Terms and Conditions
Updated: February 7, 2020
PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY. IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AN AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS (UNLESS YOU OPT OUT), AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
Welcome to the Avail car sharing service. Avail is a peer-to-peer car sharing platform that connects owners with vehicles available for use by others (“Owners”) with drivers seeking to use those vehicles for their individual transportation needs (“Drivers”). Each Driver and Owner is a “user”. This Agreement applies to all users of Avail and applies at any location in which Avail provides an opportunity for using shared vehicles, including, without limitation, airports, communities, and the Flare offering.
To facilitate car sharing, ANIHI Newco, LLC (“Avail”) provides an online platform through the Avail mobile phone application (the “App”), Avail’s websites, or through other options we make available (collectively, the “Services”). You accept and agree to comply with this agreement (the “Agreement”) by either: (a) clicking to agree to this Agreement, where this option is available; or (b) by accessing or using the Services, in which case you automatically agree to be bound by this Agreement.
Avail reserves the right, at its discretion, to modify this Agreement at any time. The date of the last update will be posted above. If you do not agree to this Agreement as modified, you must stop using the Services. Avail will use reasonable efforts to notify you when material changes are made to this Agreement, however, it is your responsibility to understand and comply with the Agreement, as modified. Your continued use of the Services following the posting of any changes to this Agreement constitutes your acceptance of those changes.
Your right to use the Services terminates, in our sole discretion, if you violate this Agreement.
Eligibility Requirements Our Services are intended solely for persons who are 18 or older and approved by us as users of the Services. Any use of the Services by anyone under 18 is expressly prohibited. The Services are not available to any users previously removed from the Services by Avail, unless we have given you written notice of reinstatement.
Registration To access certain portions of the Services, you must sign up for an account with us through our App, at our website, or through any other means we offer, and accept this Agreement.
Avail User Approval Process When you sign up to either list or reserve a vehicle, you will provide us with certain information about yourself and your vehicle, if applicable, to enable us to verify your identity and to evaluate whether you meet the eligibility criteria set forth in this Agreement, in order to become an approved user of the Services. You promise to provide complete, true, and correct information to Avail about yourself and your vehicle(s), if any. You authorize Avail to order one or more consumer reports on you and to undertake screenings in order to confirm that Owners, users, and vehicles have met Avail’s eligibility criteria set forth herein. Avail may, in its sole discretion, use third-party services to verify the information you provide to us and to obtain additional information about you. A “consumer report” includes any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living that is used in whole or in part as a factor in establishing the consumer’s eligibility for a purpose authorized under the Fair Credit Reporting Act. The consumer reports Avail will order pursuant to this Agreement may include, but may not be limited to, reports containing driver license validity information and driving and or motor vehicle record information on you from any state in which you have been licensed to drive, as gathered and communicated by a consumer reporting agency. This Agreement will serve as your signed, written consent for Avail to order such consumer reports. We may make corrections to information you provide in your account where appropriate based on information found in such consumer reports. Avail, in its sole discretion, also may accept or reject your application to become a user, including on the basis that your consumer report shows that you fail to meet Avail’s eligibility criteria. In the event that Avail does not approve you to become a user of the Avail Services on the basis, wholly or in part, of the information in a consumer report, Avail will notify you of this fact and provide you with information regarding the third party that provided the information to Avail, to the extent required by applicable law.
Eligibility Criteria. Avail, in Avail’s sole discretion, will determine the eligibility criteria for use of the Avail Services. In certain circumstances, Avail may restrict usage of the Avail Services. For example, borrowing a vehicle from Avail at Airports is for travelers in-bound to the local airport only, so Avail is unable to accommodate users with an address local to the Avail for Airports location.
Consumer Report Authorization By checking the applicable box and continuing with the account sign-up and application process, you are providing Avail with authorization in accordance with the Fair Credit Reporting Act and all applicable state and local laws to obtain one or more associated consumer reports and other third-party sources of data, including, without limitation, your credit report and score, motor vehicle records, prior insurance reports, and any other consumer reports relevant to identity verification and risk associated with your Avail account. You also authorize Avail to conduct a background check, including a criminal background check where permissible under applicable law. In addition, you are authorizing Avail to obtain consumer reports and a background check at any time Avail reasonably believes there may be a need to obtain current information related to risk associated with your Avail account.
Ongoing Contact and Information Updates It is important that your information related to listed vehicles or to using vehicles reserved through Avail remains current in your account. You promise to update the information you have provided to Avail in the event of any changes to your driving record, contact information, or background information. Avail may also contact you and deliver notices to you at the most recent email, telephone, or billing address provided by you, so it is important that you keep your contact information current. You will be bound by those notices even if you may no longer be reached at the email address, telephone number, or mailing address most recently provided to us.
Account Security and Unauthorized Use You are solely responsible for all activity that occurs through your account, so please keep your password and account information secure. You agree that you will not disclose your password to any third party and that you take sole responsibility for any activities or actions under your Avail account, whether or not you have authorized such activities or actions. You will immediately notify Avail of any actual or suspected unauthorized use of your Avail account. We are not responsible for any unauthorized access of your account.
Use of Avail for its Intended Permissible Purposes Only You agree to use the Services only for their intended purposes and may not use them for any purposes beyond car sharing transactions. You may not contact other users for any purpose other than for issues related to a booking. You may not interfere with the operation of the Services by engaging in disruptive or anti-competitive activity including, without limitation, interfering with any other user’s listings or using any technological means such as bots, harmful code, denial of service-attacks, forged IP address information or similar methods that may disrupt or interfere with Avail’s operations or Services. In addition, you may not attempt to systematically retrieve information, data, or other content from our Services.
