TERMS OF SERVICES
LAST MODIFIED: June 11, 2018
Babel Bark, Inc.
These Terms of Services (this “Agreement”) set out the terms on which Babel Bark, Inc. (“BabelBark”, “we” or “us”) will provide access to and use of certain services available on or through BabelBark’s website (“Site” or “Sites”) and/or mobile applications (“App”) or any other BabelBark offering (the “Services”) to you, a user of the Services (“you” or “User). You should read this Agreement carefully. By indicating acceptance of this Agreement or by otherwise using the Services, you are entering into a legally binding agreement with us (and you hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement). If you are using the Services on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the terms “User” and “you” will include both you, the individual user, and such organization. If you do not agree to these terms and conditions, you must not use the Services.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND BABELBARK, UNLESS YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH BABELBARK. IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH BABELBARK, THAT SEPARATE WRITTEN AGREEMENT SHALL CONTROL, AND ONLY THOSE TERMS WITHIN THIS AGREEMENT THAT DO NOT CONFLICT WITH THE SEPARATE WRITTEN AGREEMENT SHALL APPLY.
1. Nature of the Services. General. The Services allows certain Users to access, use and/or download certain information or other content (which may include data, text, photos, audio or video) related to their dog’s health and wellness, to track their dog’s activity levels and to review, compare and purchase and schedule pet services and pet products. It may also permit certain Users to create, upload, store and/or transmit to Babel Bark or other Users certain information or other content (which may include data, text, photos, audio, video or other materials or content) (collectively, “User Content”). Your User Content may also be referred to as “Your Content” herein.
2. Registration. In order to use certain features of the Services, you may be required to provide us with your first name, last name, name of organization, address, phone number, business type, email address, dog’s name, dog’s date of birth, breed, dog’s height and weight, create a password, and register with us. To the extent you are using the Services on behalf of an organization, you may need to also provide us with information in order to confirm, or permit us to confirm, any relationship between you and such organization. We may also request additional information from you. You represent and warrant to us that you will provide us with accurate, current and complete registration information. You are responsible for your registration, and for all use of the Services using any User credentials or passwords issued to you or chosen by you. You will keep all such credentials and passwords confidential.
3. User Content. You retain your rights in Your Content, subject to the rights granted below. You hereby grant and agree to grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, transferable license, with the right to sublicense through multiple tiers, to copy, edit, modify, adapt, publish, transmit, distribute, prepare derivative works, perform, display, use, and otherwise exploit in any manner, Your Content in connection with operation and promotion of the Services, and any other purposes reasonably related to the Services or our other activities or operations. To the extent reasonably necessary or appropriate to effect or support the license granted by you above, you hereby waive and agree to waive (or if not waivable, agree not to assert) any rights of privacy or publicity, or any moral rights or other similar rights, with respect to Your Content.
3.1. You also hereby grant and agree to grant each other User a worldwide, non-exclusive, perpetual, royalty-free license to access and use Your Content which (a) you transmit or otherwise make available to such User via the Services or (b) you post within any public forum or similar area of the Services that is available to Users generally, in each case solely for such User’s own personal purposes (or if such User is an organization, solely for such User’s own internal business purposes (excluding, for clarity, any right to distribute or otherwise commercialize Your Content per se)), in accordance with the terms and conditions herein.
3.2. You agree that we are not responsible for any use or disclosure of Your Content by other Users or any third party who gains access to it through the Services (which may include unintended activities by third parties, such as by hackers).
3.3. You represent and warrant that you own all proprietary rights in Your Content or, with respect to any of Your Content you do not own, that you have the full authority and right to create, upload, store and/or transmit Your Content, and to grant the licenses and rights you have granted in this Agreement, and that your creation, uploading, storage and/or transmission of Your Content, and the exercise by us and other Users of the licenses and rights granted by you, shall not infringe any third party intellectual property or proprietary rights, nor violate any rights of privacy or publicity, nor be defamatory, libelous, vulgar, profane or obscene, nor violate any law or other right, privilege or interest of any third party.
3.5. On termination of your account, or this Agreement, we have no obligation to return any User Content to you, so you should retain copies of all of Your Content.
4. Our Ownership Rights. Subject to your rights in Your Content, the Services, including all aspects of the BabelBark website and mobile application (including Our Property, as defined below), is the property of, and owned by, BABELBARK and its licensors. All the software, algorithms, functionality, inventions, concepts, data (including, without limitation, data generated using Your Content), text, images, sound, music, videos, marks, logos, compilations, content and technology used to deliver the Services or otherwise embodied in or displayed through the Services are “Our Property.” For clarity, any formats, templates, methodologies, rules, algorithms and software used to create Your Content are Our Property and any data generated through the Services using Your Content is Our Property. Except as otherwise expressly permitted by this Agreement, any use, copying, making derivative works, transmitting, posting, linking, deep linking, framing, redistribution, sale, decompilation, modification, reverse engineering, translation or disassembly of Our Property is prohibited. You acknowledge that Our Property has been created, compiled, developed and maintained by us at great expense of time and money such that misappropriation or unauthorized disclosure or use of Our Property by others for commercial gain would unfairly and irreparably harm us in a manner for which damages would not be an adequate remedy, and you consent to our obtaining injunctive relief to restrain any breach or threatened breach of this Agreement, without any requirement to post bond. You may be subject to criminal or civil penalties for violation of this paragraph.
