Terms of Service
Last updated on: March 13, 2020
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”). The Services offered by Avadel under the Terms of Service include various products and services to help you create and manage paid digital media (“Digital Ads”), create and manage supporting organic and other marketing services (“Marketing Services”), or both. Any new features or tools which are added to the current Service shall be also subject to the Terms of Service. You can review the current version of the Terms of Service at any time at https://avadel.agency/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 must read, agree with and accept all of the terms and conditions contained in this Terms of Service agreement before you may become an Avadel user/client/customer.
Please read the “Terms of Service” for the complete picture of your legal requirements. By using Avadel or any Avadel services, you are agreeing to these terms. Be sure to occasionally check back for updates.
1. 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.
2. Account Activation & Ownership
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) Domain Names – Upon purchasing a domain name through Avadel, domain registration and fees will be preset to automatically renew each year, or month if on monthly terms, so long as your Avadel Account remains active. You acknowledge that it is your sole responsibility to contact Avadel to deactivate the auto-renewal function should you choose to do so.
2.3) Web Hosting – Upon purchasing Web Hosting through Avadel, web hosting and fees will be preset to automatically renew each year, or month if on monthly terms, so long as your Avadel Account remains active. You acknowledge that it is your sole responsibility to contact Avadel to deactivate the auto-renewal function should you choose to do so.
2.4) Other subscriptions – Upon purchasing other subscription services through Avadel, including but not limited to email outreach software, web application integration software, reporting software, etc, these fees are will be preset to automatically renew each year, or month if on monthly terms, so long as your Avadel Account remains active. You acknowledge that it is your sole responsibility to contact Avadel to deactivate the auto-renewal function should you choose to do so.
3. General Conditions
You must read, agree with and accept all of the terms and conditions contained in these Terms of Service before you may become a user/client/customer of Avadel.
3.1) Technical support and Service is only provided to paying Account holders and is only available via email, voice phone calls, or in person meetings via applicable office and/or account manager.
3.2) Avadel will not alter the scope of work set out and agreed upon in user contract without prior written approval from user/client/customer. All changes to Project Scope will be approved and billed to user/client/customer in an appropriate and expedient manner and subject to Standard Fee Payment Schedule as outlined in your contract.
3.3) Avadel will work with all diligence to adhere to project schedules outlined in proposal. User/Client/Customer understands that they are responsible for providing timely feedback and schedules can and will be extended due to feedback. User/Client/Customer also understands and accepts that they are responsible for providing content and revisions in a timely manner. Avadel is not liable for any schedule issues or delays that arise during project work and Services.
3.4) Marketing Services commence at project onset and agreement approval. Marketing Services are subject to Standard Fee Payment Schedule as outlined in your contract.
3.5) User/Client/Customer agrees to the revision process outlined in their scope of work and their allocated revision hours. Launch of services and/or Final Payment is considered final acceptance of the services. You agree that any and all revisions and/or Services after Acceptance will be billed hourly at Avadel’s hourly rate.
3.6) User/Client/Customer acknowledges that they are responsible for performing the following in a reasonable and timely manner: (a) provide content in a form suitable for development to Avadel; (b) proofread all content and text provided.
3.7) All Technical Support and Support Services that exceed a total of 1 hour within a 30 day period are subject to our standard hourly rate, unless Scope of Service states otherwise.
3.8) All Emergent Work, defined as work Avadel is required, at the direction of the Client, to perform outside of normal business hours or on Avadel-observed holidays will be subject to a $350 fee for the first hour of work, plus $250 for every subsequent hour. Minimum charge will be for one hour of work. Normal business hours are defined as Monday through Friday 9:00 AM – 5:00 PM Central.
3.9) Avadel does not guarantee any results in regards to design, development, and maintenance of your paid digital media, organic or other marketing efforts, including but not limited to any/all Search Engine Optimization Services and Digital Ads. Client agrees to, understands, and will not hold liable Avadel for any performance in the rankings whether positive or negative.
3.10) The Terms of Service shall be governed by and interpreted in accordance with the laws of the State of Texas and the laws of the United States applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of Texas with respect to any dispute or claim arising out of or in connection with the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.
