Terms of Service

OVERVIEW

This store (the “Site”) is operated by Next Restaurant LLC d/b/a Aviary (“Aviary”, “we”, or “us”). Please read these Terms carefully before accessing or using the Site. By visiting or browsing the Site and/or purchasing something from us, you accept, acknowledge, and agree to be bound by the following terms and conditions (“Terms”), including those additional policies referenced herein. If you do not want to be governed by these Terms, you must exit this page immediately and not use, visit or browse the Site or register or sign up for an account on the Site. These Terms apply to all users of the Site, including without limitation users who are browsers, vendors, customers, merchants, and/or contributors of content.

We may update, change or replace any part of these Terms by posting updates and/or changes to the Site. We indicate at the top of the page when these Terms were last modified or updated. You can review the most current version of the Terms at any time on this page. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Site following the posting of any changes constitutes acceptance of those changes.  If you choose to opt-out of our revised Terms, you must stop using the Site immediately.

The Site is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.

SECTION 1 - ONLINE STORE TERMS

By agreeing to these Terms, you represent that you are at least 13 years of age. No one under age 13 may provide any information to or on the Site. We do not knowingly collect information from children under 13. If you are under 13, do not use or provide any information on the Site or on or through any of its features, register on the Site, make any purchases through the Site, use any of the features of the Site or provide any information about yourself to us, including your name, address, telephone number, email address, or any user name you may use. If we learn we have collected or received information from a child under 13, we will delete that information. If you believe we might have any information from or about a child under 13, please email preorders@theaviarybook.com.  If you are between 13 and 18 years of age, you may only use the Site with the involvement of your parent or legal guardian.

You may not use the Site or our products for any illegal or unauthorized purpose or to violate any laws in your jurisdiction (including but not limited to copyright laws).

You must not transmit any worms or viruses or any code or technologies of a destructive nature.

A breach or violation of any of the Terms will result in an immediate termination of your ability to use the Site.

SECTION 2 - GENERAL CONDITIONS

We are committed to protecting your privacy. Any information submitted on the Site is subject to our Privacy Policy, the terms of which are incorporated herein by reference.

Without the prior written consent of a duly authorized representative of Aviary, you will not (i) copy or distribute any part of the Site in any medium or (ii) alter or modify any part of the Site other than as may be reasonably necessary to use the Site for its intended purpose.

The headings used in these Terms are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

We are not responsible if information made available on this Site is not accurate, complete or current. The material on this Site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this Site is at your own risk.

This Site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this Site at any time, but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our Site.

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES

Prices for our products are subject to change without notice.

We reserve the right at any time to modify or discontinue the Site (or any part or content thereof) without notice at any time.

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Site.

SECTION 5 - PRODUCTS AND SERVICES

Certain products and services may be available exclusively online through the Site. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.

We have made every effort to display as accurately as possible the colors and images of our products that appear on the Site. We cannot guarantee that your computer monitor’s display of any color will be accurate.

We reserve the right, but are not obligated, to limit the sales of our products or services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of Aviary. We reserve the right to discontinue any product or service at any time. Any offer for any product or service made on this Site is void where prohibited.

We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Site will be corrected.

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made on the Site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

For more detail, please review our Returns Policy.

SECTION 7 - OPTIONAL TOOLS

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the Site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the Site (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms.

SECTION 8 - THIRD-PARTY LINKS

Certain content, products and services available via the Site may include materials from third-parties.

Third-party links on the Site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction.

Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

If you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “
Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium such Comments. We are and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay compensation for any Comments; or (3) to respond to any Comments.

For the avoidance of doubt, you are entirely responsible for the material included in, and any harm resulting from, your Comments. We may, but have no obligation to, monitor Comments or edit or remove Comments that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms. We have the right to take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site.  Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone who makes a Comment.  Accordingly, we assume no liability for any action or inaction regarding Comments.

When you make a Comment, you represent and warrant that you (i) own or have sufficient rights to make your Comment, on or through this Site, (ii) have fully complied with any third-party licenses relating to Comments, and (iii) agree to pay all royalties, fees and any other monies owing any person by reason of Comments that you posted to or through this Site. You agree that your Comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Site or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. We take no responsibility and assume no liability for any Comments posted by you or any third-party.

SECTION 10 - PERSONAL INFORMATION

If you wish to purchase an item on the Site, you will be asked by us or a third-party service provider to supply certain information, including without limitation your name, contact information and credit card information. You agree that all personal information that you provide to us or a third-party service provider will be accurate, current and complete. You agree to pay all charges incurred by you or any users of your account and credit card (or other payment mechanism) at the prices in effect when such charges are incurred, including any applicable taxes and shipping charges. You represent and warrant that you have the legal right to use any credit card or other payment mechanism used. By submitting your personal information, you grant us the right to provide such personal information to third-party service providers for the purposes of facilitating the completion of the transaction. Verification of personal information may be required prior to the completion of any transaction.

If you choose to create an account, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your account, and you agree to accept sole responsibility for all activities that occur under your account or password. You agree to notify us immediately of any breach of security or unauthorized use of your account by emailing preorders@theaviarybook.com. We shall not be liable for any losses, damages, liabilities or expenses caused by any unauthorized use of your account, and you agree to indemnify us for any such unauthorized use. Further, you further agree not to use another person’s account without permission. 

Your submission of personal information through the store is governed by our Privacy Policy. 

SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on the Site that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Site or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend or clarify information on the Site or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Site or on any related website, should be taken to indicate that all information on the Site or on any related website has been modified or updated.