4.1. The marks BabelBark and any associated logos, are our registered or unregistered trademarks or Services marks. You may not use them, or any of our other marks or logos, in any manner, including any use that is likely to cause confusion or that disparages or discredits us, without our consent. The Services may also feature the trademarks, Services marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Services, will inure solely to the benefit of their respective owners.
4.2. Subject to the terms and conditions herein, we grant you the non-exclusive, limited, revocable right to access and use Our Property solely to the extent necessary for you to use the Services for your own personal purposes (or if you are an organization, for your own internal business purposes), as permitted by this Agreement. We reserve all other rights. For clarity and without limiting other obligations herein, Users shall not distribute or otherwise commercialize Our Property.
5.1. Subject to the terms and conditions herein, you are permitted to use the Services solely for your own personal purposes (or if you are an organization, solely for your own internal business purposes).
5.2. You must not (a) create, upload, transmit or otherwise make available Your Content if you do not have the right to do so; (b) create, upload, transmit or otherwise make available Your Content or use the Services in any way that would violate any law or the rights of any person; (c) impersonate any person or entity, or forge or manipulate headers to disguise the origin of any of Your Content; (d) except as otherwise expressly permitted by this Agreement, harvest or otherwise collect information about others from the Services; (e) take any action that imposes or may impose an unreasonable or disproportionately large load on the Services or its infrastructure, or bypass any measures we may use to prevent or restrict access to any portion of the Services (or other accounts, networks or services connected thereto); (f) use manual or automated software, devices, or other processes to “crawl”, “scrape” or “spider” any of the Services or otherwise to copy, obtain, propagate, distribute or misappropriate any data, information or other content from the Services, including any of Our Property; (g) distribute or otherwise make available any data, information or other content obtained through the Services to any third party, except as expressly permitted herein; (h) otherwise interfere in any manner with the use or operation of the Services; or (i) use the Services in the development, directly or indirectly, of any product, software, Services, program or database that offers any functionality or information substantially similar to, or is competitive with, the Services, in whole or part.
5.3. Your Content must not: (i) be libelous, vulgar, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or encourage a criminal offense; (ii) contain material from other copyrighted works without the written consent of the owner of such copyrighted material; (iii) infringe any copyright or violate any property rights, rights of privacy or publicity, or any other rights of any third party; (iv) contain any software viruses, malware, spyware or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment; or (v) except as otherwise expressly permitted by us in writing, contain any advertising, promotional, solicitation or other commercial material.
5.4. We reserve the right (but are under no obligation) to investigate any claim that User Content or use of the Services does not conform to the terms and conditions of this Agreement, and to remove User Content from the Services or terminate your account for breach of this Agreement.
6 . Feedback. If you provide to us (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, or other submissions related to the Services (collectively “Feedback”), the Feedback will be the sole property of BabelBark. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. We are and shall be under no obligation to maintain any Feedback in confidence, or to respond to any Feedback.
7. Warranty Exclusions and Limitations of Liability. THE SERVICES IS PROVIDED “AS IS”, WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE SERVICES OR OUR PROPERTY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES OR OUR PROPERTY. We may pause or interrupt the Services at any time, and you should expect periodic downtime for updates to the Services. No advice or information, whether oral or written, obtained by you from us or through the Services will create any other warranty.
7.1. UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM US ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR OUR PROPERTY, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR OUR PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS PAID BY YOU TO US FOR THE SERVICES IN THE PRIOR YEAR (OR, IF YOU ARE A NON-FEE PAYING USER, TO THE AMOUNT OF $10).
7.3. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
8. Cloud Services and Third Party Services and Resources. Without limitation of the disclaimers and limitations of liability set forth in Section 8, you acknowledge and agree as follows: (a) we provide the Services using cloud computing services of one or more third party cloud providers (collectively, the “Cloud Providers”); (b) the price at which we could afford to offer the Services would vary if we provided the Services other than using such cloud services; and (c) we shall not be responsible or liable to you for any act, omission or failure of any Cloud Provider.
9. Indemnity. You will indemnify us, and our licensors, providers and agents, against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees (collectively, “Liabilities”) arising out of or related to your breach of this Agreement or your use of the Services (but excluding any Liabilities to the extent caused by our negligence or willful misconduct). We reserve the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to indemnify us. You will cooperate with us with respect to such defense and settlement.
9.1. Without limitation of the foregoing, if we receive a subpoena or similar requirement to disclose Your Content issued by any court or governmental authority, and we are not a party to the proceeding in question, you will reimburse us for our reasonable costs and expenses of complying with such subpoena, including time spent by our personnel and our attorneys at time and materials rates.
