ONLINE TERMS AND CONDITIONS
Updated February 17, 2022
Welcome and thank you for your interest in AVLancer, Inc. We connect audio-visual companies with freelance contractors in an effort to provide an administrative interface to connect event producers, project managers, and audio-visual firms with such freelance professionals.
These Online Terms and Conditions reflect your agreement with us and apply to all our Services, including without limitation and by way of example only:
· your proper and authorized use of our Site, including all pages related to https://www.avlancer.com
· any audio-visual work (“AV Work”) you receive from Freelancers
· any agreement we make with you to connect you with Freelancers for your audio-visual staffing
requests (i.e., your Customer Agreement)
· your access to our cloud-based software as a service (SAAS), downloadable software, and mobile
applications, if any
· your access to support services, if any
· your participation in any survey or contest
· any User Content you may provide to us
· any seminars, programs, or podcasts we provide
· any invoicing for Freelancer AV work, and
· your purchase of any of our merchandise.
- Free Trials
- Changes to Terms
- Accounts and Registration
- Bugs, Errors and Updates.
- User Content
- Limited License to AVLancer: User Content
- Release: User Content
- Audit | Monitoring
- Linked Accounts
- Your Representations and Warranties
- Assignment of Improvements
- Refusal to Provide Services
- Intellectual Property Violations
- Relief for Breach
- Business Partners
- Links | Third-Party Services
- Representation of Condition
- Electronic Communications
- Disclaimers and Limitations on Liability
- Choice of Law | Applicable Laws
- General Terms
- Appendix A: Software License
1. Free Trials.
2. Changes to Terms.
We reserve the right to change or cancel our Terms, our Services, and our other policies and agreements at any time in our discretion. The most current version of our Terms is available on our Site and shall replace all previous versions. Any revision will have a new “Updated on” date at the beginning of these Terms. Your only recourse, if you disagree with our Terms, is to discontinue your access and/or use of our Services. Where appropriate, you will be notified of changes to these Terms by e-mail or when you next access our Site or Services. The new Terms may be displayed on-screen, and you may be required to read and accept the updated Terms, however, your use of our Services confirms your acceptance of such Terms.
The terms most protective of AVLancer shall control in the event of a conflict between these Terms and any agreement you execute with us.
We will use industry-standard procedures to provide our Services. Please consult our Disclaimers.
We make no promise to continue providing Services and may cease to offer, support, maintain, or update our Services in our sole and exclusive discretion, which shall not be a breach of these Terms or any other agreement we may have with you.
Our Site is merely informational in nature. We may make changes to the Site at any time without Notice to you, however, we make no commitment to update the Site for any reason. In addition, Information on the Site or our Services may be out of date, inaccurate, incomplete, or contain errors or omissions. Any changes or failure to make updates shall not be considered evidence of improper action, a breach of these Terms, or grounds for an actionable Claim against us. Further, except for these Terms, the Site shall not form the basis of, or be relied upon in connection with, any contract or commitment whatsoever. Information published on the Site may refer to Services that are not available in your location. In addition, we are not responsible for any User Content displayed on our Site, whatsoever.
5. Accounts and Registration.
Subject to these Terms, any other agreements we may require, and any fees we charge to use our Services, we grant you a terminable, worldwide, non-exclusive license to use our Services solely for their intended purposes.
In the event you are making use of AVLancer™ cloud-based software, you must accept all license terms detailed in Appendix A, which is part of these Terms, before being granted access to and the right to use such software.
a. We retain all rights, title, and interest to Intellectual Property contained in our Services. Any unauthorized use of our Services in whole or in part may violate Intellectual Property and other applicable Laws.
b. We do not grant to you any further license to access, copy, reproduce, modify, prepare, or create Derivative Works of, publicly display, publicly perform, sublicense, transfer, assign exploit, or distribute our Services, except that you may freely use your own User Content, if any, and your own photographic stills, audio, video, or audio-video media. Customer is the owner of all AV Work created at a Customer Event, even when that footage is created by a Freelancer, unless otherwise agreed in writing and signed by all involved parties.
c. For clarity, you agree, warrant, and represent that you will not, without our prior written permission,
1) Use any of our Services except as permitted in these Terms or in any other signed agreement between us,
2) Copy, modify, improve, revise, or create Derivative Works to our Intellectual Property without our prior written permission,
3) Reverse assemble, compile, decompile, disassemble, re-engineer, or reverse compile our Intellectual Property in whole or in part,
4) Sub-license or redistribute any of our Services without our prior written permission,
5) Remove any Intellectual Property ownership or management information (“Legends”) from our Services, including, without limitation, patent, trademark, copyright, and/or other restricted rights notices incorporated into our Services,
6) Use our Services for any illegal purpose whatsoever, or in violation of applicable Laws,
7) Provide, post, upload, or distribute any User Content or property that violates a third party’s legal rights, is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate,
8) Interfere with our Services or any third party’s use of our Services in any manner,
9) Use our Services to make unsolicited offers or advertisements to third parties in violation of any applicable Laws,
10) Use our Services to attempt to collect Personal Data about third parties without their consent,
11) Circumvent, remove, alter, deactivate, degrade, or thwart any of our content protections,
12) Frame or utilize any framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) displayed on our Site or in our Services without our prior written permission,
13) Purchase search terms or use any metatags or any other "hidden text" utilizing our names or trademarks without our prior written permission,
14) Attempt to hide your identity, or
15) Use any robot, spider, automated technology, device, or manual process to monitor or copy our Site or use any of the same to interfere, or attempt to interfere, with our operations.
