Babierge Terms of Service
December 31, 2015
These Terms of Service (hereinafter, the "Agreement") constitute a legally binding agreement between you and Babierge, LLC ("Company" or "Babierge"),
a New Mexico Limited Liability Company, governing your use of the Babierge application, website, content, product, email notifications, and services
(collectively, the "Service"), and any text, graphics, photos, or other materials uploaded, downloaded, or appearing on the Services (collectively
referred to as "Content"). Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. By accessing
or using the Service you agree to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Babierge Platform.
The purpose of the Service is to connect individuals who sign up through the Babierge platform and desire to rent equipment ("Users") with local
independent contractors who provide baby equipment rental services ("Trusted Partners") and to facilitate payment between such Users and Trusted
BABIERGE EXERCISES NO CONTROL OVER THE PROVISION OF BABY EQUIPMENT RENTAL SERVICES TO USERS BY TRUSTED PARTNERS.
License Grant & Restrictions
Company hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, subject to the terms and conditions of this Agreement. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service in the manner permitted by this Agreement. All rights not expressly granted to you are reserved by Company and its licensors.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You shall not use the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of any third-party's privacy or intellectual property rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
To use the Service, you must complete the signup form. You agree to: (1) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (2) choose a strong and secure password; (3) maintain the security of your password and identification; (4) maintain and promptly update the Registration Data and any other information you provide to Company, and keep it accurate, current and complete; (5) follow the Acceptable Use Policy below; and (6) be fully responsible for all use of your account and for any actions that take place using your account.
The Service is for your own use, and not for the use or benefit of any third party. You accept full responsibility for all activity conducted through your account and you agree to and hereby release Company from any and all liability concerning such activity. You agree to notify Company immediately of any actual or suspected loss, theft, or unauthorized use of your account or password. Company expressly disclaims any and all liability for the accessing of any such data communications by unauthorized persons or entities.
Acceptable Use Policy
Failure to do any of the following required acts, or to refrain from doing any of the prohibited acts, shall constitute a breach of this Agreement, which may result in immediate termination of your account.
You agree that you will:
You agree that you will not:
Comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, anti-spam laws, export control laws, tax laws, and regulatory requirements;
Provide accurate information to us and keep it updated;
- Use your real name in your profile; and
- Use the Service in a professional manner.
Provide any false personal information on the Service, or create an account for anyone other than yourself;
- Create more than one account;
Share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account;
Post content or take any action on the Service that infringes or violates someone else's rights or otherwise violates the law;
Knowingly post any false or inaccurate material;
- Send unsolicited emails, bulk mail, spam, or other materials to users of the Service or any other individual;
- Harass, threaten, stalk, or abuse any person or party, including other users of the Service;
- Use manual or automated software, devices, scripts, robots, or other means or processes to access, "scrape," "crawl," or "spider" the Services or any related data or information;
- Probe, scan, or test the vulnerability of the Service;
- Take any action that imposes, or may impose, an unreasonable or disproportionately large load on our infrastructure, as determined by Company; or
- bypass the measures Company may use to prevent or restrict access to the Service, including but not limited to features that prevent or restrict use or copying of Content or enforce limitations on use of the Service or the Content.
Certain aspects of the Service permit Customers to submit, contribute, or make otherwise information available to the Service, whether pictures, equipment inventory, pricing or more ("User Data"). User Data includes any data, information or material provided or submitted by you to Company with the intent of incorporation into the Service or in the course of using the Service. User Data also includes any feedback, comments, ratings, or other information you contribute to the Service.
We do not claim any rights in any User Data you may submit or make available for inclusion on the Service. You retain all rights, title and interest in User Data, and Company shall have no right, title, interest or responsibility in the same. However, by providing User Data to the Service, you grant us a worldwide, non-exclusive, transferable, sub-licensable, royalty-free license ("Content License") to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute such User Data in any and all media or distribution methods (now known or later developed). This license continues even if you stop using the Service. You warrant, represent, and agree that you have the right to grant to Company the Content License set forth above.
You specifically agree to hold Company harmless and indemnify Company for any issues relating to User Data, including but not limited to its accuracy, quality, integrity, legality, reliability, appropriateness, and non-infringement, and Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data. Company reserves the right to withhold, remove and/or discard User Data without notice for any breach, including without limitation, your breach for non-payment. Upon termination for cause, your right to access or use User Data and the Service shall immediately cease, and Company shall have no obligation to maintain, release, send or forward any User Data to you.
Intellectual Property Ownership
The Service may make available to you certain of the Company's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) the ("Company Technology"). Company and its licensors shall own all rights, title and interest, including all related Intellectual Property Rights (as defined below), in and to the Company Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Company Technology or the Content. The Company name, the Company logo, and the product names associated with the Service are trademarks of Company or third parties, and no right or license is granted to use them.
