TERMS OF SERVICE
Welcome to BadJupiter. BadJupiter provides a platform through which users can capture, share, and discover all the best places and experiences for themselves (the "Services"). The websites at https://www.badjupiter.com and https://bj.cards (collectively, the "Websites"), BadJupiter's software (as modified, the "Software") and the various other related services, and other features, functions, software, applications and websites are provided and operated, and are being made available to you and the other users by BadJupiter, Inc. ("BadJupiter", "we", "our" or "us").
These Terms contain an Arbitration provision which will, with limited exception, require you to submit disputes you have against BadJupiter to binding and final arbitration. You will only be permitted to pursue claims against BadJupiter on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
2. To access and use the Services, the Websites and the Software, you must be at least 13 years of age. BY CLICKING THE "I AGREE" BUTTON, BY DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICES OR THE WEBSITES, YOU REPRESENT THAT:
- YOU HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE WEBSITES OR SERVICES;
- YOU CONFIRM THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BADJUPITER;
- YOU WILL COMPLY WITH THESE TERMS AND ALL APPLICABLE LOCAL, STATE, NATIONAL AND INTERNATIONAL LAWS, RULES AND REGULATIONS; AND
- YOU ARE NOT A COMPETITOR OF BADJUPITER AND DO NOT INTEND TO USE THE SERVICES FOR REASONS THAT ARE IN COMPETITION WITH BADJUPITER FOR ANY REASON.
4. Modification of Terms of Service. These Terms of Service may be changed, modified, supplemented or updated by BadJupiter from time to time. If BadJupiter updates these Terms, it will update the "last updated" date at the bottom of the Terms. Please check these Terms periodically for changes. Your continued use of the Websites or the Services after the posting of changes constitutes your binding acceptance of such changes. If BadJupiter makes a material change to these Terms or Service that will affect an existing Service, BadJupiter will use commercially reasonable efforts to notify you by posting a notice on your account administration page. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SERVICES AND THE WEBSITES. To the extent that any modifications to the Terms are not allowed under applicable laws, the prior most recent version of the Terms shall continue to apply.
5. Account Management. To purchase, use or access certain Services, you must have a valid BadJupiter account. You will be prompted by our Websites to create an account or to login using your account credentials for such Services. You are entirely responsible for maintaining the confidentiality of your account and for any and all activities that occur under your account. You agree to immediately notify BadJupiter upon learning of any unauthorized use of your account or any other breach of security.
6. Service Termination and Suspension.
(a) Termination. You agree that BadJupiter in its sole discretion, for any or no reason, and without penalty, may terminate your access and use of the Services or any account (or any part thereof) that you may have with BadJupiter and remove and discard all or any part of your account, user profile, at any time. BadJupiter may also in its sole discretion and at any time prohibit you from accessing and using the Services or discontinue providing access to the Services, or any part thereof, with or without notice. You agree that any termination of your ability to access or use the Services or any account you may have or portion thereof may be effected without prior notice, and you agree that BadJupiter will not be liable to you or any third party for any such termination. BadJupiter reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing BadJupiter to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies that BadJupiter may have at law or in equity. As provided herein, BadJupiter does not permit copyright infringing activities on the Websites or the Services, and BadJupiter shall be permitted to terminate access to the Services. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD BADJUPITER HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY BADJUPITER DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER BADJUPITER OR LAW ENFORCEMENT AUTHORITIES.
(b) Suspension. BadJupiter reserves the right to suspend your access and use of the Services as it may deem appropriate in response to actual or suspected violations of these Terms if BadJupiter reasonably concludes that the Services are being used to engage in illegal activity, used outside the scope of the license or causing immediate, material and ongoing harm to BadJupiter or others. You agree that BadJupiter shall not be liable to you nor to any third party for any suspension of the Service under such circumstances as described in this Section 6(b).
(c) Survival. Upon termination of these Terms, your use of the Websites, the Services or your relationship with BadJupiter, any provision which, by its nature or express terms should survive, will survive such termination, including, but not limited to, Sections 1, 8, 9, 11 - 13, 15, 16, 18 -23 and this Section 6(c).
7. Right to Access and Use. Subject to these Terms, BadJupiter grants to you, and you accept, the non-assignable, nontransferable, non-sublicensable, and nonexclusive right to access and use the Services and the Websites in accordance with the related documentation on the Websites. You may terminate your use of the Services and your account (if any) at any time. After such termination, you must refrain from using the Services until authorized by BadJupiter,
8. Ownership. BadJupiter (or its licensors) retains all right, title, and interest in the Websites, the Services and the Software, including any and all intellectual property rights. BadJupiter (or its licensors) reserve all rights not expressly granted. The Websites, the Services and the Software are protected by United States copyright and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Unless expressly authorized in a separate written agreement between you and BadJupiter, the grant to access and use any of the Services and Software herein, whether purchased for a fee or free, does not include any right to resell the Services or Software, manage the Services on behalf of third parties, make other commercial use or distribution of the Services or Software or to make any derivative use of Services or Software, integrate the Services into another service, reproduce, duplicate, copy, or otherwise exploit for any commercial purpose the Services or Software. BadJupiter shall own and have the right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Websites, the Services or the Software without restriction or payment of any kind to you.