Violations of these Terms Avail has the right, but not the obligation, to investigate, pursue, and seek to prosecute, litigate, or refer to law enforcement, violations of this Agreement or any applicable law to the fullest extent permissible by law. Avail reserves the right, at any time and without prior notice, in accordance with applicable law, to remove or disable access to the Services or any content that Avail, at its sole discretion, considers to be objectionable for any reason, in violation of this Agreement or otherwise harmful to the Services or our community. If we believe you are abusing Avail, our users, or Avail team members in any way or violating the letter or spirit of this Agreement, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, remove hosted content, and take technical and legal steps to prevent you from using our Services. Additionally, we reserve the right to refuse or terminate our Services to anyone for any reason at our discretion to the full extent permitted under applicable law.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND AVAIL HAVE AGAINST EACH OTHER ARE RESOLVED.
Failure to follow these procedures may delay or preclude you from pursuing a claim. If you have claims arising from or related to this Agreement, you must contact Avail’s customer support team at firstname.lastname@example.org prior to initiating any arbitration proceeding. If Avail is unable to resolve any such claim with you (except for any issues related to or arising from an applicable Avail insurance policy), you and Avail agree that you are each waiving the right to a trial by jury or to participate as a plaintiff or a class member in any class action, class arbitration, or other representative proceeding. Additionally, you and Avail each agree in the following arbitration provision (the “Arbitration Provision”) to resolve those disputes through binding, individual arbitration, rather than through the court system. Arbitration is less formal than a lawsuit in the court system and uses a neutral arbitrator or panel of arbitrators instead of a judge or jury.
IMPORTANT: You and Avail agree that any arbitration will take place on an individual basis, AND NOT as a plaintiff class member in any purported class action or representative proceeding. Further, unless both you and Avail agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
You and Avail agree to arbitrate all disputes and claims between the parties when more informal methods of dispute resolution have failed. This is intended to be interpreted in the broadest extent possible.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
If you would like to arbitrate, you must first send, by mail, a written notice of dispute (a “Dispute Notice”) to Avail. Any Dispute Notice to Avail must be sent to:
Avail Car Sharing Service
Attn: Legal Intake Unit
2775 Sanders Road
Northbrook, IL 60062
The Dispute Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Avail and you do not reach an agreement to resolve the claim within 60 calendar days after the Dispute Notice is received, you or Avail may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Avail or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Avail is entitled.
The arbitration will be governed by the Consumer Arbitration Rules (the “AAA Rules”) in effect at the time the Dispute Notice is received by Avail of the American Arbitration Association (“AAA”), as modified by this Arbitration Provision, and will be administered by the AAA. The AAA Rules are available online at adr.org, or by calling the AAA at (800) 778-7879.
The arbitrator is bound by the terms of this Arbitration Provision.
Unless Avail and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, AAA will determine a location. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision that explains the essential findings and conclusions on which the award is based.
Your responsibility to pay any AAA filing, administrative, and arbitrator fees will be set forth in the AAA Rules. However, if your non-frivolous claim for damages does not exceed $75,000, Avail will promptly reimburse you for all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your demand for arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
The arbitrator may make rulings and resolve disputes regarding the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s merit-based award.
In arbitration, if you prevail, you are entitled to recover attorneys’ fees to at least the same extent as you would be entitled to do so in court or as otherwise required by applicable law. In similar circumstances where Avail prevails, Avail will not seek attorneys’ fees from you. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The arbitrator’s decision will be final and binding on all parties. An arbitrator’s decision and subsequent court judgment will have no effect as far as matters addressing issue preclusion are concerned.
If any portion of this Arbitration Provision is found to be unlawful for any reason, three things will happen: first, the unlawful provision will be severed from this Arbitration Provision; second, severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of the Arbitration Provision or the parties’ ability to compel arbitration of any remaining claims on an individual basis; and third, to the extent that any claims must proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. This Arbitration Provision will survive termination of this Agreement.
If you do not wish to agree to arbitration and to waive your right to all other available resolution processes, you may opt out of this mandatory arbitration and class action waiver provision by notifying Avail within 30 calendar days of your acceptance of this Agreement by sending a notification that includes your name, mailing address, and the email address you used to sign up for a Service account via electronic mail to ArbitrationOptOut@availcarsharing.com.
Ownership of Avail Content. All written content prepared and posted by Avail and the Services design, layout, look, appearance, and graphics on the Services, as well as the trademarks, service marks, and logos contained on the Services (“Avail Content”) are owned by or licensed to Avail and are subject to copyright, trademark, and other intellectual property rights under United States and foreign laws and international conventions. Avail reserves all rights not expressly granted in, and to, the Services and the Avail Content.
License to the Services. Except as otherwise provided in this Agreement, no part of the Services and no Avail Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use, without our prior express written consent. On the condition that you comply with all your obligations under this Agreement, Avail grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Services for personal use or your internal business purposes. Any use of the Services in excess of this license is strictly prohibited and constitutes a breach of this Agreement, which may result in the termination of your right to access and use the Services. Your access to the Services is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any content or features we provide on the Services without notice.
User Content. We may, in our sole discretion, permit you to post, upload, publish, submit or transmit content through our Services such as photographs of you and your vehicle(s), reviews, feedback, and descriptions of your vehicle or trip. By making available any content on or through the Services, or through Avail promotional campaigns, you hereby grant to Avail a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such content on, through, by means of or to promote or market the Services. Avail does not claim any ownership rights in any such content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such content. Avail further reserves the right, but is under no obligation, to monitor, delete or modify any of your content that it deems offensive, defamatory, inappropriate, advertising, illegal, off-topic or otherwise violates this Agreement.