d. Unless pre-approved by us in writing, you may not attempt to develop your business through use of any part of our Intellectual Property. You shall not, directly or indirectly, anywhere throughout the world, present, develop, manufacture, produce, market, sell, or provide any product or service that uses any concepts, formats, presentation methods, terminology and/or other Intellectual Property owned by us or that is specifically derived from or attributable to our property.
e. Nothing in these Terms should be construed as conferring by implication, estoppel, or otherwise, any license or right to you to our Intellectual Property except as specifically granted by written agreement, signed by you and us.
f. This Article 7, including all subparagraphs, shall survive termination of your use of our Services and any other agreement you may have with us.a.
8. Bugs/Errors & Updates.
In the event we or our Affiliates, Freelancers, or Business Partners uncover bugs or errors in Customer equipment, Customer equipment will not produce the desired results, or Customer equipment or the Event location hinders, bars, or reduces the quality of Services, Customer takes full responsibility and liability for such issues and hereby indemnifies us and our Affiliates, Freelancers, and Business Partners from and against any liability for such issues, including for attorneys’ fees, costs, and any amounts paid in settlement. We and our Affiliates, Freelancers, and Business Partners shall not be responsible or liable for the inability to complete Services when Customer equipment is faulty. Customer shall still be responsible for all payments required under the Customer Agreement and any Event Call Sheet.
In the event you or we discovery bugs or errors in our Services, we will endeavor to correct such issues in accordance with industry standards to the extent those issues cause our Services to fail in their intended purpose(s). In the event we are unable to correct such bugs or errors, your only recourse shall be to stop using our Services. Please consult out Disclaimers for more information.
You grant us permission to install upgrades, updates, and improvements to our Services that are purchased, licensed, or leased from us in our sole reasonable discretion.
9. User Content.
User Content is any audio, visual, or multi-media material owned by you and provided to us or our Freelancers, Affiliates, agents, or Business Partners. It may include, without limitation and by way of example only, photographic stills, text, audio, video, and audio-video media owned by you or used by you with permission from a third Person. It may be a headshot, biography, mission statement or other entity information, commentary, a testimonial, or a video. It may include images, names, or a human individual’s voice. You are solely responsible for any User Content and hold us harmless, and indemnify us and our Affiliates, Freelancers (other than you), agents, and Business Partners, from and against any liability, including attorneys’ fees and costs and any amounts paid in settlement, arising from such User Content whatsoever. By way of example only and not by way of limitation, if you post video of an individual, make sure you have that individual’s written, signed consent.
Any views or opinions expressed in any User Content and displayed on our Site (with your permission) or elsewhere do not necessarily state or reflect our views or opinions.
Your sole and exclusive remedy for your or any third Person’s injury, loss, or damage to, or caused by, User Content will be for us to identify the User Content as belonging to you. We do not maintain, backup or otherwise retain User Content on your behalf.
10. Limited License to AVLancer: User Content.
By providing us with any User Content, you hereby grant us a royalty-free, nonterminable, world-wide license to view, copy, report on, commingle, and otherwise access and use User Content (a) to provide Services requested by you, and (b) to post authorized User Content in whole or in part on our Site or social media pages for any purpose(s), and (c) for any commercial, analytical, or statistical purposes, alone or in combination with other content, whatsoever, and in any form and format. This license shall continue unless terminated by your Notice to us, whereupon we shall delete, pseudonymize, or anonymize your User Content on our Site or in our possession or control and on any social media within a reasonable period of time of our receiving your Notice. We shall not be required to remove, alter, or collect User Content published or distributed and not under our control at the time of your Notice.
This Article 10, including all subparagraphs, shall survive termination of your use of our Services and any other agreement you may have with us.
11. Release: User Content.
You hereby release, discharge, and agree to save AVLancer, Inc., as well as our Affiliates, Freelancers, agents, and Business Partners, harmless from any liability whatsoever for any Claims related to use of your User Content, whatsoever, including attorneys’ fees and costs and any amounts paid in settlement, including by virtue of any blurring, distortion, alteration, optical illusion, or use of User Content in composite form, whether intentional or otherwise, that may occur or be produced in our use of User Content, as well as any publication thereof, including, without limitation, any Claims for libel, false light, or invasion of privacy.
Fees paid for Services are NONREFUNDABLE.
