ALEXANDER BABBAGE, INC.
Last Modified: June 15, 2016
YOUR SERVICES ACCOUNT
To create or use a Services Account, you must be over 18 years of age. You must provide us true, accurate, current and complete information about yourself when you create your Services Account. If the information you provide is untrue, inaccurate, incomplete or outdated, or we have reasonable grounds to suspect it is, we reserve the right to suspend or terminate the Services.
You are responsible for safeguarding the password that you use to access the Services and for any activities or actions under your password, whether your password is with the Services or a third-party service. You agree not to disclose your password to any third party. Alexander Babbage cannot and will not be liable for any loss or damage arising from your failure to comply with these security requirements. You must notify Alexander Babbage immediately upon becoming aware of any breach of security or unauthorized use of your Services Trade Account.
You are expressly prohibited from using the Services to post or transmit any infringing, threatening, false, misleading, abusive, harassing, libelous, defamatory, vulgar, obscene, scandalous, inflammatory, pornographic, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law, regardless of whether that post or transmission is solely within your Organization or publicly disclosed. Alexander Babbage will cooperate fully with all law enforcement authorities and court orders requesting or directing that Alexander Babbage disclose the identity if known of any user posing the aforementioned prohibited materials on the Services.
You understand and agree that upload and download of any User Content or Babbage Content, as the case may be, through the Services are done at your own discretion and risk. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Services and User Content, including copyright laws. We reserve the right to immediately suspend or terminate your account without further notice in the event that, in our sole and absolute judgment, you violate these Terms, or abuse the use of our Services.
You represent and warrant that: (i) you own the User Content posted by you on or through the Services or otherwise have the right to grant the rights and licenses set forth in these Terms; (ii) the posting and use of User Content on or through the Services does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you post on or through the Services; (iv) the User Content will not interfere with, or disrupt, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or create an undue burden on the Services; and (v) you have the legal right and capacity to enter into these Terms in your jurisdiction.
While Alexander Babbage does not and cannot review all User Content provided to it, and is not responsible for such User Content. Alexander Babbage reserves the right to delete, edit or rearrange User Content that it, in its sole discretion, deems objectionable, in violation of copyright or trademark laws or otherwise unacceptable. You understand and agree that Alexander Babbage cannot and will not be responsible for the User Content posted on the Service and you use the Services at your own risk.
Alexander Babbage grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Services solely in accordance with these Terms. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Alexander Babbage, in the manner permitted by these Terms.
BABBAGE CONTENT AND INTELLECTUAL PROPERTY
All right, title, and interest in and to the Services including all of the wallpaper, icons, characters, artwork, images, graphics, music, text, software and other content of the Services (the “Babbage Content”), and all HTML, CGI and other code and scripts in any format used to implement the Services (the “Code”) are and will remain the exclusive property of Alexander Babbage and its licensors. Except as set forth above, you may not copy, modify, upload, download, transmit, re-publish, display for redistribution to third parties for commercial purposes, or otherwise distribute any Code or Babbage Content without the express prior written agreement of Alexander Babbage. You may not use the Babbage Content or Code for any purpose other than those set forth above. All names, logos and trademarks that appear in the Services are the property of Alexander Babbage or are used by Alexander Babbage with the permission of their owners. You may not use any of the foregoing for any purpose without the prior express written permission of Alexander Babbage. Your failure to comply with the Terms will constitute breach of contract and will violate Alexander Babbage’s copyright, trademark and other proprietary and intellectual property rights. Alexander Babbage reserves the right to enforce its intellectual property rights to the fullest extent of the law, including but not limited to seeking remedies under civil or criminal law for such violations.
TERM AND TERMINATION
These Terms will continue to apply to you until terminated by either you or Alexander Babbage. Alexander Babbage may terminate the Terms or suspend your access to the Services at any time, including in the event of your actual or suspected unauthorized use of the Services or non-compliance with the Terms and upon termination of any agreement between you, Alexander Babbage and/or your Organization. Upon termination, any User Content you have stored on the Services may no longer be retrieved. If you or Alexander Babbage terminate the Terms, or if Alexander Babbage suspends your access to the Services, you agree that Alexander Babbage shall have no liability or responsibility to you and Alexander Babbage will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law.
NO AGENCY; THIRD PARTY BENEFICIARY
Nothing in these Terms is intended to, or should be construed to create a partnership, agency, joint venture, or employment relationship between Alexander Babbage and you. Nothing expressed or mentioned in or implied from these Terms are intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to these Terms. These Terms and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of Alexander Babbage, you, and relying buyers or sellers.
