5. Registration. As a condition of using the Service, you will be required to register through the Service and select a password. You shall be responsible for maintaining the confidentiality of your password.
6. Prohibited Activities. You may not access or use the Service for any purpose other than the purpose for which we make it available to you. We may prohibit certain activities in connection with the Service in our discretion. These prohibited activities include, without limitation, the following:
- Criminal or tortious activity, including fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, or theft of trade secrets.
- Using any information obtained from the Service in order to contact, advertise to, solicit or sell any products or services to any user without their prior explicit consent.
- Interfering with, disrupting or creating an undue burden on the Service or the networks or services connected to the Service.
- Attempting to impersonate another user or person.
- Using the user I.D. or account of another user.
- Using any information obtained from the Service in order to harass, abuse or harm another person.
- Using the Service in a manner inconsistent with any and all applicable laws and regulations.
10. Cancellation by You. You may cancel your account with us at any time by contacting us using the contact information in Section 30 below. Following cancellation you will no longer have access to the Service. If you are a school administrator with a paid subscription to the Service and you cancel your subscription, then within thirty (30) days of the date of cancellation we will provide you with a pro rata refund of your subscription fees based on the portion of your subscription period that remained at the time of termination.
11. User Content. You shall be solely responsible for any data, text, photographs, graphics, video, messages, tags, images, illustrations, software, audio clips or other materials you upload or submit to the Service (“User Content”). You agree that any User Content: will be accurate; will not violate or facilitate the violation of any law or regulation; will not violate any right of a third party, including copyright, trademark, privacy, or publicity rights; will not cause injury to any person or entity; and will not contain, or provide links to, obscene, profane, or threatening language, malware, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam”, or any material that could be considered harmful, sexually explicit, indecent, lewd, violent, abusive, or degrading. You are solely responsible for the User Content you submit, and Bambinotes assumes no liability for any User Content submitted by you. You acknowledge and agree that we reserve the right (but have no obligation) to do any or all of the following, in our sole discretion: (a) monitor User Content; and (b) alter, remove, or refuse to post or allow to be posted any User Content. For any User Content you submit, you grant to Bambinotes a non-exclusive, sub-licensable, fully paid-up, perpetual, irrevocable, royalty-free, transferable right and license to use, display, perform, transmit, copy, modify, delete, adapt, publish, translate, create derivative works from, and distribute such User Content solely as necessary to provide the Service, all without compensation to you. You represent and warrant that you have all rights necessary for you to grant the licenses granted in this section. Content is also provided by other users of the Service. Please note that other users of the Service may post content that is inaccurate, misleading, or deceptive. Bambinotes neither endorses nor is responsible for any opinion, advice, information, or statements made by these other users. Bambinotes will not be liable for any loss or damage caused by your reliance on such information or materials. The opinions expressed by third parties reflect solely the opinions of the individuals who submitted such opinions and do not reflect the opinions of Bambinotes.
12. Submission of Questions and Feedback. If you submit opinions, suggestions, feedback and/or proposals to Bambinotes through the Service, or through any other communication with us, you acknowledge and agree that: (a) the submissions you provide will not contain confidential or proprietary information; (b) we are not under any obligation of confidentiality, express or implied, with respect to the submissions you provide; (c) we shall be entitled to use or disclose (or choose not to use or disclose) the submissions you provide for any purpose, in any way, in any media worldwide; (d) the submissions you provide will automatically become the property of Bambinotes without any obligation of Bambinotes to you; and (e) you are not entitled to any compensation or reimbursement of any kind from Bambinotes in connection with your submissions under any circumstances.
14. Disclaimer of Warranties. THE INFORMATION CONTAINED IN and provided through the Service, INCLUDING TEXT, GRAPHICS, LINKS, OR OTHER ITEMS, is PROVIDED “AS IS”. NEITHER Bambinotes NOR ITS SUPPLIERS WARRANT THE ACCURACY, ADEQUACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ACCESSED ON OR THROUGH THE Service AND Bambinotes EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION OR MATERIALS ACCESSED ON OR THROUGH THE Service. NO WARRANTY OF ANY KIND, WHETHER IMPLIED OR EXPRESSED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND FREEDOM FROM COMPUTER VIRUS, IS GIVEN IN CONJUNCTION WITH any INFORMATION, MATERIALS, OR SERVICES provided through the Service.
SOME STATES RESTRICT DISCLAIMERS OF IMPLIED WARRANTIES, SO THIS DISCLAIMER MAY NOT FULLY APPLY TO YOU.
15. Limitation of Liability. IN NO EVENT SHALL Bambinotes OR its THIRD PARTY SUPPLIERS BE LIABLE FOR ANY DAMAGES, LOSSES OR LIABILITIES INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES, LOSSES OR EXPENSES, including any lost profits, lost data, or lost savings, whether based on breach of contract, breach of warranty, tort or any other legal theory, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF the Service OR RELIANCE ON OR USE OR INABILITY TO USE THE INFORMATION, MATERIALS OR SERVICES provided through the Service, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, EVEN IF Bambinotes OR ITS THIRD PARTY Suppliers ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES. IN NO EVENT WILL Bambinotes AGGREGATE LIABILITY FOR ANY CLAIM EXCEED $100.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
16. Unauthorized Transactions. If you are a school administrator and you use a credit card to pay for a subscription to the Service, you are representing to Bambinotes that you are authorized to use that credit card. Any violation of this requirement will be reported to the appropriate authorities.
17. Indemnification. You agree to defend, indemnify and hold Bambinotes harmless from and against any and all claims, damages, and costs including attorneys’ fees, arising from or related to your use of the Service.
18. Governing Law and Jurisdiction. You agree that your use of the Service shall be governed by and construed in accordance with the laws of Delaware, without regard to conflict of law rules.
19. Arbitration Agreement and Waiver of Class
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
b. Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
c. Exception – Litigation of Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
d. Thirty Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth this Section by sending written notice of your decision to opt-out to the following address: 1900 University Ave | 5th Floor, East Palo Alto, CA 94303. The notice must be sent within thirty (30) days of registering to use the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms set forth above. If you opt-out of these arbitration provisions, we also will not be bound by them. In addition, if you elect to opt-out of these arbitration provisions, we may terminate your use of the Service. If we terminate your use of the Service, and you are a paid subscriber to the Service we will provide you with a pro rata refund of your subscription fees based on the portion of your subscription period that remained at the time of termination within thirty (30) days of the date of the applicable termination.
24. Non-Waiver. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
29. Notices. You consent to receive notices and other communications regarding these terms and conditions and/or other aspects of the Service through posting of notices on the Service. You agree that all agreements, notices, disclosures, and other communications that Bambinotes provides to you in accordance with the prior sentence satisfy any legal requirement that such communications be in writing.