Copyright Protection. We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the US Digital Millennium Copyright Act and similar laws. If you think a user is violating your copyright(s), please contact us 877-447-9403 or email@example.com
Disclaimers. Avail enables vehicle sharing between Owners and Drivers. Avail does not provide vehicle rental services. Avail is not responsible for any of the acts or omissions of any third party, including, without limitation, the users of its Services, vehicle manufacturers, or any third-party service provider.
The Services are provided “as is” without warranties of any kind, express or implied. To the extent permitted by applicable law, Avail explicitly disclaims any warranties of merchantability, fitness for a particular purpose, quiet enjoyment, or non-infringement, and any warranties arising out of course of dealing or trade usage.
Avail makes no warranty that the Services, including, but not limited to, the listing and/or any vehicle, will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Avail makes no warranty regarding the quality of any listings, vehicles, Owners, Drivers, the Services, or any content or the accuracy, timeliness, truthfulness, completeness, or reliability of any content obtained through the Services. No advice or information, whether oral or written, obtained from Avail or its service providers or through the Services or content, will create any warranty not expressly made herein.
Limitation of Liability and Waiver. To the extent permitted by applicable law, you waive all rights you have to sue or make claims against Avail and its respective affiliates, directors, officers, agents, or employees (collectively, the “Avail Parties”) and any Avail user(except for transactions where the Owner provides their own commercial insurance or protection) for any damages or losses arising out of or in connection with your use of the Services, including, without limitation, a vehicle not being available when it was supposed to be, any malfunction of or deficiency in a vehicle, any breach of warranty or other obligation by any manufacturer or third party, or any personal injury or property damage suffered by you or any of your passengers, and, in the case of the Avail Parties, any actions or inaction of the Owner. Neither Avail nor any other party involved in creating, producing, or delivering the Services will be liable for any incidental, special, exemplary, or consequential damages, including, without limitation, lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure, the cost of substitute products or services, the use or inability to use the Services, or from your listing or booking of any vehicle via the Services, whether based on warranty, contract, tort (including negligence) product liability, or any other legal theory.
Except for our obligations to pay amounts to any applicable Owner or Drivers pursuant to this Agreement including an approved payment request or claim under a protection package or applicable insurance policy, in no event will Avail or its insurer’s aggregate liability arising out of or in connection with this Agreement or your use of the Services, exceed the greater of the amounts you have paid or owe for bookings via the Services as a Driver in the twelve-month period prior to the event giving rise to the liability, or if you are an Owner, the amount earned by you in the 12 month period prior to the event giving rise to the liability, or $100, whichever is higher.
Indemnification from you. To the extent permitted by applicable law, you agree to release, defend, indemnify, and hold Avail and its affiliates, officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Services or your breach or violation of this Agreement; your user content; your interaction with any user, booking of a vehicle, or creation of a listing for a vehicle; or the use, condition, or trip, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential, or otherwise) of any kind arising in connection with or as a result of a booking, sharing, or use of a vehicle.
Liquidated Damages for Services Abuse. You acknowledge that the actual damages likely to result from using the Services to engage in unauthorized transactions (e.g., using Avail to find a Driver or vehicle, and then completing a reservation or related transaction partially or wholly independent of Avail, in order to circumvent the obligation to pay any Avail Fees) are difficult to estimate and would be difficult for Avail to prove. You will pay Avail $2,500 as liquidated damages (and specifically not as a penalty) to compensate Avail for any such conduct.
About the Avail Platform. Avail is not a rental car company. It does not own a fleet of vehicles and is not in the business of renting vehicles to the public. Avail is in the business of providing an online platform where Owners and Drivers can meet and share vehicles amongst themselves subject to this Agreement.
Avail is neither an insurance company nor an insurance agent. Avail has obtained commercial liability and physical damage insurance to cover transactions through the platform to the extent required by applicable law. If you receive protection under our insurance, coverage is provided by a third-party insurer, and you agree to cooperate with the insurer regarding any claim made by you or involving you or your vehicle.
Non-Discrimination and Non-Harassment Policy. Avail users agree to treat all fellow users with dignity and respect. If you have a dispute regarding a transaction that you cannot resolve amicably, you will contact Avail to assist with resolving the dispute. You will not harm or threaten to harm Avail users and will refrain from any of the following conduct:
treating anyone differently based on any personal characteristics including, without limitation, their race, religion, gender, nationality, or sexual orientation. Discrimination of any kind is not tolerated;
“stalking” or harassing any other Avail user or collecting or storing any personally identifiable information about any other user other than for purposes of transacting as an Owner or Driver in accordance with this Agreement;
engaging in physically or verbally abusive or threatening conduct; or
transmitting, distributing, posting, or submitting any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information, or credit, debit, calling card, or account numbers.
While we may take actions to verify Owner identities and descriptions and information regarding vehicles available via the Services, Avail does not endorse any Owners or their background, any Owner content, or vehicles made available for use. You are solely responsible for your interactions with other users. We reserve the right, but have no obligation, to monitor disputes between you and other users. While we may help facilitate successful transactions and the resolution of disputes, we do not guarantee the quality, safety, truth, or accuracy of any user content, or other services or transactions available via the Service.
Text and Telephone Communications with You. In order to contact you more efficiently, we may at times contact you via phone or email, or using text messages or autodialed or prerecorded message at your telephone number(s). We may place such calls or texts to confirm your signup; remind you of upcoming reservations, provide notices regarding your account or account activity; investigate or prevent fraud; collect a debt owed to us; or communicate urgent messages. You agree that we, or our service providers, may contact you using text messages and autodialed or pre-recorded message calls to carry out the purposes we have identified above. We may share your phone number(s) with service providers with whom we contract to assist us in pursuing these interests, but will not share your phone number(s) with third parties for their own purposes without your consent. Standard telephone minute, text message and data charges may apply. Your mobile carrier is not liable for deleted or undelivered messages. Message frequency varies. Message and data rates may apply. Consent is not a condition of purchase and can be revoked at any time.
