Terms of service

 

 Welcome to Downing Avenue!  Throughout the site, the terms “DA”, “we”, “us” and “our” refers to Downing Avenue, LLC.  We offer this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated herein.  By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence  and you have given us your consent to allow any of your minor dependents to use this site.  If you do not agree to all the terms and conditions of these Terms, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of the Service or access to the website following the posting of any changes constitutes acceptance of those changes.

1.Our Services:

a. Products.  All features, content, availability, specifications, products and prices of products described or depicted within the Services are subject to change at any time without notice. Certain products may have limited quantities and are subject to return or exchange only according to our Returns & Exchanges Policy. The inclusion of any products at a particular time does not imply or warrant that these products will be available at any time. 


b. Accuracy of Content.  Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. We make all reasonable efforts to accurately display the attributes of our products and ensure that information is complete, accurate and up-to-date. Despite our efforts, the information provided within the Services may occasionally be inaccurate, incomplete, or out-of-date. We have made every effort to display as accurately as possible the color of the products. However, as the actual colors you see will depend on your personal computer equipment, we cannot guarantee that your monitor's display of any color will accurately reflect the color of the products upon delivery. We make no representation as to the completeness, accuracy, or currency of any information within the Services. For example, products may be unavailable, may have different attributes than those listed, or may carry a different price than what is stated. In the event of a pricing error or discrepancy with respect to products, we reserve the right to cancel any orders (or partial orders) for such products. 


c. Account.  In order to use certain  Services and/or purchase products, you may be required to create an Account and provide accurate, current and complete information in connection with your use of the Services (“Account “).  You agree to maintain and promptly update your Account information as necessary to maintain its accuracy. DA reserves the right to suspend or terminate access to and use of the Services, or any portion thereof, based on inaccurate or incomplete Account information.


i. You may control your Account and how you interact with the Services by changing the settings in your Account. By accessing the Services and/or setting up an Account, you consent to having these Terms provided to you in electronic form and that all Terms, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing. You acknowledge that when you sign up for our Services or provide any contact information, including an e-mail address or cellphone number in connection with that activity, or service (“Contact Information”), you agree that this action constitutes a purchase or inquiry establishing a business relationship with us. You expressly consent to our communicating with you about our products or Services using the Contact Information you provided to us. You also attest that you have the legal authority over any Contact Information that you provide to us and can provide us with the authorization to contact you. This means we may contact you, in person or by recorded message, by e-mail and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, or any other means of communication that your wireless or other telecommunications device may be capable of receiving.  If you do not want to receive such e-mail messages, you may opt out or change your preferences in your Account settings page. Opting out may prevent you from receiving e-mail messages regarding updates, improvements, or offers.

ii.  You may be asked to supply certain information relevant to your Transaction, including without limitation your credit card number, your credit card verification or other security code, the expiration date of your credit card, your billing address, and your shipping information. Any such information provided through DA website will be treated by DA in accordance with this agreement and privacy policy statement. Verification of information may be required prior to the acknowledgement or completion of any Transaction.  You represent and warrant that you have the legal right to use any credit card(s) or other payment means used to initiate any transaction.   DA reserves the right to, with or without prior notice, (a) to change product or service descriptions, images, references; (b) to limit the availability quantity of any product or service; (c) to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code, incentive offer or other promotion; (d) to prevent or prohibit any user or customer from making any or all Transaction(s); and/or (e) to refuse to provide any user or customer with any product or service. Price and availability of any product or service offered through DA website are subject to change without notice, and will be subject to DA refund and exchange policy in effect. You agree to pay all charges that may be incurred by you or on your behalf through the DA website, at the price(s) in effect when such charges are incurred, including without limitation all shipping and handling charges.  In addition, you remain responsible for any taxes that may be applicable to your Transaction(s).


d. Shipping.  When a product order is placed, it will be shipped to the address designated by you, as long as such shipping address is compliant with the shipping restrictions contained within the Services. 