SECTION 12 - PROHIBITED USES

In addition to other prohibitions set forth in these Terms, you are prohibited from using the Site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Site or of any related website, other websites, or the internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to interfere with or circumvent the security features of the Site or any related website, other websites, or the Internet; (l) use or exploit the Site for any commercial purpose; or (m) inhibit others from using or enjoying the Site. We reserve the right to terminate your use of the Site or any related website for violating any of the prohibited uses.

SECTION 13 - INTELLECTUAL PROPERTY RIGHTS

The content on the Site, including without limitation the text, software, manuscripts, graphics, photos, sounds, music, videos, interactive features, Comments and the like and the trademarks, service marks and logos contained therein, are owned by or licensed to Aviary, subject to copyright, trademark and other intellectual property rights under United States and foreign laws and international conventions. Content on the Site is provided to you “as is” and “as available” for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any other purpose whatsoever without the prior written consent of the respective owners.

We reserve all rights not expressly granted in and to the Site or its content. Specifically, any and all intellectual property rights associated with the Site and its content, including without limitation any inventive concepts, know how, publicity rights, trademarks, trade dress, trade secrets, copyrights and patents and patent rights, are the sole and exclusive property of Aviary. You agree not to engage in the use, copying or distribution of any content on the Site other than as expressly permitted herein, including any use, copying, or distribution of Comments of third parties obtained through the Site, for any commercial purpose. If you download or print a copy of any content on the Site for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any of its content or that enforce limitations on use of the Site or the content therein.

SECTION 14 - SITE MANAGEMENT

We may, but are not required to, (a) update the Site from time to time; (b) collect and log user access information, monitor or review this Site for violations of these Terms and for compliance with our policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates these Terms; (c) refuse, restrict access to or the availability of the Site, or remove or disable (to the extent technologically feasible) any Comment or any portion thereof that may violate these Terms, the law or any of our policies or are excessive in size or burdensome without prior notice to you; and/or (d) manage this Site in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of this Site. Without limiting any other provision of the Terms, we reserve the right to, in our sole discretion and without notice or liability, deny access to and use of this Site to any person for any reason or for no reason at all, including without limitation for breach of any representation, warranty or covenant contained in the Terms, or of any applicable law or regulation.

SECTION 15 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

We do not guarantee, represent or warrant that your use of the Site will be uninterrupted, timely, secure or error-free. We do not warrant that the results that may be obtained from the Site will be accurate or reliable. You agree that from time to time we may remove the Site for indefinite periods of time or cancel the Site at any time, without notice to you. We assume no liability or responsibility for any (i) errors, mistakes, or inaccuracies on the Site, (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the Site, (iii) any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein, (iv) any interruption or cessation of transmission to or from the Site, (v) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Site, and/or (vi) any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available via the Site. 

You expressly agree that your use of, or inability to use, the Site is at your sole risk. The Site and all products and services delivered to you through the Site are (except as expressly stated by us) provided ‘as is’ and ‘as available’ for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

In no case shall Aviary, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable (i) for any damages, losses or other amounts of any kind or nature in excess of the amounts you have paid to Aviary through our Site in the previous three (3) months, and then only if you have notified Aviary of the source of such damage or loss within three (3) days of your becoming aware of it or (ii) any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Site or any products or services procured using the Site, or for any other claim related in any way to your use of the Site or any product or service, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Site or any content (or product) posted, transmitted, or otherwise made available via the Site, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

SECTION 16 - INDEMNIFICATION

You agree to indemnify, defend and hold harmless Aviary and our subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, from any claim or demand, including reasonable attorneys’ fees, arising out of your breach of these Terms or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

SECTION 17 - SEVERABILITY

In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.

SECTION 18 - 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 Site, or when you cease using our Site. We may terminate your use of the Site and any service provided through the Site, and may remove and discard any of the Site’s contents at any time, for any reason and without notice. Further, you agree that we shall not be liable to you or any third party for any such termination.

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes. Additionally, the provisions of these Terms which by their nature survive termination shall survive the termination of the Terms, including without limitation the sections entitled ”Optional Tools,” ”Third-Party Links,” ”User Comments, Feedback and Other Submissions,” ”Personal Information,” “Prohibited Uses,” “Disclaimer of Warranties; Limitation of Liability,” and “Indemnification.”

SECTION 19 - ENTIRE AGREEMENT

No waiver of any provision or condition of these Terms by Aviary shall be binding upon Aviary unless confirmed in writing signed by a duly authorized officer of Aviary. No failure by Aviary to exercise and no delay by Aviary in exercising any right, remedy, privilege or power under or pursuant to these Terms will operate as a waiver thereof; nor will any single or partial exercise of any right, remedy, privilege or power provided for under or pursuant to these Terms by Aviary preclude or limit Aviary from any other or further exercise thereof or from pursuing any other right, remedy, privilege or power available pursuant to these Terms, or at law or in equity.

These Terms and any policies or operating rules posted by us on the Site or in respect to products or services constitutes the entire agreement and understanding between you and us and govern your use of the Site, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms).

Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.

SECTION 20 - GOVERNING LAW

These Terms and any separate agreements referenced herein shall be governed by and construed in accordance with the laws of the state of Illinois without regard to its conflict of law provisions. If there is any dispute about or involving the Site, the content provided on or through the Site, or these Terms, you agree to personal jurisdiction by and venue in the state and federal courts in Cook County, Illinois.

SECTION 21 - ARBITRATION

At Tock’s sole discretion, it may require you to submit any disputes about or involving the Site, the content provided on or through the Site, or these Terms, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Illinois law.

SECTION 22 - CLASS WAIVER

You agree to litigate or arbitrate solely on an individual basis, and that these Terms do not permit class action or class arbitration or any claims brought as a plaintiff or class member in any class or representative litigation or arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis.

SECTION 23 - CONTACT INFORMATION

Questions about the Terms should be emailed to us at preorders@theaviarybook.com.