SDR Terms of Service
Last updated on: June 17, 2021
By signing up for the Avadel service (“Service”) or any of the services of Rethink Creative Group, LLC and/or Avadel (“Avadel”) you are agreeing to be bound by the following terms and conditions (“Terms of Service”). You can review the current version of the Terms of Service at any time at https://avadel.agency/sdr-terms. Avadel reserves the right to update and change the Terms of Service by posting updates and changes to the Avadel website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.
You may use the Services only in accordance with these Terms. We may make changes to these Terms from time to time. When we do, we will revise the “last updated” date given above. It is your responsibility to review these Terms frequently and to remain informed of any changes to them. The then-current version of these Terms will supersede all earlier versions. You agree that your continued use of the Website after such changes have been published to our Services will constitute your acceptance of such revised Terms. We may terminate, suspend, or modify the Services, in general, or with respect to you, from time to time without cause or prior notice. We may also delete any content or data from the Services at our discretion.
- Account Terms
1.1) You must be 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use this Service.
1.2) To access and use the Services, you must agree to become an Avadel Client and therefore maintain an Avadel client account (“Account”) by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. Avadel may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
1.3) You acknowledge that Avadel will use the email address you provide as the primary method for communication.
1.4) You are responsible for keeping any/all related passwords secure. Avadel cannot and will not be liable for any loss or damage from your failure to maintain the security of your Web Services, Web Hosting, and/or any other digital platforms including, but not limited to, social media profiles and pages. If you as the client choose to you can give us as an agency admin access to most of your social media and digital accounts in lieu of giving us your login information.
1.5) You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (“Materials”).
1.6) A breach or violation of any term in the Terms of Service, as determined in the sole discretion of Avadel will result in an immediate termination of your services.
- Your Avadel Account
2.1) Avadel Account – The person signing up for the Service will be the contracting party (“Account Owner”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Account Owner in connection with the Service.
If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
2.2) Competition — You may not access Avadel Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the Avadel Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
2.3) Intellectual Property — You agree that the Services, including but not limited to content, graphics, user interface, audio clips, video clips, editorial content, and the scripts and software used to implement the Services, contain proprietary information and material that is owned by Avadel and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use the proprietary information or materials in any way whatsoever except for use of the Services in compliance with this Agreement. No portion of the Services may be reproduced in any form or by any means, except as expressly permitted by this Agreement. You agree not to modify, rent, loan, sell, or distribute the Services or Content in any manner, and you shall not exploit the Services in any manner not expressly authorized. Failure to abide by the terms can result in damages of $2 million.
2.4) Security — You are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with your account. You must immediately notify Avadel of any unauthorized uses of your account or any other breaches of security.
2.5) Omissions — Avadel will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.
2.6) Spam — You are not allowed to send spam messages via Avadel Services. Avadel is passing all liability for any spam or other lawsuits that could occur as a result of your activity within Avadel Services to you.
You hereby warrant, represent, and agree that:
- The Service may not be used for the sending of unsolicited commercial email (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act – sometimes called “spam”).
- You acknowledge that you are the sole or designated “sender” (as such term is defined in the CAN-SPAM Act of 2003 (the “Act”) and any rules adopted under the Act) of any email message sent by you using the Service.
- The Service may only be used for lawful purposes.
- You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute mass unsolicited commercial email (as such term is defined in theCAN-SPAM Act of 2003 and any rules adopted under such act), in connection with the Service. You will import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you in connection with your use of the Service.
- You acknowledge and agree that not all email messages sent through the use of the Service will be received by their intended recipients.
- The “from” line of any email message sent by you using the Service will accurately and in a non-deceptive manner identify your organization, your product, or your service.
- The “subject” line of any email message sent by you using the Service will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
- You will include in any email message sent by you using the Products your valid physical address, if required by law, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.
- The Service may not be used for hosting content, including images and documents, that knowingly infringes on the intellectual property rights of others, including copyright, trademark and patent infringement, or that includes any obscene or libelous material or other material that violates any applicable law or regulation.