e. Confirmation, Cancellation and Coupons.  While it is our practice to confirm online orders via e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order nor our confirmation of an offer to sell a product or service. We reserve the right, without prior notice and at any time: (a) to limit the order quantity on any product and/or to refuse fulfillment of any order  to any customer; (b) to discontinue any product or service; (c) to bar any user from making or completing a transaction; and (d) to limit or impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion.  We also may require additional information and/or verification of information prior to the acceptance and/or shipment of any order.  Partial shipment or partial cancellation of orders may occur.


f. Services Rules and Rules of Conduct:


i. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping;” (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; (iii) transmitting spam, chain letters, or other unsolicited e-mail; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including Account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, stealing or assuming any person’s identity (whether a real identity or nickname or alias), conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.  Furthermore, you may not use the Services to develop, generate, transmit or store information that: (A) infringes any third party’s intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Services, (D) performs any unsolicited commercial communication not permitted by applicable law; and (E) is harassment or a violation of privacy or threatens other people or groups of people.


ii. The Services contain confidential and trade secret information owned or licensed by DA, and you agree to take reasonable steps at all times to protect and maintain the confidentiality of such information.  The DA website is owned by and operated by DA. The contents of the DA website are copyrighted under United States copyright laws. Except as stated herein, none of the material on DA website may be copied, reproduced, distributed, republished, uploaded, displayed, posted or transmitted in any way whatsoever. Subject to your compliance with this Agreement, and solely for as long as you are permitted by DA to access and use the DA website. Modification of the materials, or use of the materials for any other purpose, whether commercial or noncommercial is a violation of DA copyright and other proprietary rights.


iii. By registering for an Account and/or placing an order, you represent that the Products ordered will be used only in a lawful manner and as intended by such manufacturer. DA expects users of the DA website to respect the law as well as the rights and dignity of others and you agree to comply with all applicable laws, rules, and regulations.  Your failure to comply with these rules of conduct may result in termination of your access to the DA website.


iv. We may, without prior notice, change the Services; stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.

 

2. Proprietary Rights:

The Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “DA Content”), and all intellectual property rights related thereto, are the exclusive property of DA and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any DA Content. Use of the DA Content for any purpose not expressly permitted by these Terms is strictly prohibited.  These Terms do not provide you with title or ownership of any Services or DA Content, but only a limited right to use the same solely upon the terms expressly set forth in these Terms.  

3. Payment:

DA uses a third-party payment processor (the “Payment Processor”) to handle credit card transactions. The processing of payments will be subject to the terms, conditions, and privacy policies of the Payment Processor in addition to these Terms. We are not responsible for errors by the Payment Processor. By utilizing the Services, you agree to pay us, through the Payment Processor, in accordance with the applicable payment term.  Except as otherwise expressly stated by DA, DA is not affiliated with operators of any third party websites that link to or are linked from the DA website.  DA expressly disclaims any responsibility for the accuracy, content, or availability of information found on third party websites that link to or are linked from the DA website. We cannot ensure your satisfaction with any products or services that are available through any third party site that links to or is linked from the DA website because these third party sites are owned and operated by independent entities. We do not endorse any of the products or services, nor have we taken any steps to confirm the accuracy or reliability of any of the information, made available through any third party sites. We make no representation or warranties as to the security of any information (including without limitation credit card and other personal information) that you may provide or be requested to provide to any third party, whether through such a third party site or otherwise.  YOU AGREE THAT YOUR USE OF THIRD PARTY SITES AND RESOURCES AND ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, SERVICES, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH SITES AND RESOURCES IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.