No Agency. Avail does not appoint you or any other user as its employee, mandatory, legal agent, or form any kind of legal partnership or joint venture. You are not authorized to make any commitments on behalf of Avail, and Avail will not make commitments on your behalf, except as contemplated by Services or expressly stated in this Agreement.
Applicable Law. The validity, interpretation and construction of this Agreement will be governed by the laws of the State of Illinois without regard to its conflict of law provisions.
Exclusive Venue. You agree that (a) if you elect to opt out of arbitration or (b) with respect to any dispute not resolved pursuant to the Arbitration Provision, the exclusive venue for any dispute between the parties to this Agreement shall be a local, state or federal court situated within the city of Chicago and/or Cook County, Illinois.
Termination. You may discontinue your use of the Services and Avail may terminate your access to the Services and remove any listings for any reason or no reason to the maximum extent permissible under applicable law. Termination of access to the Services will not release either party from any obligations incurred prior to the termination. Avail may retain and continue to use any information, including but not limited to photography, previously provided by you. Termination of this Agreement will not have any effect on the disclaimers, waiver or liability limitations, or legal disputes provisions under this Agreement and/or any fees due, and all of those terms will survive any termination of this Agreement.
No Transfer or Assignment. Except as otherwise provided herein, Drivers and Owners agree that nothing in this Agreement constitutes an actual or purported transfer or assignment of any right or interest in a vehicle shared through the Avail Services.
Miscellaneous. This Agreement states the entire understanding between you and Avail concerning your access to and use of the Avail Services and supersedes any earlier verbal or written communications between us. With the exception of appointing a custodian to manage your vehicles on your behalf, you may not delegate your legal obligations or transfer any of your rights, in whole or in part, to any third party without the written consent of the Avail. You will remain responsible for your obligations hereunder in any event. If any provision of this Agreement is construed to be unenforceable, the remaining provisions will not be affected and will continue in full force and effect. An Avail director or officer must agree to any modification or waiver of any term of this Agreement in writing. Avail’s failure to exercise any right under this Agreement will not constitute a waiver of any other right Avail may have. Headings are for reference purposes only and do not limit the scope or extent of such Section.
This section also applies if you share your vehicle through the Avail Services:
You must always use your account and the Services in compliance with this Agreement, applicable law, regulations, and ordinances, and all other policies and standards provided to you by Avail. As an Owner, you commit that you will, at the time indicated on every applicable reservation of your vehicle, provide the reserved vehicle to a Driver. Each vehicle you register on the Services must meet the following minimum eligibility requirements (the “Vehicle Eligibility Requirements”):
You acknowledge that it is your sole responsibility to ensure that your vehicle meets the minimum requirements set forth above. These minimum requirements are further detailed below. You also acknowledge that Avail, in Avail’s sole discretion, may (but is under no obligation to) review or inspect any vehicle or information about such vehicle that you register to assess whether the minimum requirements have been met.
In connection with your use of the Services, you agree that you will not engage in any of the following prohibited conduct:
Information Given at Registration. When you sign up for Avail, you will identify passenger vehicle(s) that you want to list for sharing through the Services. Each vehicle must meet our Vehicle Eligibility Requirements. You may only use the Services in connection with vehicles that you own and have all the necessary rights and express permissions to share for compensation.
Vehicle Availability. Once a trip is booked, you must make the vehicle available or deliver the vehicle as expected by the Driver. If you offer the Driver the option to pick up your vehicle at a specified location, you must list the location of the vehicle accurately on the platform and ensure that the vehicle is available at that location at the beginning of the reservation period.
Trip Fees. For certain reservation locations, we may set the trip fee amount. If we do not determine the trip fee amount, you will have the ability to set the vehicle’s pricing as you choose. Avail will pay you the amount collected from those who book your vehicle, less the applicable fees payable to Avail. To the extent you owe Avail money for any reason, Avail reserves the right to deduct those amounts from your payment.
Your Vehicle Must be Regularly Inspected and Maintained. You are required to regularly check your vehicle for any maintenance issues that could impact safe operations. You promise that, at all times, your vehicle will be in safe and roadworthy condition, in good mechanical condition, and in full compliance with all applicable inspection, registration and safety requirements. You will only list vehicles with a clean, non-salvaged, non-washed, and non-branded title. You agree to respond to any applicable recall or similar safety notices and to complete any recommended action before allowing your vehicle to be booked after a recall notice has been issued. In addition, if Avail believes that your vehicle does not conform to the Vehicle Eligibility Requirements and any other reasonable standards, Avail reserves the right to remove or decline listing your vehicle until those concerns have been resolved. Avail may, at its discretion, undertake efforts to review the safety of vehicles booked through the platform.
Safety Recall Obligations. If you have received notice of a safety recall on your vehicle, you must not make the vehicle available on the Services until the safety recall repair has been made. If you receive a notice of a safety recall while your vehicle is on the Services, you must notify us and remove the vehicle from the Services as soon as practically possible until the safety recall repair has been made. If you receive a notice of a safety recall while your vehicle is on the Services and it is being used by a Driver, you must notify Avail about the safety recall as soon as practically possible, and, after your vehicle has been returned, remove your vehicle from the Services until the safety recall repair has been made.
Light Maintenance Services and Safety Review Authorization. Avail is under no obligation to conduct a safety review of your vehicle. However, if Avail does so, you also authorize Avail to undertake certain light maintenance services to ensure your vehicle is in safe operating condition. Specifically, you authorize Avail to check and fill your vehicle tires to the manufacturer recommended PSI level and to check and top off windshield wiper fluid if it is too low. You also authorize Avail to check engine oil levels, coolant levels, and any other essential fluid levels. Avail may declare your vehicle unfit for the Avail platform until you remedy any applicable issues.
