Effective: August 1, 2020
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND CAUSAAS LLC A DELAWARE LLC DBA BACHALAASH (COLLECTIVELY, “BACHALAASH,” “WE,”“US,” OR “OUR”).
THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OFTHIS AGREEMENT. IN PARTICULAR, SECTION 11 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER INANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 11 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
1. Acceptance of this Agreement
Bachalaash provides an online website that facilitates ordering using web-based technology on behalf of restaurants and community organizations raising funds. Bachalaash’s software permits consumers to place orders for food and/or other goods from various restaurants and businesses (the“Software”). Once such orders are made, Bachalaash notifies merchants including restaurant partners of an order opportunity to be fulfilled from the merchants inventory. Bachalaash is not a shop, bar, brewery, restaurant, delivery service, or food preparation business. By accessing this website you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that:(a) you have read, understand, and agree to be bound by thisAgreement;(b) you are of legal age in the jurisdiction in which you reside to form a binding contract with Bachalaash; and(c) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement.The terms “User” and “Users” refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use theServices through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use the Services.
Subject to Section 11(h) of this Agreement, Bachalaash reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or Services at any time, effective upon posting of an updated version of this Agreement through the Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
3. Additional Terms and Policies
4. Rules and Prohibitions
Without limiting other rules and prohibitions in thisAgreement, by using the Services, you agree that:
(a) You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other Users, Bachalaash employees, or our community.
(b) You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.
(c) You will only access the Services using means explicitly authorized by Bachalaash.
(d) You will not use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.
(e) You will not use the Services to cause nuisance, annoyance or inconvenience.
(f) You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any Merchant, user, unless Bachalaash has given you prior permission to do so in writing.
(g) You will not copy or distribute the Software or any content displayed through the Services, including Merchants’ menu content and reviews, for republication in any format or media.
(h) You will not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.
(i) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
(j) You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.
(k) You will use the Software and Services only for your own use and will not directly or indirectly resell, license or transfer theSoftware, Services or content displayed by the Services to a third party.
(l) You will not use the Services in any way that could damage, disable, overburden or impair any Bachalaash server, or the networks connected to any Bachalaash server.
(m) You will not attempt to gain unauthorized access to theServices and/or to any account, resource, computer system, and/or network connected to any Bachalaash server.
(n) You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures Bachalaash may use to prevent or restrict access to the Services or use of the Services or the content therein.
(o) You will not deep-link to our websites or access our websites manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of our websites or any content on our websites.
(p) You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services.
(q) You will not try to harm other Users, Bachalaash, or theServices in any way whatsoever.
(r) You will not engage in threatening, harassing, racist, sexist or any other behavior that Bachalaash deems inappropriate when using theServices.
(s) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
(t) You will not abuse our promotional or credit code system, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first time users.
(u) You will not attempt to undertake any of the foregoing.In the event that we believe or determine that you have breached any of the aforementioned, we reserve the right to suspend and/or permanently deactivate your account at our sole discretion.
5. Merchants Are Independent
You understand and agree that Bachalaash provides a technology platform connecting you with independent service providers and others that provide the products offered through the Services (“Merchants”).You acknowledge and agree that Bachalaash does not itself prepare any of the goods, services, drinks, food, or offer delivery services, and has no responsibility or liability for the acts or omissions of any Merchant. Bachalaash is not the retailer of any products offered by Merchants, nor is it in the delivery business or a common carrier. Bachalaash provides a technology platform facilitating the transmission of orders by Users to Merchants for pickup or delivery. Bachalaash will not assessor guarantee the suitability, legality or ability of any Merchant. You agree that Bachalaash is not responsible for the Merchants’ food preparation or the safety of the food, and does not verify Merchants’ compliance with applicable laws or regulations. Bachalaash has no responsibility or liability for acts oromissions by any Merchant.You agree that the goods that you purchase will be prepared by the Merchant you have selected, that title to the goods passes from theMerchant to you at the Merchant’s location. You agree that Bachalaash does not hold title to or acquire any ownership interest in any goods that you ordert hrough the Services.