4. Refund policy:

a. Returns & Exchanges.

i. All our products are carefully inspected before they are shipped. We do not offer refunds if the item(s) arrive(s) without damage, nor do we offer refunds for items that have been used in any way.

ii. We will replace or refund products damaged during shipment if photographic proof of damage is submitted to us at ondowningavenue@gmail.com within seven (7) days of delivery.

iii. We offer free replacements for any incorrect items received or items that are defective or damaged. To be eligible for a free replacement, you must notify us of the incorrect, defective, or damaged item within seven (7) days of delivery by sending us an e-mail at ondowningavenue@gmail.com and we will send you instructions to complete your exchange. We require photographic evidence that you received the incorrect item or that it is defective.

iv. Additional items ineligible for refund:

      1. Sale Items (including items purchased with a Discount Code). 
      2. Customized Items. 
      3. Items marked “Non-returnable” on the product page. 
      4. Gift Cards. 
      5. Lost or stolen items.
      6. Any item that has been used or is not in its original condition, is damaged or missing parts for reasons not due to our errors.


vi. To complete your replacement, we require a receipt or proof of purchase.

b. Refunds.

i. Once your return is received and inspected, we will send you an e-mail to notify you that we have received your returned item. We will also notify you of the approval or rejection of your refund.


ii. If the return is approved, then your refund will be processed, less the return shipping fees, and a credit will automatically be applied to your original method of payment, within five-to-ten (5-10) business days. Please see our Return Process below.


iii. Late or missing refunds.

      1. If you haven’t received a refund yet, first check your bank account again. Then contact your credit card company, it may take some time before your refund is officially posted. 
        Next contact your bank. There is often some processing time before a refund is posted. 
      2. If you’ve completed the steps in step one above and you still have not received your refund yet, please contact us at ondowningavenue@gmail.com and we will personally assist you.

 c. Return Process.

i. We do not accept returns for items without damage, nor do we offer refunds for items that have been used in any way.

ii. We reserve the right to modify our Returns & Exchanges policies at any time.

 5. Privacy:

We care about the privacy of our clients. DA’s privacy practices are governed by DA’s privacy policy, the most updated copy of which can be found on our website under Privacy Policy. The Privacy Policy does not cover the information practices exercised by any third parties that DA does not own or control.  We do not share, sell or distribute any buyer’s information.

6. Security: 

DA cares about and takes very seriously the integrity and security of your personal information. We take commercially reasonable administrative, physical and electronic measures designed to safeguard and protect the Services, content, materials and data therein from unauthorized access, use, modification, deletion and/or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

7. Third-Party Links and Information:

The Services may contain links to third-party materials that are not owned or controlled by DA. DA does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Services, you do so at your own risk, and you understand that these Terms and DA’s Privacy Policy do not apply to your use of such sites. You expressly relieve DA from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that DA shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

8. Indemnification:

 You agree to defend, indemnify and hold harmless DA (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers), from all claims, demands, losses, liabilities, costs, expenses, obligations and damages of every kind and nature, known and unknown, including reasonable legal fees, arising out of (a) your use of and access to the Services in violation of these Terms; (b) your violation of any law or the rights of a third party; or (c) any use of the products that caused injury or damage to yourself or a third party. This indemnification obligation will survive the termination of these Terms and your use of the Services.  You will indemnify and hold DA harmless from and against any and all claims, actions, demands, causes of action and other proceedings arising from or relating to any of the following (“the claims”) (a) your use of, inability to use, or activities in connection with the DA website; (b) any violation of this Agreement or any other DA terms, conditions or policies by you or through any account you may have with the DA website; (c) any transaction; (d) any allegation that any Submission or other materials that you make available through the DA website infringe or otherwise violate the intellectual property, privacy  or other rights of any third party; or (e) your violation of any rights of any DA website visitor, user or customer, or any other third party; and you agree to reimburse the DA entities on demand for any damages, losses, costs, judgments, fees, fines and other expenses they incur (including attorney’s fees and court costs) as a result of any claims.