Telematics Devices. To the extent permitted by applicable law, you authorize Avail to monitor any Drivers’ use of your vehicle through remote tracking and telematics devices. This may include the temporary installation of a telematics device into your vehicle’s on-board diagnostic port (“OBD-II”) while your vehicle is listed on the Avail platform. If you already have a device installed in your OBD-II port, the previously installed device may be removed by Avail during the time that your vehicle is listed on the Avail platform. Avail is not responsible for any issues or losses of discounts or incentives associated with insurance or other services that may be affected due to the disconnection of your previously installed OBD-II device. It is your sole responsibility to inform any applicable third party that may need to know about the temporary sharing of your vehicle with the previously installed OBD-II device. Avail will undertake reasonable efforts to ensure that the Avail-installed OBD-II device is removed from your vehicle after your vehicle is no longer listed on the Avail platform. However, as part of your post-listing inspection, please check to ensure that the Avail-installed OBD-II device is no longer installed and inform Avail is the OBD-II device was inadvertently left in your vehicle after the vehicle was removed from the Avail platform.
Infotainment Data. If a Driver of your vehicle accesses the infotainment system in your vehicle and neglects to remove any personal data (e.g. contacts, saved addresses, phones connected via Bluetooth), you promise not to access and will delete such data.
Photographic Images. You alone are responsible for using the images in connection with your Avail listing. You warrant that you are the rightful owner of any images you post and are allowed to use them. You will cease using the images if they no longer accurately represent your vehicle. All intellectual property rights to any material you have provided through the Services shall remain your sole and exclusive property. You grant Avail and its service providers worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such material for activities related to providing Services under this Agreement.
You hereby acknowledge that Avail may use the images for advertising, marketing, commercial, and other business purposes in any media or platform, whether in relation to your listing or otherwise, without further notice or compensation. Further, you hereby waive all rights to royalties or moral rights you may have in the images as it may pertain to the use of the images on the Services.
Incident Reporting. Please inspect the vehicle promptly upon return by a Driver. If you believe that a Driver has caused any damage to your vehicle, you are required to report that damage to us as soon as you become aware of it and no later than seven days after the end of the reservation. You agree to make the vehicle available for inspection and to cooperate in the investigation of the damage. Based on the investigation, we or our insurer will reasonably determine whether the damage occurred during the reservation period. Any incident not involving damage covered by insurance (e.g. damage to interior not caused by an accident) will be evaluated by Avail to determine whether the Driver should be financially responsible. Any loss subject to insurance coverage (e.g. damage from a covered collision) will be reviewed by the insurer providing coverage in accordance with the terms and conditions of any applicable insurance coverage. If Avail is not given prompt notice as described in this paragraph, or if you do not cooperate in the investigation by the insurer, we may not be able to determine the cause. In that case, you agree that we and our insurer may decline any financial responsibility for such damage.
Physical Damage. During each reservation period, your vehicle may be eligible for coverage under commercial insurance procured by us from our insurer, unless you decline our insurance. In the event of a loss that is eligible for coverage under our insurance, Avail, our insurer and its adjusters will, at their option, pay you either the reasonable and actual expenses of repair of the vehicle or the actual cash value (“ACV”) of your vehicle if the expected repair costs are high enough that the insurer elects to pay ACV. If the insurer chooses to pay you the ACV for your vehicle, you will be required to transfer title to the vehicle to the insurer or its agent. The standard for the vehicle’s ACV will be as determined by the insurer in compliance with applicable law.
Personal Property & Wear and Tear Policy. Avail and our insurer(s) are not responsible for any personal property, including any aftermarket installations that are taken from your vehicle or damaged during a reservation period. We recommend that you remove all personal property before making the vehicle available for a reservation. In addition, you should expect normal wear and tear on your vehicle in connection with your participation in the Services. Avail, our insurer(s), and/or any Drivers of your vehicle are not responsible for, and will not reimburse you for, normal wear and tear to your vehicle. You acknowledge the following is defined as “normal wear and tear” when using the Avail Services. Avail reserves the right to modify the definitions of “normal wear and tear” upon posting of such changes in this Agreement. “Normal wear and tear” includes the following:
Other Insurance and Legal Matters. Where permitted by law and where you are eligible for coverage under our insurance, you hereby appoint Avail as your representative for the purpose of filing insurance claims, receiving insurance payments, or otherwise administering an applicable insurance policy. You also hereby appoint Avail as your representative to work with law enforcement, Drivers, or private entities to recover unreturned or impounded vehicles. You promise to maintain current and valid registration information and proof of insurance/financial responsibility in your vehicle during every reservation period. Avail may obtain insurance through a third-party provider, or may choose to self-insure (meaning Avail takes on all or part or all of the insurance obligations itself, subject to all applicable laws and regulations). You agree to provide Avail with information regarding your personal auto insurance policy’s coverage as may be requested. You must inform Avail promptly in the event information previously provided changes.
Indemnification by Avail or its insurer. If you are eligible for coverage under Avail’s insurance, in the event of any claim for a loss or injury that occurs during the use of your vehicle by a Driver or by Avail itself, Avail or our insurer(s) will defend and indemnify you against such claims as set forth in our insurance and as required by applicable law. In connection with any indemnifiable claim, you are required to give Avail or our insurer(s) prompt written notice of the claim, allow Avail sole control over the defense of the claim, and provide Avail reasonable cooperation in its defense of the claim, at Avail’s expense. If Avail or our insurer(s) reimburses you for a lost or damaged vehicle and you later receive payment for some or all of your vehicle from a third party (e.g. your personal auto insurance company or through court-ordered restitution), you must reimburse Avail any monies received from that third party in an amount up to the funds provided to you by Avail or our insurer(s).