The Services may provide links to third-party sites or provide content from third party sites that are not owned or controlled by Alexander Babbage. These Terms do not apply to any third party websites or their practices. It is your responsibility to become familiar with each third party site’s privacy and other policies and Terms, and to contact that site’s webmaster or site administrator with any concerns. You agree that Alexander Babbage is not responsible for any loss or damage in your dealings with such third party sites.
You may not export the Services directly or indirectly, and you acknowledge that the Services may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).
You agree to indemnify, defend, and hold Alexander Babbage and its licensees, licensors, and third party service providers (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all losses, liabilities, damages, claims, costs, losses, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising from your use of and access to the Service, including any data, User Content or Babbage Content transmitted or received by you, any other party’s access or use of the Service with your username and password, or your violation of these Terms, the Master Services Agreement, applicable law, rule or regulation.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, ALEXANDER BABBAGE AND ITS THIRD PARTY SUPPLIERS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
LIMITATION OF LIABILITY AND DAMAGES
IN NO EVENT SHALL ALEXANDER BABBAGE OR ITS THIRD PARTY SUPPLIERS BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND OR CHARACTER (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR INFORMATION, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES) THAT CLIENT, ANY CLIENT OF CLIENT, OR OTHER PARTY, SUFFERS OR INCURS ARISING OUT OF ANY ACTS OR OMISSIONS OF ALEXANDER BABBAGE OR ITS THIRD PARTY SUPPLIERS IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED HEREUNDER, REGARDLESS OF THE CAUSE OF THE LOSS, DAMAGE OR INJURY AND REGARDLESS OF THE NATURE OF THE LEGAL RIGHT CLAIMED TO HAVE BEEN VIOLATED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THE SERVICES, REGARDLESS OF THE FORM OF ACTION. ALEXANDER BABBAGE MAKES NO ASSERTION, WARRANTY OR GUARANTY WITH REGARD TO RESULTS OR OTHER OUTCOMES FROM THE SERVICES OR OTHER SERVICES IN ANY MANNER WHATSOEVER. THE CUMULATIVE LIABILITY OF ALEXANDER BABBAGE TO USERS AND ANY OTHER PARTY FOR ANY CLAIMS RELATING TO OR ARISING UNDER THESE TERMS, INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES ACTUALLY PAID TO ALEXANDER BABBAGE WITHIN THE CALENDAR QUARTER IMMEDIATELY PRECEDING THE ACT OR OMISSION CLAIMED. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF AN EXCLUSIVE REMEDY.
No party shall be liable for any default or delay in the performance of its obligations under these Terms if and to the extent such default or delay is caused directly or indirectly by a force majeure event. In any such event, the non-performing party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable.
These Terms shall be governed by Georgia law, without regard to its choice of law or conflicts of law.
DISPUTES AND ARBITRATION
In the unlikely event that Alexander Babbage has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any Alexander Babbage claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) in the city of Atlanta, Georgia under the commercial rules then in effect for the AAA, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing Alexander Babbage from seeking injunctive or other equitable relief from the courts as necessary to protect any of Alexander Babbage’s proprietary interests. The timeline for disputes, unless otherwise required by applicable law, must be commenced within one year after the cause of action accrues. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ALEXANDER BABBAGE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
These Terms with any amendments and any additional agreements you may enter into with Alexander Babbage constitute the entire agreement between the parties with respect to the Service, and supersede any previous agreements and understandings. In the event of a conflict between these Terms and the Master Services Agreement, the Master Services Agreement shall prevail, except that the Right to Amend section below shall prevail regardless of conflict. In the event of conflict between any other Alexander Babbage agreement or policy (“Additional Terms”), these Terms shall prevail.
RIGHT TO AMEND
Alexander Babbage reserves the right to amend these Terms at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, with notice that we deem, in our sole discretion, to be reasonable according to the circumstances. Notice may include notice on our website at alexanderbabbage.com. Failure to notify you of revisions shall not modify or change the effectiveness of those revisions. Any use of our Services after publication of any such change shall constitute your acceptance of these Terms as modified.
The parties intend every provision of these Terms to be severable. If any part of these Terms is not enforceable, the remaining provisions shall remain valid and enforceable. In such case, the parties will in good faith modify or substitute a provision consistent with their original intent. If any remedy fails of its essential purpose, then all other provisions, including the limitations on liability and exclusion of damages, will remain fully effective.
Any notices or demands shall be in writing and shall be made by registered or certified mail, addressed, as follows:
Alexander Babbage, Inc.
1201 Peachtree St. NE, Suite 500
Atlanta, Georgia 30361