9. No Warranty: 

a. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. DA, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 

b. DA MAY ALTER, SUSPEND, ADD TO, OR DISCONTINUE THE SERVICES IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON, WITHOUT NOTICE OR COST. BY HAVING ACCESS TO THE SERVICES, YOU AGREE THAT DA AND PARTNERS MAY PLACE ADVERTISEMENTS ON THE SERVICES. THE TYPES OF ADVERTISEMENTS ARE SUBJECT TO CHANGE. 

c. IF YOU ARE DISSATISFIED WITH THE SERVICES AND/OR ANY PRODUCTS PURCHASED THROUGH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ITS USE.  

d. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

                i. THE DA WEBSITE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.  DA MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY MATERIAL ON OR ACCESSIBLE THOUGH THE DA WEBSITE. ANY RELIANCE ON OR USE OF SUCH MATERIALS SHALL BE AT YOUR SOLE RISK. DA MAKES NO REPRESENTATION OR WARRANTY. (A) THAT THE DA WEBSITES WILL BE AVAILABLE ON A TIMELY BASIS, OR THAT ACCESS TO THE DA WEBSITES WILL BE UNINTERRUPTED, ERROR FREE OR SECURE; (B) THAT DEFECTS OR ERRORS WILL BE CORRECTED; OR (C) THAT THE DA WEBSITE OR THE SERVERS OR NETWORKS THROUGH WHICH THE DA WEBSITE IS MADE AVAILABLE ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.   While we try to maintain the integrity and security of the DA website and the servers from which the DA websites are operated, the DA website may include inaccuracies, errors and materials that violate or conflict with this agreement. Additionally, third parties may make unauthorized alterations to the DA website.  If you become aware of any unauthorized third party alteration to the DA website, contact us at ondowningavenue@gmail.com with a  description of the material(s) at issue and the URL location on the applicable DA website where such material(s) appear.


10. Limitation of Liability: 

a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DA, ITS AFFILIATES, AGENTS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF DA HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.  

b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DA ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES OR PRODUCTS;  (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS  IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAIL-E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL DA, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO DA HEREUNDER OR $100.00, WHICHEVER IS GREATER.

c.  IN NO EVENT SHALL DA, IT’S SUBSIDARIES OR AFFILIATES, OR ANY OF THEIR RESPECTIVE EMPLOYESS, OFFICERS, DIRECTORS OR REPRESENTATIVES (THE FORGOING ENTITIES, COLLECTIVELY, THE “DA ENTITIES”) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUR OF (A) THIS AGREEMENT, (B) THE DA WEBSITE; (C) YOUR USE OF OR INABILITY  TO USE THE DA WEBSITE. IN EACH EVENT, EVEN IF DA OR SUCH PARTY HAS BEEN ADVISED OF THE DAMAGES, APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMTITATION OR EXCLUSION MAY NOT APPLY TO YOU. DA IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED ACCESS TO OR ALTERATIONS OF YOUR SUBMISSIONS, TRANSMISSIONS, OR DATA FOR ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED. DA IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSECNE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY, OR ANY INFRINGEMENT BY A THIRD PARTIES OF ANOTHERS INTELLECTUAL PROPERTY, PRIVACY OR OTHER RIGHTS. IN NO EVENT SHALL DA TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING FROM OR RELATED TO THIS AGREEMENT, THE DA WEBSITE, OR YOUR USE OF OR INABILITY TO USE THE DA WEBSITE EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING OR ACCESSING THE DA WEBSITE.

d. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS TERMS GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 11. Governing Law and Dispute Resolution:

a.Governing Law; Limitation of Claims. This Agreement will be governed by and construed in accordance with the laws of the State of Texas. You agree that regardless of any statute or law to the contrary, any claim or cause of action against DA arising out of or related to this Agreement must be filed within two years after such claim or cause of action arose or be forever barred.

b.Dispute Resolution.  PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND DA HAVE AGAINST EACH OTHER ARE RESOLVED.

c.We strongly encourage you to first contact us directly to seek a resolution of any dispute or claim by e-mailing ondowningavenue@gmail.com.  You and DA agree that any and all disputes or claims that have or may arise between you and DA shall be resolved exclusively through final and binding arbitration, rather than in court. 

d.The arbitration will be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as modified by this Agreement to Arbitrate. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes.  Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.  Arbitrator decisions are as enforceable as any court order and are subject to very limited review by the court.

e.The arbitration will be confidential, and neither you nor DA may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award.

f.The arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and

g.If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.  If for any reason a claim proceeds in court rather than in arbitration, the venue dispute will be exclusively brought in state or court  in Midland County, Texas. You hereby consent and agree that state courts located in Midland County, Midland, Texas shall have personal jurisdiction and proper venue with respect to any dispute between you and DA arising in connection with this Agreement. In any dispute with DA,, you will not raise, and you hereby expressly waive, any objection or defense to any such jurisdiction as an inconvenient forum.