Missing Vehicles. If your vehicle goes missing, is not returned, or is stolen during the reservation period, you must immediately contact an Avail representative and follow his or her instructions, including cooperating with Avail, the police, and any other authorities related to the investigation of the theft. You must file a police report within 24 hours of learning the vehicle has been stolen or is missing.
Taxes and Fees. As an Owner, you are responsible for determining your obligations to report and remit any applicable Federal, state, local or other taxes. You acknowledge that certain governmental entities may impose taxes and/or fees on your use of the Avail Services and platform, including income taxes, which may require Avail to collect tax information from you, withhold taxes from payouts to you, or both. If you fail to provide Avail with documentation that we determine to be sufficient to relieve our obligation (if any) to withhold taxes from payouts to you, we reserve the right to freeze all payouts, withhold those amounts as required by law, or to do both, until resolution. It is your sole responsibility to comply with any tax requirements applicable to you. We encourage you to consult with your personal tax advisor, because each individual’s situation is different. Where legally required, Avail will include certain taxes and fees in the calculation of the total trip cost. Additionally, where legally required by marketplace facilitator law, marketplace provider laws, or other similar laws, Avail certifies that it will collect and remit tax on behalf of an Owner, when applicable
This section also applies if you book a vehicle using the Services.
You agree that you will always use your account and the Services in compliance with this Agreement, applicable law, and any other policies and standards provided to you by Avail. As a Driver, you commit that you are over the age of 18, will remain a legally licensed driver (with an fully valid, unrestricted license) who will reasonably operate and maintain any used vehicles, and will return the vehicle on time in essentially the same condition that you received it, subject to normal wear and tear. You will not permit any other person to drive a vehicle you use through the platform unless they are authorized by us as an approved Driver and they satisfy our age requirement and user criteria.
In connection with your use of or access to the Services, you agree that you will not engage in any of the following prohibited conduct:
Driver Responsibility for Vehicle Damage. To the extent permitted by applicable law, you are liable for any loss of or damage to the vehicle, even if someone else caused it or the cause is unknown, whether due to theft, fire, hail, flood, collision, vandalism, or any other cause, subject to limitations imposed by the law of the jurisdiction where the vehicle is reserved. Your liability will extend to the full value of the vehicle, plus actual towing and storage charges, loss of use, and diminution in value (which is the difference between the value of the vehicle before the damage and the value of the vehicle after the damage, regardless of whether the vehicle is repaired or not), plus any out of pocket expenses incurred by us as a result of the loss of or damage to the vehicle, a reasonable administrative fee and pro-rata license plate fees, all as allowed by law. Avail makes no representation that your personal insurance will cover any loss. You should check with your own insurance carrier. If you make unauthorized repairs to the vehicle, you agree to pay any cost to restore the vehicle to the condition of the vehicle at the time the reservation began. You agree to pay us any amount not covered by any insurance, credit, or charge card or other coverage you may have. However, your responsibility will not exceed those damages permitted by applicable law.
Fees. You are responsible for paying all fees when they come due. You authorize Avail to charge any payment methods or stored payment credentials associated with your account for all amounts due, including but not limited to, security deposits, processing fees, fees, fines/penalties, deductibles, and damages, and you furthermore represent and warrant that you have the right to make this authorization. You will be responsible for all of the costs relating to any citations and fines (e.g. tolls, parking tickets, towing fines) incurred during the reservation period. You acknowledge that Avail may require and hold a deposit as part of the reservation of a vehicle.
The base fees charged may include the following:
Before completing any reservation, you will be presented with the booked cost of your trip. This will reflect the full cost of your trip unless you incur additional expenses including excess mileage, parking tickets, extensions costs, cleaning fees, etc. based on your trip and whether or not you extend your trip.
Collection of Fees. You authorize Avail to process all charges in any way incurred by you in connection with any vehicle reservation. When you provide Avail a payment method, you authorize Avail, or any third-party service providers acting on Avail’s behalf, to store your payment credential for future use in the event you owe Avail any money. You authorize Avail to use stored payment credentials for balances, including but not limited to, trip costs, additional costs, fines and fees and related administrative fees. Avail and its authorized representatives will employ all legal methods available to collect the amounts, including the engagements of collection agencies or legal counsel. In addition, you may be subject to late fees. Avail, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. You hereby agree that all communication in relation to delinquent accounts may be made by electronic mail or by phone, as provided to Avail by you. Such communication may be made by Avail or by anyone on its behalf, including but not limited to a third-party collection agent. You promise to notify us if any of the credit cards you provided to us for payment are lost, stolen or invalidated, or if you suspect that any of them are being used without your permission.
Insurance. Most Owners participating in Avail cannot offer commercial liability insurance to you, so Avail has obtained, via its affiliate, Allstate Insurance Company, commercial insurance that provides liability insurance to you. In the unlikely event of a conflict or inconsistency between the explanation of insurance coverage in this Agreement or through the Services and the terms of the applicable insurance policy, the insurance policy language controls. You agree that in the event damage is reported, Avail may immediately charge you up to the amount of any applicable deductible set forth in the responding insurance policy, if the damage equals or exceeds the deductible and to the extent permitted by applicable law. Nothing in this Agreement is intended to limit your responsibilities or Avail’s legal rights in connection with your use of the Services.
