TERMS OF SERVICES

TERMS OF SERVICES
LAST MODIFIED: January 15, 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 www.babelbark.com, www.bizbark.com, www.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.
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.
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.

2 Registration. In order to use certain features of the Services, you may be required register for the Services.
2.1. To register for the Services, you must be 18 years or older, and you must provide the information requested (which may include such items as your legal full name, a valid email address for you, a valid phone number for you, and other information, and which may be collected through a third-party service, and you hereby authorize us to collect such data) (the “Registration Data”), and you must be a human – sorry robots. If you are a company with multiple individuals, each person must have their own login – a single login may not be shared by multiple people. The information we obtain through your use of the Services, including your Registration Data, is subject to our policy regarding privacy (“Privacy Policy”), which is available at www.babelbark.com/privacy. We operate the Services under the Privacy Policy which is hereby incorporated into this Agreement. Each party shall comply with the Privacy Policy.
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.
3.1. User hereby grants to Babel and its affiliates a non-exclusive, worldwide, transferable, perpetual, fully paid-up, and royalty-free license to use, reproduce, modify, create derivative works, create compilations, publish, share, sell, distribute, display and transmit any data voluntarily contributed by the User to BabelBark for use of the Services, other than data that is Personal Information under BabelBark’s Privacy Policy, (“User Data”), including descriptions of services, pictures of animals, and pricing information, contributed search terms, search patterns, and usage history (collectively, the “Resulting Data”), and to make that Resulting Data available in an aggregated and de-identified form.
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.
3.6. We do not control User Data, and we are not responsible for its content, accuracy or reliability. We are under no obligation to edit or control User Data, although we reserve the right to review, and take certain actions with respect to, User Data in accordance with this Agreement, including the Privacy Policy (as defined below).
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 Use of the Services. You must comply with any rules and policies about use of the Services that we publish from time to time. These rules and policies may be available on the Services. Certain features, pages or content within the Services may contain supplemental terms of use, to which you must agree in order to use the relevant features, pages or content.
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. 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 (e.g., monthly or annual) unless you notify us in writing via email at support@babelbark.com at least thirty (30) days prior to the expiration of the subscription period of your decision to terminate your subscription. 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 support@babelbark.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.
9.1. The Services may depend upon, interact with or enable access to third parties’ data, information, other content, services or websites (each, a “Third Party Services”), which may in each case be accompanied by separate terms of use. Use of each Third Party Services may require that you accept additional terms of use. You must comply with the applicable terms of use when using the Third Party Services and the Services. BabelBark does not endorse, and hereby disclaims all liability or responsibility to you or any other person for, any Third Party Services.
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
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 User Data, 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. 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 User Data.
17 Apple
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 those sections that specifically reference Apple.