 

h.Expenses and Attorneys’ Fees.  In the event any action is brought to enforce any provision of these Terms or to declare a breach of these Terms, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred  therein. 

12. Termination: 

These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by notifying us that you no longer wish to use our Services, or when you cease using our website. If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms, we also may terminate these Terms at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

13. DMCA Notice:

We respect the intellectual property rights of others, and we prohibit uploading, posting, transmitting, sharing, or otherwise making available any material that violates another party's intellectual property rights. When we receive proper notification of alleged copyright infringement, we may promptly remove or disable access to any allegedly infringing material and may terminate any Account of any repeat infringer, in accordance with the Digital Millennium Copyright Act ("DMCA"). If you believe that your own copyrighted work is accessible on the Services or any service in violation of your copyright, then You may provide our designated agent with a written communication as set forth in the DMCA, 17 U.S.C. Sec. 512(c)(3) that contains substantially the following information:

A.     A. Identify in sufficient detail the copyrighted work or intellectual property that you claim has been infringed, so that we can locate the material. 

  1. Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf. 
  2. Include a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law. 
  3. Include a statement by you that the information contained in your notice is accurate and that you attest under the penalty of perjury that you are the copyright owner or that you are authorized to act on the copyright owner's behalf. 

Include your name, mailing address, telephone number, and e-mail address.  You may submit your notification of Alleged Copyright Infringement by sending a letter to our designated agent by e-mail to ondowningavenue@gmail.com.

 

14. General:

a.Notification Procedures and Changes to the Terms. DA may provide notifications, whether such notifications are required by law or are for marketing or other business- related purposes, to you via e-mail notice, written or hard copy notice, or through posting of such notice on our website, as determined by DA in our sole discretion. DA reserves the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notifications. DA is not responsible for any automatic filtering you or your network provider may apply to e-mail notifications we send to the e-mail address you provide us with. DA may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change the Terms in a material manner, we will update the last modified date at the bottom of this page. Your continued use of the Services after any such change constitutes your acceptance of the new Terms. If you do not agree to any of these terms or any future terms, do not use or access (or continue to access) the Services.

b.Electronic Communications.  Our communications with you via the Services use electronic means, whether you visit the Services or send us an e-mail, or whether we post notices on the Services or communicate with you via e-mail or text. For contractual purposes, you consent to receive communications from us in an electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.

c.Entire Agreement / Seerability. If any provision of this Agreement shall be deemed to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms shall constitute the entire agreement between you and DA concerning the Services. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.

d.No Waiver. No waiver of any term herein shall be deemed a further or continuing waiver of such term or any other term, and DA’s failure to assert any right or provision under these Terms shall not constitute a waiver of such a right or provision.

e.Feedback.  We may use any reports, comments and reviews, ideas and suggestions in any form regarding the Services that you provide to us (collectively, the “Feedback”). You grant us a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate and use the Feedback in connection with any products and services. 

f.Interpretation. Section headings are for reference only and shall not be construed as substantive parts of the Terms. Each capitalized term used in these Terms shall have the meaning attributed to it in any part of these Terms.  

g.Survival. You acknowledge and agree that all indemnification, confidentiality, intellectual property, governing law, dispute resolution, limitation of liability and other clauses including those provisions which by their terms contemplate survival shall survive the termination or expiration of these Terms regardless of the cause of such termination.

h.Force Majeure:  Neither party will be held responsible for delay or default caused by fire, riot, acts of God, and/or war which is beyond that party’s reasonable control.   

These Terms were last updated on April 29, 2025