For the purposes of this section, "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
Third Party Interactions
The Service exists solely to connect Users with third parties who can provide baby equipment rental services. Company does not provide baby equipment rental services. By using the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties that list their goods and/or services through the Service.
ANY SUCH ACTIVITY, AND ANY TERMS, CONDITIONS, WARRANTIES OR REPRESENTATIONS ASSOCIATED WITH SUCH ACTIVITY, IS SOLELY BETWEEN YOU AND THE APPLICABLE TRUSTED PARTNER.
You specifically agree to waive and hold Company and its licensors harmless for, and they shall have no liability, obligation or responsibility for, any such correspondence, purchase or promotion between you and any such third-party. You acknowledge that any transactions between you and third parties are not governed by this Agreement, but instead by separate contract, if any, between you and the third party.
Company does not endorse any websites on the Internet that are linked through the Service. Company provides these links to you only as a matter of convenience, and in no event shall Company or its licensors be responsible for any content, products, or other materials on or available from such websites.
Charges and Payment of Fees
You shall pay all fees charged to your account in accordance with the billing terms in effect at the time a fee is due and payable. You must provide Company with valid credit card as a condition to signing up for the Service.
Company reserves the right to modify its fees and charges, and to introduce new charges at any time, upon at least thirty (30) days notice to you, which notice may be provided by email.
Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have neither falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You shall indemnify and hold Company, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with your use of the Service, including but not limited to: (i) a claim alleging that the User Data or User Feedback infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from your breach of this Agreement, provided in any such case that Company (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Company of all liability and such settlement does not affect Company's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Disclaimer of Warranties
COMPANY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT EXCEPT FOR WHAT IS STATED. COMPANY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COMPANY AND ITS LICENSORS.
COMPANY'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR DAMAGE RESULTING FROM SAID PROBLEMS.
Limitation of Liability
IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL COMPANY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF COMPANY OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you think somebody is violating your copyrights and want to notify us, you can find information about submitting notices and our policy about responding to notices in our Copyright Policy found here http://www.babierge.com/copyrightpolicy
Local Laws and Export Control
Company and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
Company may give notice by means of a general notice on the Service, electronic mail to your email address on record in Company's account information, or by written communication sent by first class mail or pre-paid post to your address on record with Company. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email).
Modification to Terms
Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
Assignment Change in Control
This Agreement may not be assigned by you without the prior written approval of Company, but may be assigned without your consent by Company to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
This Agreement shall be governed by the laws of the State of New Mexico, without regard to the choice of law or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of New Mexico.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between you and Company as a result of this Agreement or your use of the Service.
The failure of Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing.
This Agreement comprises the entire agreement between you and Company and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between you and Company regarding the subject matter contained herein.
In the event of any dispute or disagreement arising out of, relating to or in connection with this Agreement or your use of the Service (a "Dispute"), the parties shall use their best efforts to resolve the Dispute by good-faith negotiation and mutual agreement. The parties shall meet at a mutually convenient time and place to attempt to resolve any such Dispute.
In the event that the parties are unable to resolve any Dispute through negotiation, such parties shall first attempt to settle such Dispute through a non-binding mediation proceeding. In the event any party to such mediation proceeding is not satisfied with the results thereof, then any unresolved disputes shall be finally settled in accordance with an arbitration proceeding. In no event shall the results of any mediation proceeding be admissible in any arbitration or judicial proceeding.
(a) Mediation. Mediation proceedings shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") in effect on the date the notice of mediation was served, other than as specifically modified herein, and shall be non-binding on the parties thereto.
Any party may commence a mediation proceeding by serving written notice thereof to the other parties, by mail or otherwise, designating the issue(s) to be mediated and the specific provisions of this Agreement under which such issue(s) and dispute arose. The initiating party shall simultaneously file two copies of the notice with the AAA, along with a copy of this Agreement. A party may withdraw from the Dispute by signing an agreement to be bound by the results of the mediation, to the extent the mediation results are accepted by the other parties as provided herein. A party who withdraws shall have no further right to participate in the Dispute.
The parties shall select one neutral third party AAA mediator (the "Mediator") with expertise in the area that is in dispute. If a Mediator has not been selected within five (5) business days thereafter, then a Mediator shall be selected by the AAA in accordance with the Commercial Mediation Rules of the AAA.
The Mediator shall schedule sessions, as necessary, for the presentation by all parties of their respective positions, which, at the option of the Mediator, may be heard by the Mediator jointly or in private, without any other members present. The mediation proceeding shall be held in Santa Fe, New Mexico or such other place as agreed by the Mediator and all of the parties. The parties may submit to the Mediator, no later than ten (10) business days prior to the first scheduled session, a brief memorandum in support of their position.