9. User Content.
(a) Limited License Grant to BadJupiter. The Services may now or in the future permit the submission and/or posting comments and other information by you or other users, in each case whether or not made available to other users ("User Content"). By uploading, providing, posting, distributing or disseminating any such User Content to or through the Services, you hereby grant to BadJupiter a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, modify and otherwise exploit your User Content (and any copyrights, publicity, database and other proprietary rights therein), in connection with the operation, maintenance and support of the Services and the Websites.
(b) User Content and Confidential Information. You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your User Content and the consequences of posting any User Content. By uploading and publishing your User Content, you affirm, represent, and warrant that: (a) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to post this User Content; (b) your User Content does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity; and (iii) your User Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of any of the Services. Violators of these third-party rights may be subject to criminal and civil liability. BadJupiter reserves all rights and remedies against any Users who violate these Terms.
(c) Content Disclaimer. You understand that when using the Services or the Websites, you may be exposed to User Content or other materials from a variety of sources, and that BadJupiter is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such User Content and other content. You further understand and acknowledge that you may be exposed to User Content and other materials that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against BadJupiter with respect thereto. BadJupiter does not endorse any User Content and other material or any opinion, recommendation or advice expressed therein, and BadJupiter expressly disclaims any and all liability in connection with such User Content and other materials. If notified by a user or a content owner of any User Content or other content or materials that allegedly do not conform to these Terms, BadJupiter may investigate the allegation and determine what recourse (if any) it might have. For clarity, BadJupiter does not permit copyright infringing activities on or through any of the Services or Websites.
10. Prohibited Use. You will not: (i) use the Services or Software for any unlawful, unauthorized, fraudulent or malicious purpose, (ii) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Services or Software (except to the limited extent applicable laws specifically prohibit such restriction); (iii) bypass any measures BadJupiter may use to prevent or restrict access to the Services or Software or otherwise interfere with any other party's use and enjoyment of the Services; (iv) use your account, the Services or Software to infringe any intellectual property or other right of any other third party, (v) use bots or other automated methods to: access the Services, download any information, send or redirect messages or perform any other activities through the Services, (vi) upload invalid data, viruses, worms or other software agents through the Websites and/or the Services, (vii) use the Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment, (vii) use the Services for any commercial solicitation purposes or (viii) use the Services or the Websites in breach of these Terms.
11. Warranty Disclaimer. Content and other information, including any User Content, contained within the Services and the Websites has been prepared or is being provided by BadJupiter as a convenience to its users and is not intended to constitute advice or recommendations upon which a user may rely. BadJupiter makes no warranty or guarantee about the accuracy, completeness, or adequacy of any such content or other information, including any User Content, contained in or linked to the Services or the Websites. Users relying on such content or other information, including any User Content, from the Services and the Websites do so at their own risk. YOUR USE OF THE WEBSITES, THE SERVICES AND THE SOFTWARE IS AT YOUR SOLE RISK. THE WEBSITES, ALL SERVICES AND THE SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND BADJUPITER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND SATISFACTORY QUALITY AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. BADJUPITER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS MAKE NO WARRANTY THAT THE WEBSITES, THE SERVICES OR SOFTWARE ARE ACCURATE, TIMELY, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, OR THAT ANY PROBLEMS ENCOUNTERED WILL BE CORRECTED.
12. Limitation of Liability. IN NO EVENT SHALL BADJUPITER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICES OR SOFTWARE (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION). IN NO EVENT SHALL BADJUPITER'S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS, THE WEBSITES, THE SERVICE AND THE SOFTWARE EXCEED THE GREATER OF (A) THE AMOUNT PAID BY YOU TO BADJUPITER IN THE PRECEDING TWELVE (12) MONTHS OR (B) $50.00. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.
13. Indemnification. You agree to defend, indemnify and hold harmless BadJupiter, its members, affiliates and/or partners, and its and their officers, directors, partners, shareholders agents, licensees and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney's fees that may, at any time, arise out of or relate to (i) your unauthorized or unlawful use of the Services or Software, (ii) your breach of these Terms as stated herein or (iii) the infringement by you or any third party using your account, of any intellectual property or other right of any third party. BadJupiter reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will assist and cooperate with BadJupiter in asserting any available defenses.
14. Force Majeure. BadJupiter shall not be liable for any failure or delay in performance due in whole or in part to any cause beyond its reasonable control or its contractors, agents, licensors or suppliers, including but not limited to utility or transmission failures, power failure, strikes or other labor disturbances, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.
15. Notices. Any notices to you from BadJupiter regarding the Services or these Terms will be posted on the Websites or made by e-mail or regular mail. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your BadJupiter account, which you may not be able to opt-out from receiving them unless you terminate your account. Any notice or communication that you desire or are required to send BadJupiter under these Terms should be sent to BadJupiter through one of the means listed in the Contacting Us section below.
