TERMS OF SERVICES
LAST MODIFIED: June 27, 2019
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 provided websites, including babelbark.com, bizbark.com, and babelvet.com (“Site” or “Sites”) and/or mobile applications (“Apps”) or any other BabelBark offering (collectively the “Services” or “Platforms”) 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. 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). These Services may consist of one or more particular offerings (“Service Offerings”) at our discretion, including at least:
1.1. BabelBark. BabelBark assists pet parents with reviewing their dog’s health and wellness, tracking 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). Further certain premium offerings requiring a subscription payment may be available at our discretion, including a veterinary services hotline, as well as a service that assists pet parents with finding their pet if lost. If you choose, you may subscribe to certain paid Service Offerings for BabelBark at babelbark.com/buy.
1.2. BizBark. BizBark is a SaaS based CRM for pet businesses (walkers, borders, pet stores, etc.) that integrates with the BabelBark app, and will provide services relevant to these types of entities. If you choose, you may subscribe to certain paid Service Offerings for BizBark at bizbark.com/buy.
1.3. BabelVet. BabelVet is a SaaS based portal for veterinarians and others that find the functionality offered by BabelVet useful. BabelVet integrates with veterinary practice management systems so BabelBark app users can import their pet’s medical records. BabelVet also captures information thru the app (medication compliance, dietary details, activity levels, etc.) and presents it to veterinarians, or other types of users. It may also provide additional functionality that we choose to release. If you choose, you may subscribe to certain paid Service Offerings for BabelVet at babelvet.com/buy.
2 Registration. In order to use certain features of the Services, you may be required register for the Services.
2.2. You agree that you, as an individual as well as the party who employs you or otherwise authorized your access to the Services under a separate agreement with us are each jointly and severally responsible for all activities that occur under your user account.
2.3. You agree not to use the account, username or password of another user at any time or to do anything else that might jeopardize the security of your or another user’s account. You agree to notify us immediately of any unauthorized use of your account. If we have reasonable grounds to suspect violation of these terms or that registration information you have provided is untrue, inaccurate, outdated, or incomplete, we may terminate your account without refund and refuse current or future use of any or all of the Services. We are not responsible for any loss or damage to you or any third party that may be incurred as a result of any unauthorized access and/or use of your account, or otherwise.
2.4. You, as an individual, as well as the party who employs you or has otherwise authorized you to access the Services under a separate agreement with us will be responsible for maintaining the security of your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your personal account and any of your uses or misuses of the responsible organization’s account.
3 Ownership; Proprietary Rights. The Sites and Platforms, including all information and materials contained in the Site, and distributed by the use of the Services or Platform, is owned and operated by BabelBark or, to the extent expressly otherwise indicated in the Site, other parties. All content, images, illustrations, designs, names, products, services, icons, photographs, video clips, typefaces, source and object code, format, queries, algorithms, visual interfaces, HTML, information, graphics, design, look and feel, compilation and all other elements (whether written or otherwise) of the Platforms, including any content provided, through the Platforms by BabelBark that is not owned by another (collectively, the “BabelBark Materials”), as well as their selection and arrangement, and all intellectual property and other rights relating to Site Materials, are protected by, as appropriate by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All BabelBark Materials are the property of BabelBark or its subsidiaries or affiliated companies and/or third-party licensors. Except as expressly authorized by BabelBark under this Agreement, you agree not to directly or indirectly sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the BabelBark Materials.
3.2. 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.
3.3. Notwithstanding any provision to the contrary herein, User shall at all times retain sole ownership of its original User Data. As between the parties, BabelBark owns and retains all right, title, and interest in and to the Services and all Resulting Data, including, without limitation, all data and information or compilations thereof resulting from BabelBark’s permitted use of the User Data including any and all intellectual property rights arising from and related to the foregoing, and further including all copies, portions and derivative works of any of the foregoing (by whomever created). There are no implied licenses granted by BabelBark under this Agreement.
3.4. You agree that we are not responsible for any use or disclosure of User Data 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).