Drivers are charged for this insurance. In certain locations, the rate applicable to insurance is set out separately on your invoice. In locations where you may receive an all-inclusive rate, the applicable insurance rate is:
Denver Airport: $22.00 per 24-hour period
Chicago O’Hare Airport: $18.23 per 24-hour period
Returning the Vehicle. You agree to return the vehicle to the designated location on the date and time listed at the time of booking, or sooner if we request. If you fail to return the vehicle or any equipment and accessories on time, you will be charged an additional use fee. Furthermore, we have the right to notify law enforcement, in accordance with applicable law, that the vehicle is stolen or missing if you fail to return it on the date and time due without contacting us. We also have the right to monitor any vehicle you use through remote tracking and telematics devices or otherwise. To the extent permitted by applicable law, we may also locate, disable, and repossess the vehicle at your cost and without notice to you if it is being used in violation of the law, illegally parked, apparently abandoned, overdue or is being used in breach of this geographic driving restriction of the reservation, the payment obligations or other terms of this Agreement.
Telematics Devices. To the extent permitted by applicable law, you authorize Avail to monitor your use of any vehicle you use through remote tracking and telematics devices, including through the use of an on-board diagnostic device (“OBD-II”). The OBD-II device may track the used vehicle’s location, speed, hard braking, and other driving-related data. This data is collected by Avail’s corporate affiliate Arity 875, LLC. To read more about Arity’s data collection practices, please review www.arity.com/privacy. Please note that the owner of the vehicle may also have the capability to track the location and use of the vehicle through means the owner controls and that Avail does not facilitate, and you agree to not hold Avail or any of its affiliates responsible for any issues, damages, or claims that may result from such.
Infotainment Data. IF YOU CONNECT YOUR PHONE OR OTHER INTERNET-CONNECTED DEVICE (YOUR “DEVICE”) TO A VEHICLE, YOUR PERSONAL CONTACTS, COMMUNICATIONS, LOCATION OR OTHER DIGITAL DATA MAY BE DOWNLOADED. PRIOR TO RETURNING A VEHICLE, YOU SHOULD ENSURE THAT YOU HAVE DELETED ALL PERSONAL INFORMATION FROM THE VEHICLE’S SYSTEMS THAT MAY HAVE BEEN COLLECTED FROM YOUR DEVICE. IF YOU FAIL TO DELETE SUCH INFORMATION, THAT PERSONAL DATA MAY BE ACCESSIBLE TO FUTURE DRIVERS AND/OR THE OWNER OF THE VEHICLE.
We are not Responsible for Lost Personal Property. Nether Avail nor the vehicle Owner is responsible for any loss or damage to any of your or your passenger’s property left, stored, or transported in or on the vehicle, our premises or in or on any other vehicle belonging to us. You agree to indemnify us and hold us harmless from any claim for loss of or damage to any personal property connected with the reservation.
Prohibited Uses of the Vehicle: Car sharing is intended for use on public roads by the Driver using the vehicle. The vehicle may not be used:
Use of the Vehicle. When you book a vehicle from an Owner through Avail, you must use the vehicle only for your personal use and not for any commercial purposes (e.g. you may not drive other passengers or property for a fee such as through Uber, Lyft, or other ridesharing platform). You may not access a vehicle until the beginning of your reservation period and you must return the vehicle on time and in the correct location. You must exercise reasonable care in your use of the vehicle. You are required at all times to operate the vehicle safely, and in compliance with all applicable laws, including without limitation, speed limits and prohibitions on impaired or distracted driving. In the event Avail has any concern about your use of a vehicle, Avail may terminate your reservation at any time and require the return of the vehicle, including recovering the vehicle on behalf of the Owner. You are required to wear seat belts during the operation of the vehicle and to require that passengers wear seat belts. You are also required to meet any laws or regulations concerning car seats and other protections for children. You will be fully financially responsible for any claims, loss, or damage related to your misuse of a vehicle, and your protection package may be voided. Drivers also acknowledge that using a vehicle in a prohibited manner may exclude the operation of the vehicle from coverage under Avail’s insurance.
Condition of the Vehicle. You understand that third parties own the vehicles offered through the Services. While each Owner is responsible for complying with all legal requirements and maintaining their vehicle(s) in safe and roadworthy condition, you should always complete a visual inspection before you begin your use of any vehicle. If you find damage in your initial inspection, you should upload photos of such pre-existing damage at the start of your reservation to ensure you are not held responsible for that pre-existing damage. If you find damage on your initial inspection and fail to report it, Avail, third-party claims adjusters, or insurance carriers, may assume that the damage occurred during your reservation period. If, after your initial inspection, you have any reason to believe that the vehicle is not safe to drive, please do not use the vehicle and contact the Avail team immediately at 877-447-9403.
Incident Reporting. Where you received or purchased insurance coverage when booking your reservation via Avail, you must immediately report any damage to the vehicle you are using to Avail at firstname.lastname@example.org or 877-447-9403. If there has been a collision, the incident should also be reported to the local authorities. You will need to use all reasonable efforts to secure evidence from any available witnesses and to provide Avail or third-party claims administrators with a written description of the incident and any other information requested, including identity and insurance information of any parties involved in the incident. You are also required to cooperate in any loss investigation conducted by Avail, third-party claims administrators, or insurers. After an incident, you may not continue to use the vehicle unless the vehicle is safe to operate and you have the explicit permission from Avail. Failure to timely report an incident or cooperate in an investigation may reduce or invalidate insurance coverage received via Avail.
Laws Regarding Car Theft. It may be considered a felony to fail to return a vehicle within a certain period of time after the reservation period has expired. The following conduct may result in the reporting of the vehicle you have booked as stolen to law enforcement, possibly subjecting you and any other driver to arrest, and civil and/or criminal penalties, and the denial of insurance coverage:
The primary Driver who books the reservation is responsible for any private investigation costs Avail deems necessary to recover a vehicle that is not returned. In addition, a $200 case administration fee will be imposed on the Driver if Avail and/or the Owner reports a vehicle as stolen to law enforcement due to it not being returned.