Fees for our Services are detailed in a separate purchase order, invoice, Customer Agreement, Event Call Sheet, or Independent Contractor Agreement issued by us, which agreements are subject to these Terms as if fully included therein. You agree that we may bill charges through the payment method specified in your account or as otherwise specified by you, for example, a credit card. You authorize such credit card account to pay any amounts so paid or contributed by you and authorize us and our authorized payment processor (a Business Partner) to charge all sums described and authorized to such credit card account. You agree to provide us, or our Business Partners who process your payment, with updated information regarding your credit card account upon our request and any time the information earlier provided is no longer valid. Third-party processors are required, by their own terms, to maintain Personal Data as confidential. To the extent we have knowledge of any request for disclosure of your Personal Data relating to payments to a governmental authority or legal process, we will provide Notice to you at your last-known email address. Since we use PayPal for credit card processing, please see that Business Partner’s User Agreement available at https://www.paypal.com/us/webapps/mpp/ua/useragreement-full. You agree to comply with that agreement and hold us harmless and indemnify us for any liability for your failure to abide by that agreement.
Payment for all Services shall be made to AVLancer. Payment for all estimated Services is due immediately upon receipt of our invoice to you. If you wish to apply for credit terms, please contact firstname.lastname@example.org. If you wish to sign up for AVLancer’s automatic credit card billing services, you will receive a 2% discount on your total Service charges and all Services will be charged promptly upon completion. Credit card information is maintained on cloud-based secure servers through our Business Partners and is password protected until it is no longer required, at which time it will be deleted.
This Article 12, including all subparagraphs, shall survive termination of your use of our Services and any other agreement you may have with us.
13. Audit | Monitoring Rights.
We reserve the right to monitor all use of our Services. In the event any monitoring reveals that our Services are being used contrary to these Terms or any other agreement between you and AVLancer, you will be responsible for the payment to us of:
· additional fees consistent with your actual use of our Services, and
· our costs and expenses in performing any such audit (a. and b., collectively, “Assessments”).
Any Assessments under this Article 13 shall be without prejudice to any other rights and remedies we may have for breach of these Terms. Our decision not to perform an audit shall not relieve you of your obligations under these Terms.
This Article 13, including all subparagraphs, shall survive termination of your use of our Services and any other agreement you may have with us for two (2) years.
You must be the age of majority in the jurisdiction in which you reside to use our Services.
Our Site may be accessed by children, but we do not knowingly allow children to purchase, license, or lease Services or to provide User Content to us.
By agreeing to these Terms, you represent and warrant to us that: (a) you are the age of majority in your jurisdiction or are not under eighteen (18) if you reside in the U.S., and are competent to agree to these Terms; (b) you have not previously been suspended or removed from using our Services; and (c) your use of our Services is in compliance with any and all applicable Laws. If you are using our Services on behalf of a company or organization, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization as well as others acting on behalf of all that organization.
15. Linked Accounts.
16. Your Representations and Warranties.
You affirm, represent, and warrant that:
· You are the creator and owner of, and/or have the necessary licenses, rights, consents, and permissions to use, and allow us to use, User Content,
· To the best of your knowledge, all User Content is true and accurate and transmission thereof to us does not violate any applicable Laws,
· User Content does not and shall not: (i) infringe, violate, or misappropriate any third-party right, including any Intellectual Property or other proprietary right, or (ii) slander, defame, harass, or libel any third party,
· You will maintain the confidentiality of a Personal Data in your possession that belongs to a third party and will comply with all applicable Laws regarding the privacy of such information,
· You will comply with all Terms herein, and
· You will comply with all applicable Laws.
You hereby indemnify and hold us harmless from and against all Claims and liability, including attorneys’ fees and costs and any amounts paid in settlement, related to your breach of the representations and warranties in these Terms.
17. Assignment of Improvements.
Any Improvement to our Services and/or related Intellectual Property is owned by us, even if such Improvement is conceived of, developed, or created by you.
Except as otherwise agreed between us in a signed written agreement, in the event you think of or create any Improvements based upon or derived from our Services, you agree: (a) to promptly notify us of any such Improvement, providing all appropriate information for us to develop and utilize such Improvement by contacting email@example.com, and (b) without the necessity of further agreement, to assign to us all rights, title, and interest in any such Improvement. You agree to promptly execute all documents, prepared at our expense, that are reasonably necessary to reflect this assignment without any further consideration.
18. Refusal to Provide Services.
You understand and agree that we have the right to refuse to provide Services to you or any other Person for any reason in our sole discretion except as otherwise disallowed by applicable Laws. We also have the right to remove or delete any User Content you provide to us (directly or through our social media or through any link to our social media (e.g., using “@” or “#” with any of our Marks) without Notice to you. Such refusal shall not be a breach of these Terms or any other agreement with you and shall not subject us to any liability for Claims, including attorneys’ fees and costs and any amounts paid in settlement, without limitation, even if you suffer injury or damages.