The Mediator shall make written recommendations for settlement in respect of the Dispute, including apportionment of the mediator's fee, within ten (10) business days of the last scheduled session. If any party involved is not satisfied with the recommendation for settlement, he may commence an arbitration proceeding.
(b) Arbitration. Arbitration proceedings shall be conducted under the Rules of Commercial Arbitration of the AAA (the "Rules"). A party may withdraw from the Dispute by signing an agreement to be bound by the results of the arbitration. A party who withdraws shall have no further right to participate in the Dispute.
The arbitration panel shall consist of one arbitrator. The parties shall select one neutral third party AAA arbitrator (the "Arbitrator") with expertise in the area that is in dispute. If an Arbitrator has not been selected within five (5) business days thereafter, then an Arbitrator shall be selected by the AAA in accordance with the Commercial Arbitration Rules of the AAA. The arbitration proceeding shall be held in Santa Fe, New Mexico or such other place as agreed by the Arbitrator and all of the Members. Any arbitrator who is selected shall disclose promptly to the AAA and to both parties any financial or personal interest the arbitrator may have in the result of the arbitration and/or any other prior or current relationship, or expected or discussed future relationship, with the parties or their representatives. The arbitrator shall promptly conduct proceedings to resolve the dispute in question pursuant to the then existing Rules. To the extent any provisions of the Rules conflict with any provision of this Section, the provisions of this Section shall control.
In any final award and/or order, the arbitrator shall apportion all the costs (other than attorney's fees which shall be borne by the party incurring such fees) incurred in conducting the arbitration in accordance with what the arbitrator deems just and equitable under the circumstances.
Discovery shall not be permitted in such arbitration except as allowed by the rules of arbitration, or as otherwise agreed to by all the parties of the Dispute. Notwithstanding, the parties agree to make available to one another and to the arbitrator, for inspection and photocopying, all documents, books and records, if determined by the arbitration panel to be relevant to the Dispute, and by making available to one another and to the arbitration panel personnel directly or indirectly under their control, for testimony during hearings if determined by the arbitration panel to be relevant to the Dispute. The parties agree, unless undue hardship exists, to conduct arbitration hearings to the greatest extent possible on consecutive business days and to strictly observe time periods established by the Rules or by the Arbitrator for the submission of evidence and of briefs. Unless otherwise agreed to by the parties, a stenographic record of the arbitration proceedings shall be made and a transcript thereof shall be ordered for each party, with each party paying an equal portion of the total cost of such recording and transcription.
The Arbitrator shall have all powers of law and equity, which it can lawfully assume, necessary to resolve the issues in dispute including, without limiting the generality of the foregoing, making awards of compensatory damages, issuing both prohibitory and mandatory orders in the nature of injunctions and compelling the production of documents and witnesses for presentation at the arbitration hearings on the merits of the case. The arbitration panel shall neither have nor exercise any power to act as amiable compositeur or ex aequo et bono; or to award special, indirect, consequential or punitive damages. The decision of the arbitration panel shall be in written form and state the reasons upon which it is based. The statutory, case law and common law of the State of New Mexico shall govern in interpreting their respective rights, obligations and liabilities arising out of or related to the transactions provided for or contemplated by this Agreement, including without limitation, the validity, construction and performance of all or any portion of this Agreement, and the applicable remedy for any liability established thereunder, and the amount or method of computation of damages which may be awarded, but such governing law shall not include the law pertaining to conflicts or choice of laws of New Mexico.
Any action or proceeding subsequent to any Award rendered by the arbitrator in the Dispute, including, but not limited to, any action to confirm, vacate, modify, challenge or enforce the Arbitrator's decision or award shall be filed in a court of competent jurisdiction in the same county where the arbitration of the Dispute was conducted, and New Mexico law shall apply in any such subsequent action or proceeding.
The parties agree to participate in the arbitration in good faith. This Section applies equally to requests for temporary, preliminary or permanent injunctive relief, except that in the case of temporary or preliminary injunctive relief any party may proceed in court without prior arbitration for the limited purpose of avoiding immediate and irreparable harm.
Each party (i) hereby irrevocably submits to the jurisdiction of any United States District Court of competent jurisdiction for the purpose of enforcing the award or decision in any such proceeding, (ii) hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above named courts, that its property is exempt or immune from attachment or execution (except as protected by applicable law), that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court, and (iii) hereby waives and agrees not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such court. Each party hereby consents to service of process by registered mail at the address to which notices are to be given. Each party agrees that its, his or her submission to jurisdiction and its, his or her consent to service of process by mail is made for the express benefit of each other party. Final judgment against any party in any such action, suit or proceeding may be enforced in other jurisdictions by suit, action or proceeding on the judgment, or in any other manner provided by or pursuant to the laws of such other jurisdiction.