These Terms of Use form a contract between Babiators, LLC (the “Company”) and each individual who views the Company’s website (the “Company Site”) without registering to become a Customer (with such individual being an “Unregistered User”). By continuing to use and visit the Company Site, an Unregistered User is deemed to have agreed to these Terms of Use.
1.1 Limited Permissible Use. Each Unregistered User may view the Company Site for non-commercial and personal informational uses only and not for any other purpose.
1.2 No Warranty. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. THE COMPANY SITE AND ANY INFORMATION OR SERVICES MADE AVAILABLE TO UNREGISTERED USER ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES OR THE COMPANY SITE WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
1.3 Acceptable Use Policy. Unregistered User will:
1.3.1 Utilize the Company Site and the Services only in accordance with this Agreement and any applicable law, not copy any content from the Company Site or attempt to download or “scrape” any content from the Company Site, not attempt to use any name or identifying information that is false or an alias, and not use the Company Site or any Services to facilitate the transmission of bulk commercial email or spam or for any purpose that is illegal or tortious.
1.3.2 Not publish or post any comment or content on the Company Site that is racist, derogatory, false, defamatory or made with wrongful intent, dishonest, abusive, discriminatory or any content that the Company, in its sole discretion, determines may put the Company in a negative light or may harm the Company’s goodwill or public reputation.
1.3.3 Not develop, support or use software, devices, scripts, robots or any other means or processes (including crawlers, browser plugins and add-ons, or any other technology or manual work) to scrape the Company Site or otherwise copy any content found on the Company Site.
2.1 Limitation of Liability.
2.1.1 IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES AND THE COMPANY SITE, REGARDLESS OF CAUSE, EXCEED THE AGGREGATE AMOUNT PAID TO COMPANY BY UNREGISTERED USER DURING THE 6-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, INTEGRITY OF DATA OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET.
2.1.2 COMPANY SHALL NOT BE LIABLE IN ANY WAY TO UNREGISTERED USER OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
2.1.3 The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct.
2.2 Indemnification of Company. Unregistered User shall defend, indemnify and hold harmless Company, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “Company Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the Company Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Unregistered User’s breach of this Agreement or violation of any applicable law, (ii) claims or actions of third parties against Company from any act or omission on the part of Unregistered User, and (iii) any damage to Company’s servers or other hardware caused by Unregistered User.
3.1 Independent Contractor. Company and Unregistered User are independent contractors and nothing contained in this Agreement places them in the relationship of principal and agent, partners or joint venturers. Neither party may make contracts or enter into any agreements in the name of the other party, or obligate or bind the other party in any manner whatsoever.
3.2 Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon or arising from an alleged tort, shall be governed by the substantive laws of the State of Georgia, except that all arbitration proceedings, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION MUST BE BROUGHT IN A GEORGIA STATE OR FEDERAL COURT LOCATED IN FULTON COUNTY, GEORGIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
3.3 Mandatory Arbitration. Any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted to arbitration in accordance with the Arbitration Rules of the American Arbitration Association, as administered by Resolutions Resources Corp. of Atlanta, Georgia before a single arbitrator, appointed in accordance with such rules. Any such dispute shall address only the claims brought by the applicable party and no party may represent a class of similarly situated persons. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Atlanta, Georgia. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
3.4 Entire Agreement; Amendments. This Agreement supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Use may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company Site.
3.5 Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision of this Agreement is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, the remaining provisions hereof shall constitute the parties’ agreement with respect to the subject matter hereof, and all such remaining provisions shall remain in full force and effect.
3.6 Waiver. No failure or delay to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. No waiver of any breach of this Agreement shall constitute a waiver of any succeeding breach hereof.
3.7 Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one year after the cause of action has arisen.
A Babiators Company
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