Repossession. Avail, a hired agent of Avail or the Owner may repossess any vehicle booked through the Services without demand, at the Driver’s expense, if the vehicle is not returned by the end of the reservation, is found illegally parked, apparently abandoned, or used in violation of applicable law or this Agreement.
Missing Vehicles. If a vehicle you have booked through the Avail Services goes missing and/or is stolen during the reservation period (or extension period), you must immediately return the original ignition key to the Owner; file a police report immediately after discovering the vehicle is missing or stolen, but in no event more than 24 hours after discovering it has gone missing; and cooperate fully with the Owner, law enforcement, Avail, and other authorities in all matters related to the investigation.
Payment. Flare users are charged at a per day rate that includes applicable taxes and insurance costs.
Deposit. When booking a Flare car, users are charged an initial $100 deposit. This amount is a deposit against the total cost of the booking. When the Flare booking has ended and the total payment required from the Flare user has been calculated, the Flare user will be charged the remaining total cost of the booking or refunded the applicable amount.
Rideshare vouchers. When a Flare user receives a rideshare voucher from Flare to return to the repair shop, the voucher covers a maximum expenditure of up to $100.
Occasional Drivers. When booking a Flare car, you may designate an alternate driver so long as that alternate driver is an occasional driver that would be covered under your personal automobile insurance policy.
Limited Availability. You acknowledge that during Flare’s initial pilot, Flare will have limited availability and may be offered only to potential users that fit certain criteria that may change from time to time.
Bookings over 30 Days. A standard booking with Flare has a maximum of 30 days. If you need a Flare booking for longer than 30 days, please make a request to the Flare customer service team to extend your booking, provided that you make a payment to Flare that covers all amounts owed for the initial 30 days.
If a Driver’s use of a vehicle begins in Colorado, the following provisions apply, and, to the extent the provisions conflict with the provisions above, will supersede those terms:
Additional Terms Applicable to Drivers:
OBD-II Device. You agree to indemnify and hold Avail harmless for any loss or damage to the OBD-II device while you or another authorized Driver is using the vehicle.
Driver’s License Information. You understand that Avail, while you are a user of the Services, will maintain information regarding your driver’s license, including, but not limited to, the license number, date of issuance, associated address, and full legal name.
This Addendum hereby modifies the insurance terms of this Agreement to be consistent with the law of the State of Colorado, including but not limited to, Colorado insurance laws, Peer-to-Peer laws, and minimum financial responsibility laws.
In accordance with Colorado law, Avail hereby discloses, and the Driver hereby acknowledges, that an automobile liability insurance policy issued to the Owner or the Driver for the shared vehicle does not provide a defense or indemnification for any claim asserted by Avail related to non-compliance with this Agreement or any other matter.
In accordance with Colorado law, Avail hereby discloses, and the Driver hereby acknowledges, that Avail’s insurance coverage on the Owner and Driver is in effect only during the sharing period and that the shared vehicle may not have insurance coverage for use of the shared vehicle by the Driver following termination of use of the vehicle by the Driver.
In accordance with Colorado law, Avail hereby discloses, and the Driver hereby acknowledges, that Avail has disclosed any and all insurance and/or protection package costs that are charged to the Owner or Driver.
In accordance with Colorado law, Avail hereby discloses, and the Driver hereby acknowledges, that the Owner’s personal automobile liability insurance might not provide coverage for a shared vehicle.
If a Driver’s use of a vehicle begins in Maryland, the following provisions apply, and, to the extent the provisions conflict with the provisions above, will supersede those terms:
Terms Applicable to All Users:
You acknowledge that you have read and understand the “Indemnification from you” section set forth above and acknowledge that any motor vehicle liability insurance policy covering the Owner or Driver does not provide a defense or indemnification for any claim asserted by Avail under the “Indemnification from you” section.
You acknowledge that the insurance coverage that may cover the Owner or Driver while using Avail is in effect only during the car sharing period and that, for any use of the shared car by the Driver after expiration of the reservation time, the Driver and Owner should contact the Driver’s or Owner’s respective insurers about insurance coverage.
You acknowledge that the insurance offered while using Avail may be exclusive for the Owner and primary for the Driver, but may be secondary for the Driver if the shared vehicle is used as a replacement vehicle, as defined in section 18.5-102(a)(2)(i) of the Transportation Article.
Rates and Fees.
You acknowledge that you understand the daily rates, fees, insurance costs, protection packages, and all other fees that may be charged as a user of Avail.
The following terms only apply if you install, access, or use the App on any device that contains the iOS mobile operating system developed by Apple Inc. (“Apple”). If you use the App on an Apple-manufactured device, and if there is any conflict between the terms in this Section and other terms in this Agreement, the terms in this Section will control.
Acknowledgement. You acknowledge that this Agreement is concluded solely between the Parties, and not with Apple. Avail, not Apple, is solely responsible for the App and the content thereof. You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the App (the “Usage Rules”), and in the event of any conflict, the Usage Rules shall govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
Scope of License. The license granted to you is limited to a non-transferable license to use the App on any Apple-branded products that you own or control as permitted by the Usage Rules.
Maintenance and Support. You and Avail acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The Parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Avail. However, you understand and agree that in accordance with this Agreement, Avail has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
Product Claims. You and Avail acknowledge that as between Apple and Avail, Avail, not Apple, is responsible for addressing any claims you may have, as limited by this Agreement, or claims of any third party relating to the App or your possession and/or use of the App, subject to Avail’s indemnification rights, including, but not limited to (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
Intellectual Property Rights. The Parties acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringe that third party’s intellectual property rights, Avail, and not Apple, will be responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required under this Agreement.
Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using the App.
Third-Party Beneficiary. The Parties acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.