17. Export Controls. You acknowledge that the Services and Software may be subject to the U.S. Export Administration Regulations (the "EAR") and the sanctions programs administered by the Office of Foreign Assets Control ("OFAC") and that you will comply with the EAR and OFAC sanctions. You will not export or re-export the Services or Software, directly or indirectly, to: (1) any countries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, Syria and Crimea); (2) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; or (3) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the US government. Further, you will not use the Services from locations subject to comprehensive OFAC sanctions. In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Services or Software.
18. Governing Law and Dispute Resolution. If a dispute arises between you and BadJupiter, the goal is to provide you with a neutral and cost-effective method of resolving the dispute quickly. Accordingly, you and BadJupiter agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the BadJupiter Community, the Site, or the other BadJupiter Services (a "Dispute") will be resolved in accordance with this Section 18 or as BadJupiter and you otherwise agree in writing. Before resorting to these dispute methods, BadJupiter strongly encourages you to first contact BadJupiter directly to seek a resolution.
(a) Choice of Law. These Terms shall be governed in all respects by the laws of the State of Texas, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR OTHERWISE IN CONNECTION WITH THESE TERMS OR ANY OF THE BADJUPITER SERVICES.
(b) Arbitration and Class Action Waiver.
PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
(i)ARBITRATION. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND BADJUPITER (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS, THE SERVICES, THE SOFTWARE OR THE WEBSITES, INCLUDING WITHOUT LIMITATION YOUR RIGHTS OF PRIVACY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION'S RULES FOR ARBITRATION AND YOU AND BADJUPITER HEREBY EXPRESSLY WAIVE TRIAL BY JURY. ANY ARBITRATION SHALL BE IN ENGLISH AND THE PLACE OF ARBITRATION SHALL BE AUSTIN, TEXAS. YOUR ARBITRATION FEES AND YOUR SHARE OF ARBITRATOR COMPENSATION SHALL BE GOVERNED BY SUCH RULES. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND BADJUPITER WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU MAY BRING DISPUTES ONLY ON YOUR OWN BEHALF. Neither you nor BadJupiter will participate in a class action or class-wide arbitration for any disputes covered by these Terms to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST BADJUPITER INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if BadJupiter is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
(ii) Judicial Forum for Disputes. In the event that the agreement to arbitrate under Section 18(b) is found not to apply to you or your claim, you and BadJupiter agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts covering Austin, Texas. Both you and BadJupiter irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, BadJupiter may bring a claim for equitable relief in any court with proper jurisdiction.
(iii) Survival. This arbitration agreement will survive the termination of your use of the BadJupiter Community or any of the other BadJupiter Services or your relationship with BadJupiter.
(c) 30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in Section 18(b) above by sending written notice of your decision to opt-out to firstname.lastname@example.org. The notice must be sent to BadJupiter within thirty (30) days of your use of any of the BadJupiter Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
(d) Improperly Filed Claims. All claims you bring against BadJupiter must be resolved in accordance with this Section 18. All claims filed or brought contrary to this Section 18 shall be considered improperly filed. Should you file a claim contrary to this Section 18, BadJupiter may recover attorneys' fees and costs up to $10,000, provided that BadJupiter has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
(e) Prevailing Party. In the event that either party institutes any arbitration, legal suit, action or proceeding against the other party arising out of or relating to these Terms, the Services, the Software or the Websites, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys' fees and expenses and court costs.
(f) Limitation on Time to File Claims. ANY CAUSE OF ACTION OR DISPUTE YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICES, THE SOFTWARE OR THE WEBSITES OR YOUR RELATIONSHIP WITH BADJUPITER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR DISPUTE IS PERMANENTLY BARRED.
19. No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
20. Geographic Restrictions. BadJupiter is based in the state of Texas in the United States. BadJupiter makes no claims that accessing or using or that any of the Services or any of the content, including any User Content, is accessible or appropriate outside of the United States. Accessing or using the Websites, the Services or the Software may not be legal by certain persons or in certain countries. If you access the Websites, the Services or the Software from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against BadJupiter with respect thereto.
21. Electronic Communications. The communications between you and BadJupiter use electronic means, whether you visit the Websites or the Services or send BadJupiter e-mails, or whether BadJupiter posts notices on the Websites or the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from BadJupiter in an electronic form; and (b) agree that all terms, conditions, agreements, notices, disclosures, and other communications that BadJupiter provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect any statutory rights that you might have.
22. Disclosures. If you are a California resident, you may have this same information emailed to you by sending a letter to BadJupiter, Inc., 1800 E 4th St Suite 172 Austin, TX 78702 with your email address and a request for this information.
California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
23. Contacting Us. If you have any questions or concerns about these Terms of Service, please contact us at email@example.com or at BadJupiter, Inc. 1800 E 4th St Suite 172 Austin, TX 78702. We will use commercially reasonable efforts to respond to your questions or concerns as promptly as possible after we receive them..
These Terms of Service were last updated and posted on October 4, 2019.