Some portions of our Services may be copyrighted and owned solely by us or are used by us under license from a third party. Your unauthorized use of such copyrighted protected materials, in whole or in part, may violate U.S. Copyright Laws, as well as other applicable Laws. You may not use our copyrighted materials without our written permission.
In the event you believe your copyrighted content has been utilized on our Site, please consult Article 21 herein.
We own the following trademark(s) and trade name(s) (“Marks”), whether registered in the U.S., elsewhere in the world, or utilized at common law:
This list may not be complete, and we may own additional Marks that are not listed herein. If you have questions about our Marks, please contact firstname.lastname@example.org. You may not use any of our Marks without our written permission. Notwithstanding, if you wish to post User Content resulting from the use of our Services on your own social media or website, you may use #AVLancer or @AVLancer in that post.
21. Intellectual Property Violations.
In the event you believe your Intellectual Property rights have been violated, please contact email@example.com and provide us with all of the following information:
· Your, or your authorized agent’s, physical or electronic signature as the Intellectual Property owner;
· Identification of the Intellectual Property claimed to have been infringed or, if multiple materials are infringed, identification of a representative list of such works, including a link to the original work and any registration certificates if available;
· Identification and location of the infringing material within our Site, our social media, or other specific locations within our possession and control;
· Your contact information, including name, physical and email addresses, and telephone number(s);
· A statement that you have a good faith belief that the use of the material in the manner asserted is not authorized by you, as the Intellectual Property owner, your agent, or the Law; and
· A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the Intellectual Property owner (if filed by an agent).
Note, we require all of the above information. If you send us incomplete information, we will not be able to process your request. We will return your request, indicating what information is missing.
22. Relief for Breach.
We reserve all rights and remedies at law and equity in the event you breach any of these Terms or violate our rights in any manner. You agree that we may proceed with such injunctive or other equitable relief without the necessity of posting a bond as may be available to prevent your breach and, in addition, may pursue an action to recover damages. You agree that if you have cloned or are using a clone of our Services (including, without limitation, our Site), in whole or in part, or have intentionally or recklessly mis-utilized our Services in whole or in part for yourself or a third Person in violation of any applicable Laws, for any reason, you shall be liable for all damages incurred by us and any injury we suffer, any profits you have earned through such breach (without duplication), and you may be subject to an injunction to prevent further breach. We may also terminate your ability to use our Services, without reimbursement for payments made to us, for any breach of these Terms. Regardless of such breach, any invoices from us to you that are due and payable shall continue to be due, owing, and payable.
23. Business Partners.
24. Links | Third-Party Services.
25. Electronic Communications.
For Site visitors or Service customers located outside of the EU/EEA, by accessing our Site and/or downloading, licensing, accessing, or using our Services or contacting us for further information, you consent to receiving our electronic communications.
All recipients of communications from us will be provided with an option to opt out of communications from us in each communication.
You agree that any Notice, agreements, disclosure, or other communications that we send to you electronically shall satisfy all legal communication requirements, including that such communications be in writing. Should you wish to opt out of e-mail communications, except for legal Notices, please let us know by contacting firstname.lastname@example.org. We will remove your e-mail from our database for such e-mails within a reasonable time period. Notwithstanding, our delay in complying with your opt-out request shall not be considered a breach of these Terms.
In addition to all other indemnification detailed in these Terms, you agree to hold harmless and indemnify us from and against any third-party Claims, including attorneys’ fees and costs and any amounts paid in settlement, arising in any way from your acts or omissions that cause damage, loss, or injury to such third party.
Except as specifically detailed in any other written agreement signed by both you and AVLancer, our Services shall not form the basis of, or be relied upon in connection with, any additional contract or commitment whatsoever.
Except as provided herein, our Services are provided “AS IS” and “AS AVAILABLE” without any warranties, express or implied. You understand and agree that use of our Services involves some risk. Accordingly, you hereby assume all risks of use, whatsoever, and waive any rights of action against AVLancer, as a result of any damage, injury, or condition that may result from such use, and hold AVLancer harmless and release us from any and all Claims, including attorneys’ fees and costs and any amounts paid in settlement, arising out of any damage, loss, or injury to you, your employees, contractors, family members, guests, invitees, customers, heirs, and successors, whether such loss, damage, or injury results from our negligence or from any other cause, including without limitation, from acts or omissions by Freelancers..
TO THE EXTENT PERMITTED BY LAW, AVLANCER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (i) WARRANTIES OF MERCHANTABILITY, (ii) FITNESS FOR A PARTICULAR PURPOSE, (iii) EXPECTED OR INTENDED RESULTS, AND (iv) NON-INFRINGEMENT. WE DISCLAIM ANY AND ALL LIABILITY FOR YOUR INABILITY TO USE OUR SERVICES FOR ANY REASON.
WE DISCLAIM ANY AND ALL LIABILITY REGARDING THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF OUR SERVICES.
IN NO EVENT SHALL AVLANCER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHATSOEVER, WITH RESPECT TO, ARISING FROM, OR RESULTING FROM, OUR SERVICES.