11. Digital Millennium Copyright Act. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet Services providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material hosted by the Services you may contact our Designated Agent at the following address:
BabelBark, Inc. Attention: Roy Stein
125 Greenwood Street
Newton, MA 02459
11.1. Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of the material that you claim is infringing and where it is located on the Services; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
11.2. Counter Notices. If material that you have posted to the Services has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following: (i) a physical or electronic signature of the subscriber; (ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (iv) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which BabelBark may be found, and that you will accept Services of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.
11.2.1. Repeat Infringers. It is our policy to terminate in appropriate circumstances the accounts of Users that are repeat infringers or repeatedly violate these Terms of Services.
12. Suspension and Termination. You may terminate this Agreement at any time by closing your account and ceasing to use the Services. We reserve the right to suspend your account and/or access to the Services at any time if we believe you are in breach of this Agreement. We reserve the right to terminate this Agreement or to cease to offer the Services at any time on written notice to you (including by email to registered Users, or posting on our website), for any reason or no reason.
12.1. If your account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Services, (c) that the license and rights provided by us under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of Your Content, and (e) that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of the Services or for termination of access to your account.
12.2. Sections 5, 7-10, and 13-21, any accrued obligations and remedies hereunder, and any other provisions that by their nature should reasonably survive, shall survive the termination or expiration of this Agreement.
13. Modification of Services and Agreement. We reserve the right to modify the Services at any time, without notice to you. We may also from time to time amend this Agreement prospectively. If we do so, we will notify you by email (for registered Users) and posting on our mobile application. You agree that your continued use of the Services constitutes your agreement to the amended Agreement. If you do not agree to any amended Agreement that we publish, you must terminate your account and cease using the Services.
14. Applicable Law. You and we each agree that all disputes or other matters arising from or relating to this Agreement, or the use or operation of the Services, will be governed by the substantive laws of The Commonwealth of Massachusetts, U.S.A., without regard to any conflicts of laws principles that would apply another law. Any action or proceeding by you relating to any claim arising from or relating to the Services or this Agreement must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued.
15. Jurisdiction. You hereby consent to non-exclusive jurisdiction and venue in any federal or state court located within The Commonwealth of Massachusetts, USA, with respect to any suit, claim or cause of action arising from or relating to the Services or this Agreement, and you shall not bring any such suit, claim or cause of action except in a court located within The Commonwealth of Massachusetts, USA. Notwithstanding the prior sentence, at BabelBark’s option, in its sole discretion, any dispute arising from or relating to the Services or this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce, or the American Arbitration Association, by one or more arbitrators appointed in accordance with said Rules. Such arbitration shall be conducted in English and located in Boston, Massachusetts, U.S.A.
16. Force Majeure. In no event will we be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside our reasonable control. Without limitation of the foregoing, in the absence of our gross negligence or willful misconduct we will not be liable for any damages arising from the acts of hackers or similar bad actors interfering with the Services or using or disclosing any of Your Content.
17.1. If you have downloaded any App from the Apple iTunes Application Store, the following additional terms apply to any such App:
17.2. You agree and acknowledge that Apple is not responsible for the App and its content. In addition, your use of such App downloaded from such location is limited to a non-transferable license to use the App on any Apple branded products running iOS (including but not limited to iPad, iPhone, and iPod touch) (“iOS Devices”) or Mac OS X (“Mac Computers”), as applicable (collectively “Apple Device(s)”) that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service. Moreover, we hereby inform you and you acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
17.3. Apple has no warranty obligation with respect to any such App and any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty set forth in these Terms of Service is the responsibility of BableBark. Please note that BableBark has disclaimed all warranties where possible.
17.4. Apple is not responsible for addressing any claims relating to the App or your possession and/or use of the App, 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.
17.5. Apple is not responsible for any third-party infringement claims that the App or your possession and use of the App infringe a third party’s intellectual property rights.
17.6. Third Party Beneficiary: BabelBark and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to any such App, and that Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third party beneficiary thereof as set forth herein.
18. Compliance with Laws. You will comply with all laws and regulations applicable to your activities under or in connection with this Agreement, including without limitation United States export control laws, regulations and executive orders.
19. Geography. We are based in the United States. We provide the Services for use only by users located in the United States. We make no claims that the Services or any of its content is appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
20. Miscellaneous Provisions. No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein. No waiver will be binding on us unless made in an express writing signed by us. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between us and you regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. Your registration, this Agreement and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable by you to any third party without our prior written consent in our sole discretion. Any purported assignment, transfer or delegation without such consent will be null and void. We may assign or otherwise transfer or delegate this Agreement (including any rights or obligations hereunder), including to any entity that succeeds to any operations or activities of the BabelBark. This Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. This Agreement may be executed electronically, and your electronic assent or use of the Services shall constitute execution of this Agreement. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes. As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive. Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement. You agree that email to your email address on record will constitute formal notice under this Agreement. There shall be no third party beneficiaries to this Agreement except as set forth in Section 18 with respect to Apple.