Terms of Service
Our Agreement addresses the following topics:
1. BabySparks Does Not Provide Medical Advice
Our Website, Applications and Content are for informational purposes only. BabySparks does not provide any medical advice through its Website, Applications or Content. Any information provided through our Website, Applications or Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment.
Any information regarding your child’s progression, development or ability to perform the exercises or activities provided by our Website, Applications or Content is meant to be suggestive in nature as it is impossible to determine every child’s proper developmental progression as each child develops in a different manner and pace. You are solely responsible for determining your child’s developmental process and whether it is appropriate and safe to conduct any suggested activities and exercise with your child. If you have any suspicion of a developmental delay or any other health issue with your child, you should consult a physician or appropriate professional immediately.
You are solely responsible for determining whether your child is physically or mentally able to perform any of the exercises or activities suggested in our Website, Applications or Content. We strongly urge you to consult a doctor or appropriate healthcare provider before using any information obtained in our Website, Applications or Content, especially if your child has a special medical condition.
You are solely responsible for determining if your child requires treatment from a certified health professional. If at any time during the performance of any activity or exercise suggested in our Website, Applications or Content your child experiences any fatigue, increased or irregular heartbeat, pain, distress, crying, uncomfortableness, unwillingness or hesitation to perform, vomiting, vertigo, fainting, rash, limited range of motion, tenderness, swelling, pain, unusual sweating, or any other negative or detrimental response, stop immediately and consult a doctor. Do not resume performance of any of our suggested activities or exercises until obtaining prior approval from your child’s doctor. Never disregard professional medical advice or delay in seeking it for any reason.
The exercises, activities, methods, products, procedures and opinions in our Website, Applications or Content are solely meant to be used for informational purposes only and are not meant to provide any guaranteed results.
2. Using Good Judgment
You are solely responsible for making sure that your child is safe. Never perform any activity or exercise that you believe your child might not be developmentally ready to do. If you have any doubt about your child’s developmental ability to perform any activity or exercise, ask a healthcare professional before performing it.
BabySparks emphasizes the use of child-safe materials and toys around your child. You are solely responsible for making sure that any materials or toys used during our suggested activities or exercises are safe for your child. Avoid using materials or toys that may present a choking hazard and always monitor your child closely when using toys as many items can ultimately present a choking hazard. Activities or exercises with your child should always be performed by a competent adult in a safe environment to prevent injuries. Care should be exercised to reduce the risk of injury if the child falls down or doesn’t perform the activity or exercise in the expected or intended fashion. Activities or exercises suggested for the car must be performed by a competent adult who is not driving while the vehicle (i) is being driven at a safe speed and in a safe manner or (ii) is stopped. BabySparks cannot possibly foresee any and every possible risk to your child from the performance or participation in its suggested activities or exercises, and your use of good judgment and common sense is by far the best possible deterrent of injury to your child.
Use common sense when you use our Website, Applications or Content or any related third party website, content or applications. The Website, Applications and Content are for informational purposes only. Despite our efforts to provide useful and accurate information, errors may appear from time to time. Some of the material you find on our Website, Applications or Content was not created, edited, or posted by us (for example, discussions or group postings). The materials posted by Users or other third parties on our Website, Applications or Content represent the views of such Users or other third parties and are not endorsed by us, nor do we guarantee the accuracy of any such material. Though we hope the advertisers, merchants and Users you meet through our Website, Applications or Content treat you honorably and fairly, we can’t vouch for the information, goods, or services they offer. Before you act on information you’ve found on or through any of our Website, Applications or Content, confirm any facts that are important to your decision. We encourage you to exercise a healthy skepticism and good judgment.
To obtain access to certain BabySparks services or content on our Website, Applications or Content, you may be given an opportunity to register and obtain an account with BabySparks. Your BabySparks account gives you access to content and functionality that we may establish, maintain, change, remove, or terminate from time to time and in our sole discretion. By connecting to our Website, Applications or Content with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You are responsible for taking all reasonable steps to ensure that no unauthorized person shall have access to your BabySparks passwords or accounts. It is your sole responsibility to: (1) control the dissemination and use of sign-in name, screen name and passwords; (2) authorize, monitor, and control access to and use of your BabySparks account and password; (3) promptly inform us if you believe your account or password has been compromised or if there is any other reason you need to deactivate a password. You will notify us immediately via e-mail of any known or suspected unauthorized use of your account by using the “Contact Us” link located on our Website or Applications.