6. User Content
(a) User Content. Bachalaash may provide you with interactive opportunities through the Services, including, by way of example, the ability to respond to a request for feedback or review (collectively, “UserContent”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You hereby grant Bachalaash a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with Bachalaash’s business and in all forms now known or hereafter invented(“Uses”), without notification to and/or approval by you. You further grant Bachalaash a license to use your username and/or other User profile information, including without limitation your ratings history, to attributeUser Content to you in connection with such Uses, without notification or approval by you. You agree that this license includes the right for other Users to access and use your User Content in conjunction with participation in theServices and as permitted through the functionality of the Services. In the interest of clarity, the license granted to Bachalaash herein shall survive termination of the Services or your account. Bachalaash reserves the right inits sole discretion to remove or disable access to any User Content from theServices, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or we consider to be objectionable for any reason.You agree that Bachalaash may monitor and/or delete your User Content (but does not assume the obligation) for any reason in Bachalaash’s sole discretion. Bachalaash may also access, read, preserve, and disclose any information as Bachalaash reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request, (ii) enforce thisAgreement, including investigation of potential violations hereof, (iii)detect, prevent, or otherwise address fraud, security, or technical issues,(iv) respond to User support requests, or (v) protect the rights, property or safety of Bachalaash, its users and the public.
(b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to Bachalaash through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Bachalaash has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to Bachalaash a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.
(c) Ratings and Reviews. To the extent that you are asked to rate and post reviews of Merchants or other businesses (“Ratings” and“Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by Bachalaash and do not represent the views of Bachalaash or its affiliates. Bachalaash shall have no liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available through the Services, you agree that: (i) you will base anyRating or Review on first-hand experience with the Merchant or business; (ii)you will not provide a Rating or Review for any Merchant or business for whichyou have an ownership interest, employment relationship or other affiliation orfor any of that company’s competitors; (iii) you will not submit a Rating orReview in exchange for payment, free food items, or other benefits from aMerchant or business; and (iv) your review will comply with the terms of thisAgreement. If we determine, in our sole discretion, that any Rating or Reviewcould diminish the integrity of the Ratings and Reviews or otherwise violatesthis Agreement, we may remove such User Content without notice.
7. Communications with Bachalaash
By placing an order via a Bachalaash website, you electronically agree to accept and receive communications from Bachalaash or third parties providing services to Bachalaash including via email, text message, calls, and push notifications to the cellular telephone number you provided to Bachalaash. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Bachalaash, its affiliated companies, including but not limited to communications concerning orders placed through your account on the Services.Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may change your notification preferences by accessing the Settings in your account. To opt out of receiving promotional text messages from Bachalaash, you must reply “STOP”from the mobile device receiving the messages.
8. E-SIGN Disclosure
By placing an order via a Bachalaash website, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing Bachalaash at email@example.com with “Revoke Electronic Consent” in the subject line.To view and retain a copy of this disclosure, you will need(i) a device (such as a computer or mobile phone) with a web browser andInternet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email Bachalaash at firstname.lastname@example.org with contact information and the address for delivery.
9. Intellectual Property Ownership
Bachalaash alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or theServices, or any intellectual property rights owned by Bachalaash. Bachalaash names, Bachalaash logos, and the product names associated with the Software andServices are trademarks of Bachalaash or third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software or the Services.
10. Payment Terms
(a) Prices. You understand that: (a) the prices for menu items displayed through the Services may differ from the prices offered or published by Merchants for the same menu items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu items are sold; (b) Bachalaash has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) Bachalaash reserves the right to change such prices at any time, at its discretion. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in store totals. In those situations, Bachalaash reserves the right to charge your payment method the final price after checkout. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on Bachalaash’s income).Payment will be processed by Bachalaash, using the preferred payment method designated in your account.
(b) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. Bachalaash has no obligation to provide refunds or credits, but may grant them, in each case in Bachalaash’s sole discretion.
(c) Promotional Offers and Credits. Bachalaash, at its sole discretion, may make promotional offers with different features and different rates to any User. These promotional offers are subject to the terms of thisAgreement and may be valid only for certain Users as indicated in the offer.You agree that promotional offers: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by Bachalaash; (iii) are subject to the specific terms that Bachalaash establishes for such promotional offer; (iv)cannot be redeemed for cash or cash equivalent; and (v) are not valid for use after the date indicated in the offer or in Bachalaash’s Terms and Conditions for Promotional Offers and Credits. Bachalaash reserves the right to with hold or deduct credits or benefits obtained through a promotion in the event that Bachalaash determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. Bachalaash reserves the right to modify or cancel an offer at any time. Bachalaash may also offer gratuitous credits, which can be used for the Services. Any credit issued by Bachalaash is valid for 6 months from the date of issue except to the extent prohibited under applicable law and may not be redeemed for cash or cash equivalent. Upon expiration, credits will be removed from your account. Expiredcredits are no longer redeemable and cannot be used towards any order.