3.5. You represent and warrant that you own all proprietary rights in User Data or, with respect to any User Data that you do not own, that you have the full authority and right to create, upload, store and/or transmit User Data, and to grant the licenses and rights you have granted in this Agreement, and that your creation, uploading, storage and/or transmission of User Data, 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.
3.7. Subject to the terms and conditions herein, we grant you the non-exclusive, limited, revocable right to access and use BabelBark Materials 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 BabelBark Materials.
4.1. 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).
4.2. You must not (a) create, upload, transmit or otherwise make available User Data if you do not have the right to do so; (b) create, upload, transmit or otherwise make available User Data 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 User Data; (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 BabelBark Materials; (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.
4.3. User Data 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.
4.4. We reserve the right (but are under no obligation) to investigate any claim that User Data or use of the Services does not conform to the terms and conditions of this Agreement, and to remove User Data from the Services or terminate your account for breach of this Agreement.
4.5. Certain portions of the Services may provide access to a phone number or hotline. BabelBark is not responsible for any charges you may incur for telecommunications services by calling the hotline. BabelBark will only levy those subscription charges previously agreed to based on your plan for any Paid Services.
5 Payment for Services; Trial Offers We may make the Services available in both free and paid versions through the Sites and Platform or otherwise. We reserve the sole right to either modify or discontinue the Services or features that might be available through a free or paid model, at any time with or without notice to you. Any modified or new features that we may choose to make available to you shall also be subject to these Terms of Service.
5.1. Paid Services: The Paid Services provide features that may or may not be available in the free version of our Services. Unless otherwise agreed in writing, the Paid Services will be governed by the following terms. For Paid Services, you or the party who has authorized you to access the Service must have a valid separate agreement with BabelBark whereby they agree to pay us the applicable subscription fee until the expiration of the agreed upon term or cancelation of your subscription in a manner agreed upon with us. For example, we currently allow you to subscribe to BabelBark via the AlphaPack service at babelbark.com/buy, BizBark at bizbark.com/buy and BabelVet at babelvet.com/buy. Unless otherwise specified in a mutually executed Agreement with you or the party authorizing you, we reserve the right to increase a Service’s fees or institute new charges at any time. Service fees are due in advance of access to the paid features and are typically offered in monthly or annual increments. Paid Services subject to a subscription will automatically renew for the subscription period you choose via the mechanism used to subscribe to Paid Services, such as using one of the links above. (e.g., monthly or annual) unless you notify us in writing via email at firstname.lastname@example.org at least thirty (30) days prior to the expiration of the subscription period of your decision to terminate your subscription or choose to terminate via the cancelation mechanism provided for the specific Paid Service. This functionality will be made available within your account dashboard. The cancellation functionality for BizBark is available at bizbark.com/my-account. The cancellation functionality for BabelBark is available at babelbark.com/my-account. The cancellation functionality for BabelVet is available at babelvet.com/my-account. All subscription fees are earned in full when paid and are not refundable. Subscription fees are exclusive of all taxes, levies, or duties imposed by taxing authorities for which you shall be solely responsible to pay. We will not issue refunds or credits for partial periods of service, upgrade/downgrade refunds, or refunds for un-used time with an open account. In order to treat everyone equally, no exceptions to this practice will be made. You may cancel your membership at any time by contacting our support team, including through email at email@example.com, and requesting cancellation or by using the appropriate feature within your account. Accordingly, you agree that the subscription fee will be billed automatically at the beginning of each renewal period at the then-current rate to the credit card or other mutually agreeable payment method you used in your most recent transaction with us. Cancellations must be received at least thirty (30) days prior to the next billing cycle to avoid additional monthly charges.
5.2. Trial Offers: In certain cases, our Paid Services may be provided on a free or limited trial basis. There is a limit of one free or limited trial offer, if any, per person and per business during any given one-year period unless otherwise stated in the offer. If payment information (e.g. credit card) was collected prior to or during your registration for a trial subscription, and if you do not cancel your trial subscription during the offer period, we will charge the credit card or other payment method you provided during the registration process for the applicable monthly subscription fee. Any use beyond posted or the agreed upon trial period will be invoiced at the then applicable rate.