IN THE EVENT SERVICES ARE PURCHASED OR USED IN A JURISDICTION THAT DOES NOT PERMIT ALL OR A PART OF THESE DISCLAIMERS, THE MAXIMUM AMOUNT RECOVERABLE FOR ALL CLAIMS RESULTING IN A FINAL JUDGMENT, WHETHER BROUGHT AT ONCE OR SEPARATELY OVER TIME, SHALL BE RESTRICTED TO THE PURCHASE PRICE PAID FOR THE SPECIFIC SERVICE OR EVENT (per our Event Call Sheet) AT ISSUE (WHICH HAS GIVEN RISE TO THE CLAIM) AND SHALL ONLY BE AVAILABLE TO THE PERSON PURCHASING SUCH SERVICE.
28. Choice of Law | Applicable Laws.
Unless otherwise agreed upon or specified herein, you agree that any legal problems or issues arising as a result of our Services, User Content, or these Terms whatsoever are subject to the Laws of the State of Colorado, U.S.A., unless U.S. Federal Laws apply, without giving effect to any principles of conflict of laws. Jurisdiction shall only be appropriate in the Colorado state courts in the county in which AVLancer, Inc. has its principal place of business or the U.S. District Court of Colorado over matters concerning Services. Further, you and AVLancer expressly and irrevocably consent to the personal and subject matter jurisdiction and venue in these courts for any Claim made relating to these Terms, any other agreement we may have with you, and/or our Services. You also agree that, unless against the applicable Law in the Jurisdiction, you shall only assert Claims against AVLancer in an individual (non-class, non-representative) basis, and that you shall not seek or agree to serve as a named representative in a class action or seek relief on behalf of anyone other than yourself.
We administer our Services from our offices in Colorado, USA. We make no representation that our Services are appropriate or available for use in your jurisdiction; and access to our Services from territories where its content is illegal is prohibited. If you choose to access, download, license, lease, purchase, and/or use our Services from outside the United States, you do so on your own initiative and are responsible for compliance with applicable Laws.
Any notice, request, demand, or other communication required under these Terms (“Notice”) from you to us must be in writing and will be deemed sufficiently given upon delivery, with separate written confirmation of receipt, at the address detailed in the Colorado Secretary of State if mailed by U.S. mail, postage pre-paid, or provided to us by hand delivery. All such Notices will become effective on the date of written confirmation of delivery. Notwithstanding, any Notice to terminate your software license may be provided to us by email at email@example.com as long as you have a separate digital confirmation of delivery.
Any Notice from us to you shall be sufficient if (i) emailed to you at your last known email address in our files as long as a separate written/digital confirmation of delivery exists or (ii) mailed by U.S. mail, postage prepaid, at your last-known address in our files, or (iii) posted on our Site with a pop-up reminder to view such Notice the next time you access our Services online.
Any Notice to AVLancer should be provided to:
4704 North Harlan St., #500
Lakeside, Colorado 80212
With a courtesy copy to firstname.lastname@example.org.
Questions or comments regarding these Terms may be sent to:
email@example.com or Telephone: 866-285-2623
· (for questions regarding our Services)
a. “Affiliate” for so long as one of the following relationships is maintained, means (i) any entity owned by, owning, or under common ownership with a party to this Agreement or (ii) another entity whereby a party has the power to vote on or direct the affairs of such other entity, or (iii) any Person actually controlled by, controlling, or under common control with a party.
b. “AV Work” is audio-visual work contracted for through AVLancer and completed by Freelancers or us and is a subset of Services.
c. “Business Partners” are Persons with whom we enter into agreements to assist with distributing our Services, to process payments, to analyze traffic, and to communicate with you. Freelancers are included in this definition.
d. “Claim” means any disagreement whatsoever, including, without limitation, any controversy, dispute, demand, cause of action, litigation, or other legal proceeding whatsoever. Any indemnity (i.e., security provided against losses) for Claims includes an indemnity for the indemnified party’s reasonable attorneys’ fees and costs.
e. “Customer” means a Person receiving audio-visual Services (“AV Work”) from a Freelancer administrated through AV Lancer. Any reference to “you” in these Terms means any Person using our Services, including Customers.
f. “Event” means a date and time-specific occasion wherein a Customer has requested, and a Freelancer has agreed to provide, AV Work and that is administrated by AVLancer.
g. “Event Call Sheet” means the statement of work for AV Work to be conducted by a Freelancer for a Customer, which shall include all requirements, timing, location, estimated charges, equipment, deliverables, and the schedule for such AV Work.
h. “Freelancer” means an independent contractor audio-visual professional (also a “Business Partner”) who we connect with Customers to provide audio-visual Services. Any reference to “you” in these Terms means any Person using our Services, including Freelancers.
i. “Improvement” means any alteration, modification, change, or product or service derived from a pre-existing work, product, or service.
j. “Information,” means any of our text, artwork, audio, video, or multimedia content on our Site or included in our Services.