(d) Fees for Services. Bachalaash may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to Platform Fees, Delivery Fees, Service Fees, Small OrderFees, and Surge Fees. Bachalaash may also charge merchants fees on orders that you place through the services, including commissions and other fees, and may change those merchant fees as we deem necessary or appropriate for our business or to comply with applicable law.
11. Dispute Resolution
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOUTO ARBITRATE DISPUTES WITH BACHALAASH AND LIMITS THE MANNER IN WHICH YOU CANSEEK RELIEF. THIS SECTION 11 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE“ARBITRATION AGREEMENT”.
(a) Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services as a consumer of our Services, to any advertising or marketing communications regarding Bachalaash or the Services, to any products or services sold or distributed through the Services that you received as a consumer of ourServices, or to any aspect of your relationship or transactions with Bachalaash as a consumer of our Services will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Bachalaash may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before theEffective Date of this Agreement.
(b) Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Harvard Business Services, Inc. 16192Coastal Hwy, Lewes Delaware, 19958. The arbitration will be conducted by JAMSunder its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the StreamlinedArbitration Rules and procedures available athttp://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive ArbitrationRules and Procedures, available athttp://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com (under the Rules/Clauses tab) or by calling JAMSat 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, Bachalaash will pay them for you. In addition, Bachalaash will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or inperson in the country where you live or at another mutually agreed location.
(c) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Bachalaash. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including thisArbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award(or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Bachalaash.
(d) Waiver of Jury Trial. YOU AND BACHALAASH WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Bachalaash are instead electing to have claims and disputes resolved by arbitration, except as specified in section 11(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
(e) Waiver of Class or Consolidated Actions. YOU AND BACHALAASH AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Bachalaash is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 20.
(f) Opt Out. You may opt out of this Arbitration Agreement.If you do so, neither you nor Bachalaash can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Bachalaash in writing no later than 30 days after first becoming subject to this Arbitration Agreement.Your notice must include your name and address, your Bachalaash username (if any), the email address you used to set up your Bachalaash account (if you haveone), and a CLEAR statement that you want to opt out of this ArbitrationAgreement. You must send your opt-out notice to: email@example.com. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
(g) Survival. This Arbitration Agreement will survive anytermination of your relationship with Bachalaash.
(h) Modification. Notwithstanding any provision in theAgreement to the contrary, we agree that if Bachalaash makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Bachalaash.
12. Third-Party Interactions
(a) Third-Party Websites, Applications and Advertisements.The Services may contain links to third-party websites (“Third-Party Websites”)and applications (“Third-Party Applications”) and advertisements (“Third-PartyAdvertisements”) (collectively, “Third-Party Websites & Advertisements”).When you click on a link to a Third-Party Website, Third-Party Application orThird-Party Advertisement, Bachalaash will not warn you that you have left Bachalaash’s Website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under the control of Bachalaash. Bachalaash is not responsible for any Third-PartyWebsites, Third-Party Applications or any Third-Party Advertisements. Bachalaash does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third-Party Websites &Advertisements at your own risk. You should review applicable terms andpolicies, including privacy and data gathering practices of any Third-PartyWebsites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
(b) App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores(“App Store”). You acknowledge and agree that this Agreement is between you and Bachalaash and not with the App Store. Bachalaash, not the App Store, is solely responsible for the Software and the Services, including the Application and the Services, the content thereof, maintenance, support services and warranty there for, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use theApplication, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any)charged by the App Store in connection with the Application or the Services.You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using theApplication. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.
13. Transactions Involving Alcohol
You may have the option to request delivery of alcohol products in some locations and from certain Merchants. If you receive your delivery in the United States, you agree that you will only order alcohol products if you are 21 years of age or older. If you receive your delivery in another country, you agree that you will only order alcohol products if you are of legal age to purchase alcohol products in the relevant jurisdiction. You also agree that, upon pickup or delivery of alcohol products, you will provide valid government-issued identification proving your age to the Merchant delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. If you order alcohol products, you understand and acknowledge that neither Bachalaash nor the Merchant can accept your order of alcohol products, and the order will only be delivered if theMerchant accepts your order. The Merchant reserves the right to refuse delivery if you are not 21 years old, if you cannot provide a valid government issuedID, if the name on your ID does not match the name on your order, or you are visibly intoxicated. If the Merchant is unable to complete the delivery of alcohol products for one or more of these reasons, you are subject to anon-refundable $20 re-stocking fee.