You are solely responsible for all activities that occur in Your account(s) and for the security of all of Your and passwords. Notwithstanding anything to the contrary herein, Avadel has no liability of any kind (whether by contract, tort, or otherwise) for any unauthorized access to your or your users’ accounts as a result of your actions or inaction.
- Sharing Your Data And Your Privacy
- Avadel’s Rights
4.1) Avadel reserves the right to modify or terminate the Service without notice for the following reasons.
- You’ve been or are involved in any illegal activity
- You abuse any Avadel employee, member, or officer in any way, including written or verbal abuse and threats of abuse or retribution
- Non-payment of account
- Violation of the Terms of Service
4.2) Avadel reserves the right to modify or terminate the Service with 30 days written notice.
4.3) We reserve the right to refuse service to anyone for any reason at any time.
4.4) We may, but have no obligation to, remove Materials and suspend or terminate Accounts if we determine in our sole discretion that the Materials uploaded or posted to your website, paid digital media, organic social media or any/all other marketing efforts violate our Terms of Service.
4.5) Avadel does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from the Service.
4.6) We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that Avadel employees and contractors may also be Avadel customers/clients/users and that they may compete with you, although they may not use your confidential information in doing so.
4.7) In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government-issued photo ID, the last four digits of the credit card on file, etc.
4.8) Avadel retains the right to determine, in our sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful Account owner, Avadel reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.
- Limitation of Liability
5.1) You expressly understand and agree that Avadel shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the use of or inability to use the service.
5.2) In no event shall Avadel or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with your paid digital media, organic or other marketing efforts, our services or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Avadel partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
5.3) Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
5.4) Avadel does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
5.5) Avadel does not warrant that the quality of any products, services, information, or other Materials purchased or obtained by you, the client, through the Service will meet your expectations, or that any errors in the Service will be corrected. i.e. If you send us music to use in a video that is not licensed to be used by your company, and we use it for your company assets, we will not be liable for the resulting work and/or legal action that may or may not occur from unlicensed music use.
- Waiver and Complete Agreement
6.1) The failure of Avadel to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service and the documents it incorporates by reference constitute the entire agreement between you and Avadel and govern your use of the Service, superseding any prior agreements between you and Avadel (including, but not limited to, any prior versions of the Terms of Service).
- Intellectual Property and Customer Content
7.1) We do not claim any intellectual property rights over the Materials you provide to the Avadel service. All Materials you upload remain yours.
7.2) By uploading Materials, you agree: (a) to allow other internet users to view the Materials you post publicly; (b) to allow Avadel to store, and post publicly or display your Materials; and (c) that Avadel can, at any time, review all the Materials submitted to its Service, although Avadel is not obligated to do so.
7.3) You retain ownership over all Materials that you upload to Avadel; however, you acknowledge that Materials may be made public at the discretion of Avadel for use in paid digital media, organic or other marketing services, or any other Avadel services as outlined in your Scope of Service. You are responsible for compliance of the Materials with any applicable laws or regulations.
7.4) We will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any Materials or information provided by you to us which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
7.5) Avadel shall obtain releases, licenses, permits or other authorization to use copyrighted materials, photographs, art work or any other property or rights belonging to third parties obtained by Avadel for use in performing services.
- Payment of Fees
8.1) As a client/user/customer of Avadel, you agree to pay the Fees applicable to your project and ongoing services and any other applicable fees, including but not limited to fees relating to the design, development, and maintenance of your paid digital media, organic or other marketing efforts, including any/all required third-party fees, referred to as the “Fees”. You also agree to specific payment terms outlined in specific scopes of work outlined by Avadel management.
8.2) Unless other payment terms have been contractually agreed to, you must keep a valid credit card on file with us to pay for all incurred and recurring Fees. Avadel will charge applicable Fees to the credit card account that you authorize (“Authorized Card”), and Avadel will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
8.2.1) If your card is invalid and we are unable to charge it, you will be charged a 5% late fee to cover the manpower, interest, and other costs Avadel incurs by carrying overdue invoices. Every additional 30 days an invoice ages will incur an additional 5% interest charge.
