding the application of Washington law to any underlying claims as provided above). You agree the arbitration and other provisions of this section “Binding Arbitration; Class Action Waiver” survives any termination of these Terms.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA OR JAMS RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. ANY DEMAND FOR ARBITRATION MUST BE FILED WITHIN ONE (1) YEAR OF THE TIME THE CAUSE OF ACTION OCCURRED, OR THE CAUSE OF ACTION SHALL BE FOREVER BARRED.
This Site (and the Property websites) are controlled and operated from Boise, ID U.S.A. Neither we, nor the Property owners, nor any service providers make any representation that any content on the site (or the Property websites), products or services offered or accessed on or through them are appropriate or available for use in other locations. If you access the Site or a Property website from a location outside the United States you do so on your own initiative and are responsible for compliance with all applicable laws of your jurisdiction.
You agree that the Terms, as they may be amended from time to time, set forth your and our entire understanding as to the subject matter of the Terms.
Nothing contained in these Terms shall be deemed to constitute a partnership or joint venture, or constitute an employment or agency relationship, between you and us.
If any provision of the Terms is found to be invalid or unenforceable, the remainder of the Terms shall remain in full force and effect, and all Terms shall be enforced to the fullest extent permitted by law.
No waiver or failure of ours to assert our rights under any provision of the Terms shall be valid unless in writing and signed by an officer of Avery. We may assign our rights and duties under the Terms, in whole or in part, to any party without notice to you. You may not assign your rights and duties, in whole or in part, without our prior written consent.
All rights not expressly granted herein are reserved to us. Questions about these Terms or the Site? Please contact us at the following address: The Avery, Inc., 1010 W. Main St., Boise, ID, 83702
Avery Hospitality is committed to furthering the accessibility and usability of its website, Averyhospitality.com. Avery Hospitality will be using the relevant portions of the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0 AA”) to guide its compliance. The relevant portions of WCAG 2.0 AA will serve as our primary web accessibility standard, though other standards may also be used to provide accessibility to the extent required by the Americans with Disabilities Act (“ADA”). Our website will be tested on a periodic basis in accordance with these standards in an effort to ensure accessibility. Some of the testing methods used may include assistive technology such as screen readers and screen magnifiers.
Please be aware that our efforts are ongoing. If, at any time, you have specific questions or concerns about the accessibility of any particular webpage on Averyhospitality.com or any of our other destination websites, please contact us at firstname.lastname@example.org. If you encounter an accessibility issue, please be sure to specify the particular web page in your email, and we will make all reasonable efforts to make that page accessible for you. If you prefer to call someone to address your concerns, please reach out to us at 206.239.1800.