You agree to indemnify and hold harmless Bachalaash and its officers, directors, employees, agents and affiliates (each, an “IndemnifiedParty”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Software orServices; (c) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Software or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. Bachalaash reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Bachalaash in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Software or Services. You agree that the provisions in this section will survive any termination of your account, thisAgreement, or your access to the Software and/or Services.
15. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BEMADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BACHALAASH MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OFTHE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES,SOFTWARE, TEXT, GRAPHICS OR LINKS. BACHALAASH DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, BACHALAASH SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.
16. Internet Delays
17. Breach And Limitation of Liability
(a) General. You understand and agree that a key element of the Services and this Agreement is your and our mutual desire to keep the Services simple and efficient, and to provide the Software and Services at low cost. You understand and agree to the limitations on remedies and liabilities set forth in this Section to keep the Software and Services simple and efficient, and costs low, for all users.(b) Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW BACHALAASH’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO BACHALAASH IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS CAP ON LIABILITY SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.(c) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OFLAW BACHALAASH SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT,PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING,EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE). THEFORE GOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE ENTIRE DISCLAIMER OF DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR FOR ANY INJURY CAUSED BY BACHALAASH’S FRAUD OR FRAUDULENT MISREPRESENTATION, SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.
18. Exclusive Venue
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Bachalaash agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Cook County if you are an Illinois citizen or resident, and in the United States DistrictCourt for the District in which you reside if you are not an Illinois citizen or resident.
If you violate this Agreement, Bachalaash may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists.In addition, at its sole discretion, Bachalaash may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, Bachalaash reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
20. Procedure for Making Claims of Copyright Infringement
It is Bachalaash’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Bachalaash by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Bachalaash’s Copyright Agent for notice of claims of copyright infringement is as follows: firstname.lastname@example.org or Registered Agent, Harvard Business Services Inc. 16192 Coastal Hwy Lewes Delaware 19958.
(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Bachalaash or any third party provider as a result of this Agreement or use of the Software orServices.
(b) Choice of Law. This Agreement is governed by the laws of the State of Delaware consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.
(c) Severability. Except as otherwise provided in thisAgreement, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
(d) Consumer Complaints. You may report complaints to theComplaint Assistance Unit of the Division of Consumer Services of you rrespective State.
(e) Accessing and Downloading the Application from iTunes.The following applies to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):
(1) You acknowledge and agree that (i) the Agreement is concluded between you and Bachalaash only, and not Apple, and (ii) Bachalaash, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(2) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App StoreSourced Application.
(3) In the event of any failure of the App Store SourcedApplication to conform to any applicable warranty, you may notify Apple, andApple will refund the purchase price, if any, for the App Store SourcedApplication to you and to the fullest extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to the App Store SourcedApplication. As between Bachalaash and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conformto any warranty will be the sole responsibility of Bachalaash.
(4) You and Bachalaash acknowledge that, as between Bachalaash and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store SourcedApplication or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(5) You and Bachalaash acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Bachalaash and Apple, Bachalaash, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(6) You and Bachalaash acknowledge and agree that Apple, andApple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right(and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as athird-party beneficiary thereof.
(7) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the AppStore Sourced Application.
(f) Notice. Where Bachalaash requires that you provide ane-mail address, you are responsible for providing Bachalaash with your most current e-mail address. In the event that the last e-mail address you provided to Bachalaash is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Bachalaash’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Bachalaash via email@example.com. Such notice shall be deemed given on the next business day after such e-mail is actually received by Bachalaash.
(g) Electronic Communications. For contractual purposes, you(1) consent to receive communications from Bachalaash in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Bachalaash provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.
(h) Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Bachalaash without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.(i) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
22. Contact Information
Bachalaash welcomes your questions or comments regarding the Terms:
Causaas LLC dba Bachalaash
Registered Agent, Harvard Business Services Inc.
16192 Coastal Hwy Lewes Delaware 19958