k. “Intellectual Property” has the meaning generally and most broadly understood and includes, by way of example and not limitation, (i) all designs, specifications, processes, techniques, technology, drawings, strategies, methodologies, presentations, prototypes, computer programs, models, marketing plans, and inventions, any of which may or may not be represented by patent applications, patents, trademarks, copyrights, moral rights, and trade dress, whether or not registered or registrable, and including all rights to related applications, registrations, continuations, and renewals; (ii) confidential and/or proprietary information, Trade Secrets, ideas, concepts, methodologies, and know-how; and (iii) publicity rights and privacy rights, all of the above (i), (ii) and (iii) in any form or format.
l. “Jurisdiction” for any Claims related to these Terms or the subject matter herein means the Colorado, U.S.A. county in which AVLancer, Inc. has its principal place of business or the U.S. Federal District Court of Colorado.
m. “Law” means all applicable federal, state, and local statutes, rules, regulations, ordinances, and related case law.
n. “Legends” shall have the meaning specified in Article 7c5.
o. “Linked Account” means an account that you may have with a third-party website or social networking service from which account you are able to link to our Services, including our Site.
p. “Person” means a human individual and/or a business entity as is applicable.
q. “Personal Data” is defined differently depending on where you reside. If you reside in the United States, to the extent appropriate under applicable Laws, Colorado Law controls in these Terms except as superseded by U.S. Federal law. In the event you are located in the European Union/European Economic Area (“EU/EEA”), Personal Data will be defined by the applicable Laws where you reside, however, these Laws shall not over-ride the subject-matter and personal Jurisdiction of Colorado, U.S.A. as defined herein.
r. “Services” means any and all offerings from us to you, including without limitation, our Site, Information on such Site, audio-visual (“AV”) services provided by us or contracting Freelancers, software as a service (“SAAS”), merchandise, surveys, contests, and other products or services we may offer or provide at any time.
s. “Site” or “Website” means https://www.avlancer.com and all pages associated with this domain name, any other AVLancer Internet websites, and our Affiliates’ Internet websites, excluding User Content.
t. “Tax” means any charge, levy, impost, duty (including without limitation goods and services tax, value added tax, sales tax, withholding tax, stamp duty, or transaction duty), fee, deduction, and any interest, fine, or penalty charge that is assessed, levied, imposed, or collected by any government body.
u. “Trade Secret” has the meaning provided by Colorado law and U.S. Federal law (whichever is broader) as amended from time to time.
v. “Transfer” means any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by request, devise or descent, or other disposition of any kind, including, without limitation, transfers to receivers, levying creditors, trustees, or receivers in bankruptcy proceedings, or general assignees for the benefit of creditors, whether voluntary or by operation of law, directly or indirectly.
w. “User Content” means any information or material provided by you to us in any form or format and through any media or medium and may include, by way of example only, Personal Data, audio-video material, linked content, surveys, and contest submissions.
x. These definitions apply whether a defined term is utilized in the singular or plural form.
y. All definitions in this Article 30, including subparagraphs, shall survive termination of this Agreement.
a. Confidentiality. If you and/or AVLancer have executed a confidentiality agreement, that agreement shall continue in full force and effect regardless of these Terms or any other agreement you may have with us. In the event of any conflict between these Terms and any confidentiality agreement, the terms most protective of AVLancer shall control .
b. Independent Contractors. All Freelancers, who are also considered Business Partners, are independent contractors of AVLancer, are not agents of AVLancer, and may not execute any agreements on behalf of AVLancer. Further, such independent contractors are required to maintain insurance for all AV Work conducted. IN THE EVENT YOU HAVE A CLAIM REGARDING AV WORK COMPLETED OR FOR THE ACTS OR OMISSIONS OF A FREELANCER, YOU AGREE THAT ANY SUCH CLAIM IS BETWEEN YOU AND SUCH FREELANCER WITHOUT ANY LIABILITY OR CONTRIBUTION FROM AVLANCER. AVLancer’s only obligation as an administrator connecting Freelancers with Customers and collecting on invoices will be the identification of the applicable Customer Agreement and the Independent Contractor Agreement. Further, AVLancer is an independent contractor to Customer.
c. Third-Party Materials. In the event you request a Freelancer to use third-party property in completing AV Work or there are individuals or any Person’s name appearing in any AV Work, you warrant and represent that you have obtained prior written authorization for the use of such property, names, and/or images for all purposes for which such AV Work is used and hereby indemnify and hold us harmless from any liability for use of such property, including any attorneys’ fees, costs, and any amounts paid in settlement.
d. Dispute Resolution. With the exception of any type of Claim wherein either you or AVLancer is entitled to seek the immediate remedy of a temporary restraining order, preliminary injunction, or such other form of injunctive or equitable relief as may be used by any court of competent jurisdiction to restrain or enjoin the Person breaching our Agreement, or to specifically enforce the provisions of our Agreement, we both agree to resolve any Claims as follows: We shall first attempt to resolve the dispute between ourselves through good faith informal negotiations between the principals. If we are unable to resolve the dispute within thirty (30) days of an initial Notice of a Claim by one of us to the other, we may then agree to submit the dispute to mediation or, if we do not wish to mediate their dispute, either of us may file an action with a court within the Jurisdiction for relief.