8.2.2) If your card is invalid and we are unable to charge it, all work will be paused immediately and will not resume until payment has been made.
8.3) Users have approximately fifteen days to bring up and settle any issues with the billing of any Fees. After fifteen days Avadel has the right to suspend any/all Services and terminate your account.
8.4) The Avadel Service is billed in advance in accordance with our pricing schedule and all monthly payments are nonrefundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. If you cancel, you will not receive a refund for any service already paid for.
- Cancellation and Termination
9.1) You can stop using our Services at any time and we reserve the right to suspend or end the Services to you in whole or part at any time, with or without cause, and with or without notice, without incurring the liability of any kind.
9.2) Without limitation, we may suspend or terminate your use if you are not complying with these Terms, or if you use the Services in any way that may cause us legal liability or disrupt others’ use of the Avadel Services or damage to our business or reputation, or for any other reason.
9.3) If we suspend or terminate your use, we will try to let you know in advance and help you retrieve data, though there may be some cases (for example, repeatedly or flagrantly violating these Terms, a court order, or danger to other users) where we may suspend or terminate your account and access to the Avadel Services immediately.
9.4) You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to Your Data that is stored with the Service. To cancel your account you should send a request to our support team by emailing email@example.com.
- Modifications to the Service and Prices
We reserve the right to change our pricing at any time for hourly work above and beyond the scope of the contract signed. If, for any reason, a client is currently on a month-to-month contract, the price of the work can change at any time with 30 days written notice. Such notice may be provided at any time by email to the contact email address on file.
- Third Party Services
11.1) In addition to these Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, Avadel partners or other third parties.
11.2) Avadel may from time to time recommend, provide you with access to, or enable third party software, applications (“Apps”), products, services or website links (collectively, “Third Party Services”) for your consideration or use, including any/all third party themes, plugins, extensions, merchant providers, etc. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). Any use by you of Third Party Services offered through Avadel is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them.
11.3) We do not provide any warranties with respect to Third Party Services. You acknowledge that Avadel has no control over Third Party Services, and shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services, including the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Avadel.
11.4) Avadel strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs.
11.5) If you install or enable a Third Party Service for use with the Services, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. Avadel is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials.
11.6) Under no circumstances shall Avadel be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider, including any Expert. These limitations shall apply even if Avadel has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Avadel partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
- DMCA Notice and Takedown Procedure
12.1) Avadel supports the protection of intellectual property and asks Avadel customers/clients/users to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our clients/customers/users is infringing their intellectual property rights, they can send a DMCA Notice to Avadel’s designated agent using our email firstname.lastname@example.org. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the customers/clients/users can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the customers/clients/users from engaging in the infringing activity, otherwise we restore the material.
- General Data Protection Regulation (GDPR)
13.1) The European Union’s General Data Protection Regulation (GDPR) came into effect on May 25, 2018. The GDPR imposes new obligations and responsibilities on controllers and processors of data. As a Avadel customer/client, you are the controller of your customers’/visitors’ data. This means that you collect your customers’ data and choose how it is handled. Additionally, though it is a European regulation, the GDPR might apply to your business if you make goods and services available in Europe, even if you or your business are not located in Europe. As a service provider, Avadel follows your instructions on how to handle that data.
While Avadel does what it can to set you up for success, there are also steps you will need to take on your own, and ultimately, compliance with the GDPR is the responsibility of each individual Avadel customer/client/user. If you have legal questions specific to your obligations under the GDPR, then please consult with a local lawyer who is familiar with data protections laws.
This Agreement constitutes the entire agreement between Avadel and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Avadel, or by the posting by Avadel of a revised version.
Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website will be governed by the laws of the state of Texas, USA, excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and provisional courts located in Fort Worth, Texas. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Fort Worth,Texas, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.
If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
You may not assign your rights under this Agreement to any other party without Avadels’s express written consent; Avadel may assign its rights under this Agreement without condition. This Agreement will be binding upon and will insure to the benefit of the parties, their successors, and permitted assigns.