3.11) You acknowledge and agree that Avadel may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on the Avadel website, available at https://avadel.agency/terms and such amendments to the Terms of Service are effective as of the date of posting. Before the posting/effective date Avadel will email all current clients the updated Terms of Service to review. Your continued use of the Services after the amended Terms of Service are posted to the Avadel website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, do not continue to use the Service.
3.12) You may not use Avadel’s service for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of the State of Texas and the United States. You will comply with all applicable laws, rules and regulations in your use of the Service.
3.13) You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Avadel.
3.14) You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Avadel or Avadel trademarks and/or variations and misspellings thereof.
3.15) You understand that your Materials, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
3.16) Avadel recommends, in conjunction with Google Compliance and best practices, the use of SSL Certificates. Avadel is not responsible for clients’ refusal of service and installation of SSL Certificate for security, SEO Rankings, or other impacts that may occur.
3.17) Questions about the Terms of Service should be sent to firstname.lastname@example.org.
4. 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, excluding any contractually agreed-to grace periods
- 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.
5. 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.
6. 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).
7. 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.
7.6) All files for work produced will be the property of Rethink Creative Group, LLC dba Avadel, however each piece will be fully licensed use to you, as well as your parenting company, if applicable. No additional fees will be charged for requesting files of work that have been produced at any time.
7.7) At the conclusion of the period of the agreement or termination, after your final payment has cleared, copyright will be automatically assigned as follows:
You’ll own the visual elements that we create for this project. We’ll give you source files and finished files and you should keep them somewhere safe as we’re not required to keep a copy. You own all elements of text, images and data you provided, unless someone else owns them.
We’ll own the unique combination of these elements that constitutes a complete design and we’ll license that to you, exclusively and in perpetuity for this project only, unless we agree otherwise. We can provide a separate estimate for that.
8. 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 within 15 days of the invoice date, you will be charged a 3% 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 creative work and digital ads will be paused immediately and will not resume until payment has been made.
8.3) Website Hosting Fees, License Fees, and any recurring subscription fees are paid in advance and will be billed in yearly or monthly intervals when requested (each such date, a “Billing Date”). Project Fees and any Other Fees will be charged from time to time at Avadel’s discretion. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Account Owner via the email provided. 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.
8.4) As a client/user/customer of Avadel, you agree to Avadel’s strict no-refund policy. At no time is Avadel liable to refund fees for any work that has been paid or pre-paid 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.
9. Cancellation and Termination
9.1) Either party to this Agreement may terminate the Agreement if the other party defaults in the performance of any of its material duties and obligations and the default is not cured within thirty (30) days of the receipt of notice of said default, or if the default is not reasonably curable within said period of time, unless the defaulting party commences cure within said period of time and diligently proceeds to cure the default. You may cancel by emailing email@example.com and then following the specific instructions indicated to you in Avadel’s response.
9.2) Either party may immediately terminate this Agreement by giving written notice to the other party if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other party makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the other party, or in the case of the Client, if the Client materially breaches its obligations to make payment pursuant to this Agreement.
9.3) Upon termination of the Services by either party for any reason:
9.3.1) Avadel will cease providing you with the Services and you will no longer be able to access your Account;
9.3.2) unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise;
9.3.3) any outstanding balance owed to Avadel for your use of the Services through the effective termination date will immediately become due and payable in full; and
9.3.4) 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.
9.4) If you purchased a domain name or website hosting through Avadel, upon cancellation your domain will no longer be automatically renewed. Following cancellation, it will be your sole responsibility to handle all matters related to your domain with the domain provider and your website hosting with a website hosting provider.
9.5) If at the date of termination of the Service, there are any outstanding Fees owing by you, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.
9.6) Fraud: Without limiting any other remedies, Avadel may suspend or terminate your Account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity.
10. Modifications to the Service and Prices
10.1) 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.
10.2) Avadel reserves the right at any time, and from time to time, to modify or discontinue, the Service (or any part thereof) with or without notice as outlined in detail in sections 4.1 and 4.2.
11. 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.
12. 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.
13. 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.