e. Reservation of Rights. All Intellectual Property contained within our Services remains our exclusive property. We reserve all rights not expressly granted to you. You shall own all Intellectual Property rights associated with any final AV Work completed by a Freelancer unless otherwise provided in a subsequent agreement. You are responsible for obtaining any releases from individuals appearing in such AV Work.
f. Assignability. We may assign all or part of our rights under these Terms in connection with a merger, acquisition, asset sale, operation of Law, or otherwise without Notice to you. You may not assign any of your rights or obligations under these Terms whatsoever.
g. Entire Agreement. In addition to any executed Customer Agreement or Independent Contractor Agreement (if any), or any other of our agreements that are executed by both parties, these Terms constitute the entire understanding and agreement between you and AVLancer, Inc. with respect to the subject matter covered herein and supersede all other prior agreements, understandings, or statements, written or oral, by or between us, if any, with respect to such subject matter. Notwithstanding, these Terms may be amended by us in our sole and exclusive discretion on Notice to you.
h. Claims. In the event you have knowledge of any Claim made by a third party against you, or referencing you, and relating in any manner to our Services or a Freelancer’s Services, you will promptly notify us, and the Freelancer, if applicable, of such Claim. You will further assist us with all reasonable assistance in the defense of such Claim. No settlement shall be agreed upon without our involvement and approval.
i. Severability. If any provision of these Terms is held to be invalid, illegal, unenforceable, or in conflict with applicable Laws or public policy, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired and shall remain in full force and effect and a court of competent Jurisdiction will endeavour to modify that clause in a manner that gives effect to the intent of these Terms.
j. Language. These Terms and any Claims are to be construed in the American English language. Any translated copy provided is for convenience only. The American English language shall control in the event of any contradiction between the English language version and a translated version.
k. Force Majeure. We will not be liable for any damages to you or to third parties for any delay or default in performance if such delay or default is caused by conditions beyond our control, including, but not limited to, acts of God, pandemics, epidemics, public health closures or public health recommendations, travel restrictions, border closures, positive Covid tests, government restrictions, regulations, Laws, or sequester, continuing domestic or international problems such as wars, threats of terrorism, or insurrections, strikes, fires, floods, work stoppages, or embargoes. In the event a force majeure event continues for over sixty (60) days, either you or AVLancer may terminate any Customer Agreement, Event Call Sheet, or Independent Contractor Agreement, which termination shall not be considered a breach.
l. Construction. Any reference to “herein” shall refer to these Terms generally and not to a specific Article. Headings and fonts are for convenience only. Anything that cannot be done “directly” under these Terms may also not be accomplished, and shall be a breach of these Terms, if accomplished “indirectly.” Any limitation on the use of our Services or our Intellectual Property automatically includes a limitation on the use of such property “in whole or in part.” These Terms are not to be construed against the drafter. Any reference to “it” or “he” shall include the party so referenced, regardless of gender and whether a human individual or entity.
m. Waiver. Waiver of any provision of these Terms must be in writing to be effective. Waiver of any breach of any provision of these Terms will not constitute or operate as a waiver of breach of such provision on any other occasion nor a waiver of any breach of other provisions, nor will failure to enforce any provision operate as a waiver of such provision.
n. Contests. In the event we sponsor of contest, only AVLancer Customers will be qualified to enter that contest. In this event, complete contest rules will be available on our Site. All Terms herein apply to any contest. These Terms shall control in the event of any conflict between contest terms and these Terms.
o. Other Laws. Nothing in this Agreement shall be construed to limit or negate any common or statutory law, including, without limitation, any such law of torts, fiduciary duties, or trade secrets, where such law provides a party with broader protection than that provided herein. Each of us hereby reserves all rights and remedies not specifically mentioned herein, whether in equity or law.
p. Survival. Articles 16 – 31 of these Terms, including all subparagraphs, shall survive termination of your use of our Services and any other agreement you may have with us.
THIS APPENDIX A APPLIES TO ALL PERSONS LICENSING AVLANCER™ SOFTWARE.
2. License. As long as we continue to make AVLancer™ software available, you shall continue to make the payments we require to access that software as a service (SAAS). As long as you do not breach any of our Terms, we grant you a non-exclusive, limited, non-transferrable, terminable license to use AVLancer™ software internally solely for its intended purposes.
3. Limitations. You may not (a) tamper with the security of AVLancer™ software; (b) access accounts or data not associated with your account; (c) attempt to probe, scan, or test the vulnerability of AVLancer™ security or authentication measures without proper authorization; (d) attempt to render any part of AVLancer™ software unusable; (e) reverse engineer, compile, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of any AVLancer™ software; (f) remove, modify, or obscure any copyright, trademark, patent, or other proprietary appearing on or within our software; (g) create any link to our Site or frame or mirror any content contained or accessible from our Services generally; and/or (h) use our Services for any unlawful purpose.