6 Payments You are responsible for paying all fees and applicable taxes created by subscribing to the Paid Services in a timely manner with a valid payment method.
6.1. You may receive invoices and make payments in any manner agreed upon with BabelBark. If you have elected to make automatic payments via credit card, charge card, debit card, PayPal, or financial institution account (herein “Payment Method“) for all charges to your accounts with BabelBark, then you hereby authorize BabelBark to charge your Payment Method for the fees incurred. When you provide a Payment Method to us, you confirm that you are permitted to use that Payment Method and you also authorize our third party payment processor to receive, collect and store your Payment Method information, along with other related transaction information. When you make a purchase, you authorize us (and our designated payment processor) to charge the full amount to the Payment Method you designate for the transaction.
6.2. If your Payment Method fails or your account is past due, (a) you agree to pay all amounts due on your account upon demand and reimburse us for all reversals, charge-backs, claims, fees, fines, penalties and other liability incurred by us (including costs and related expenses) that were caused by or arising out of payments that you authorized or accepted, (b) BabelBark may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (c) we reserve the right to either suspend or terminate your Paid Services or your account with us, including deletion of your account. You agree to submit any disputes regarding any charge to your account in writing to BabelBark within thirty (30) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. If your access to any Paid Services was provided to you by a third party, we may terminate your access to any Paid Services in accordance with this section should the third party’s Payment Method fails or their account, used to provide you access to Paid Services, becomes past due.
6.3. Unpaid fees are subject to a finance charge of one percent (1.5%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. You agree to pay such taxes (excluding US taxes based on BabelBark’s net income) unless you have provided BabelBark with a valid exemption certificate. Notwithstanding anything to the contrary, in addition to any other remedy available, BabelBark may restrict or suspend your access to the Sites or Platform upon five (5) business days notice if payment is not made when due.
7 Cancellation and Termination
7.1. Upon cancellation, all of the content you have created and posted through the Services including User Data may be immediately deleted, and may not be recovered once your account is cancelled. We do not accept any liability for loss of any such content including User Data due to cancellation of your account. If you cancel the Service before the end of your current paid up subscription period, your cancellation will take effect at the end of your subscription period and you will not be charged again the following term, but there are no pro-rations to your paid license for the period that you terminated early.
7.2. We further reserve the right to disable or deactivate unpaid accounts. In the event of such termination, all data associated with such an account may be deleted. We are not obligated to provide you prior notice of such termination.
7.3. You further agree that BabelBark, as the result of a good faith belief that you have violated any of the terms and conditions of the Agreement, may suspend your use of the Site or any portion thereof at any time. You agree that any suspension of your access to the Site you may have or portion thereof may be effected without prior notice and you agree that we will not be liable to you or any third party for any such suspension. At our election, depending on the nature of the our good faith belief that you have violated any of the terms and conditions of the Agreement, we may offer you 30 days to cure any such violation before terminating your access to the Site completely. During suspension and after termination of your access to the Site, you may still have access to certain functionality or services that do not depend on your access to the Site that are subject to agreements other than this Agreement. We do not permit copyright infringing activities on the Site and reserves the rights to terminate access to the Site and to remove all content submitted by any persons who are found to be infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Site may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies we may have at law or in equity.
8 Warranty Exclusions and Limitations of Liability. THE SERVICES ARE 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 Under no circumstances will any content provided through the Services be considered medical advice, or veterinary advice. USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP. BABELBARK DOES NOT OFFER MEDICAL ADVICE, RECOMMENDATION, DIAGNOSE OR TREATMENT.
8.1. 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.
8.2. 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).
8.3. 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.
9 Cloud Services and Third Party Services and Resources. Without limitation of the disclaimers and limitations of liability set forth within this Agreement, 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.
10 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.
10.1. Without limitation of the foregoing, if we receive a subpoena or similar requirement to disclose User Data 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