4. Your Responsibilities. You agree you will not use AVLancer™ software to (a) track or monitor any Person in violation of applicable Laws; (b) send spam or otherwise unsolicited messages in violation of applicable Laws; (c) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material; (d) send or store material containing malicious code, including without limitation, viruses, worms, Trojan horses, or other harmful computer code, files, scripts, or programs; and/or (e) violate any of our Terms. You agree to inform us promptly if you learn another Person is in violation of this license agreement.
5. Indemnity. You hereby hold us harmless and indemnify us from and against any liability or damages, including without limitation, attorneys’ fees and costs and any amounts paid in settlement, as a result of Claims resulting from your breach of this license agreement and any breach of our online Terms generally.
6. AVLancer Obligations. Our Services are provided “AS IS.” We will use commercially reasonable efforts to make AVLancer™ software available to you as long as we are making such software available generally and you are not in breach of this license agreement; however, we may terminate offering this software in whole or in part in our sole discretion. We cannot guarantee any specific response rate or that our software will be available on a continuous or uninterrupted basis. You understand and agree that software may inaccessible or unavailable from time-to-time for reasons beyond our control, including without limitation, equipment malfunctions, viruses, periodic maintenance procedures or repairs, or the interruption or failure of communications, network, or transmissions. We shall not be liable for your inability to access the software, whatsoever.
7. Bugs | Errors. We agree to (a) provide maintenance services to the extent errors or bugs are discovered, (b) notify you of any material errors reasonably discovered, i.e., those errors that that would cause AVLancer™ software to fail in its intended purposes, and (c) if such errors are not capable of being repaired, we will reasonably provide Notice to you. Your sole remedy for our failure to repair a material error is to stop use of our software and terminate your license agreement with us. Our failure to repair bugs or errors is not a breach of our Terms or this license.
8. No Refunds. In the event our software is inaccessible or unavailable, you shall not be entitled to any setoff, discount, refund, or other credit.
9. Security. We will use commercially reasonable efforts to prevent unauthorized access to our software. We will provide Notice to you of any known security breaches that are reasonably likely to adversely affect you or your account in accordance with applicable Law.
10. Termination. You may terminate this license for any reason or no reason on thirty (30) days’ Notice to us with a courtesy copy of that Notice also sent to firstname.lastname@example.org. In the event you breach these Terms, we may terminate this license to you, effective immediately upon your receipt of Notice. We may terminate this license for convenience at any time, effective immediately upon your receipt of Notice. Payment for Services provided prior to termination shall continue to be due and owing.
11. Open-Source Software. The following Open-Source Software (OSS) is included in AVLancer™ software. By accepting this license and using AVLancer™ software, you are also accepting the OSS software license for such incorporated software as follows with the stated limitations and disclaimers:
· Ruby on Rails (RoR) Framework Open-Source Software (https://opensource.org/licenses/MIT) © 2021, David Heinemeier Hansson
o Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
o The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
o THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
· PostgreSQL Database Open-Source Software
o PostgreSQL is released under the PostgreSQL License, a liberal Open-Source license, similar to the BSD or MIT licenses.
o PostgreSQL Database Management System
(formerly known as Postgres, then as Postgres95)
o Portions Copyright © 1996-2021, The PostgreSQL Global Development Group
o Portions Copyright © 1994, The Regents of the University of California
o Permission to use, copy, modify, and distribute this software and its documentation for any purpose, without fee, and without a written agreement is hereby granted, provided that the above copyright notice and this paragraph and the following two paragraphs appear in all copies.
o IN NO EVENT SHALL THE UNIVERSITY OF CALIFORNIA BE LIABLE TO ANY PARTY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF THE USE OF THIS SOFTWARE AND ITS DOCUMENTATION, EVEN IF THE UNIVERSITY OF CALIFORNIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
o THE UNIVERSITY OF CALIFORNIA SPECIFICALLY DISCLAIMS ANY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE PROVIDED HEREUNDER IS ON AN "AS IS" BASIS, AND THE UNIVERSITY OF CALIFORNIA HAS NO OBLIGATIONS TO PROVIDE MAINTENANCE, SUPPORT, UPDATES, ENHANCEMENTS, OR MODIFICATIONS.
· AVLancer’s Disclaimers contained herein shall apply equally to any and all open-source software available to our Customers.
BY EXECUTING ANY PURCHASE ORDER, CLIENT AGREEMENT, INDEPENDENT CONTRACTOR AGREEMENT, EVENT DATA SHEET, OR MAKING USE OF AVLANCER’S SERVICES, YOU REPRESENT AND WARRANT, SWEAR, AND AFFIRM THAT YOU HAVE FULLY READ THESE ONLINE TERMS AND AGREE TO ALL SUCH TERMS.