4. User Submissions and Ideas
Responsibility for what is posted in the discussion groups or other public forums on our Website, Applications or Content lies with each User. You alone are responsible for the content of your messages, and the consequences of any such messages. You agree not to use our Website, Applications or Content to send or submit materials that: (a) are false, inaccurate or misleading; (b) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (c) violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination and false advertising); (d) are libelous, threatening or harassing; (e) are obscene or contain any kind of pornography; (f) contain any viruses, Trojan horses, spyware, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (g) might create liability for BabySparks or might cause us to lose (in whole or in part) the services of our Internet service providers or other suppliers; (h) interfere with the ability of others to enjoy our Website, Applications or Content; (i) impersonate any other person or entity, whether actual or fictitious, including impersonating an employee or consultant of BabySparks; (j) link to or include descriptions of goods or services that: (i) are prohibited under this Agreement; or (ii) you do not have a right to link to or include; (k) contain any content that you do not have the right to make available under any law or otherwise, including any contractual or fiduciary relationship (such as inside information or confidential information learned under a non-disclosure agreement); or (l) instigate or encourage others to commit illegal activities or cause injury or property damage to any person.
We neither endorse nor guarantee the accuracy or propriety of any submission by a User of other third-party. We do, however, reserve the right, but do not assume the obligation, to restrict or prohibit your use of our Website, Applications or Content if we believe you are violating any of the terms of this Agreement and to remove, edit, or relocate any submission as we see fit, whether for legal or other reasons.
You may choose to or we may invite you to submit comments or ideas about our Website, Applications or Content about how to improve them (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place BabySparks under any obligation whatsoever, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea to anyone. You further acknowledge that, by acceptance of your submission, BabySparks does not waive any rights to use similar or related ideas previously known to us, or developed by our employees or Affiliates, or obtained from sources other than you.
5. Ownership and Rights
You acknowledge that: (1) we permit access to content that is protected by copyrights, trademarks, patents and other intellectual and proprietary rights (“Intellectual Property Rights”) and; (2) this Agreement and applicable copyright, trademark and other laws govern your use of such content.
Our Website, Applications or Content and all Intellectual Property Rights related thereto are the exclusive property of BabySparks and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publish, adapt, edit or create derivative works from any BabySparks Website, Applications or Content. Use of our Website, Applications or Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
6. Use of Our Website, Applications and Content
Your use of the Website, Applications or Content is limited to personal, non-commercial purposes. Your commercial exploitation of the Website, Applications or Content is strictly prohibited, unless we grant prior written permission.
Our Website, Applications and Content are protected by copyright under both United States and foreign laws. Title to and interest in our Website, Applications and Content remain with BabySparks or its licensors. Any use of our Website, Applications or Content not expressly permitted herein is a breach of this Agreement and may violate copyright, trademark, and other laws. You may use our Website, Applications or Content only if you are legally competent to enter into a binding contract with BabySparks, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Our Website, Applications and Content are not available to anyone previously removed as a User of our Web Site.
You agree not to engage in any of the following prohibited activities: copying, distributing, or disclosing (except as provided by the BabySparks limited license in Section 8) the BabySparks Website, Applications or Content in any medium, including without limitation by any automated or non-automated “scraping”; using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access our Website, Applications or Content in a manner that sends more request messages to the servers we use than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that BabySparks grants the operators of public search engines revocable permission to use spiders to copy information from babysparks.com for the sole purpose of creating publicly available searchable indices of the materials); transmitting spam, chain letters, or other unsolicited email; attempting to interfere with, compromise our system integrity or security or decipher any transmissions to or from the servers we use; taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; uploading invalid data, viruses, spyware, worms, or other software agents; collecting or harvesting any personally identifiable information, including account names, from the servers we use; using our Website, Applications or Content for any commercial or solicitation purposes; impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; interfering with the proper working of our Website, Applications or Content; accessing our Website, Applications or Content through any technology or means other than those provided or authorized by BabySparks; bypassing the measures we may use to prevent or restrict access to our Website, Applications or Content, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of our Website, Applications or Content.
Our Website, Applications or Content are subject to change or termination without notice at our sole discretion. All rights not expressly granted herein are reserved to BabySparks and its licensors. If you violate any of the terms and conditions of this Agreement, your permission to use our Website, Applications and Content automatically terminates.
Upon termination for any reason or no reason, you continue to be bound by this Agreement. You are solely responsible for your interactions with other BabySparks Users. We reserve the right, but have no obligation, to monitor interaction between you and other Users. BabySparks shall have no liability for your interactions with other Users, or for any User’s action or inaction.
You are free to encourage others to access the information on our Website, Applications and Content. We welcome links to our Website, Applications and Content. You are free to establish a hypertext link to any of our Website, Applications and Content so long as the link does not state or imply any sponsorship or endorsement of your site by us or make use of a logo without written consent of the logo owner.
Without our prior written consent, you may not frame, or in-line link to, any of the content of our Website, Content or Applications, or incorporate into any other website or service any of our intellectual property.
7. BabySparks’ Limited License to You
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, revocable license to use the BabySparks Website, Applications and Content for personal, non-commercial purposes and to display and print for your personal, non-commercial use information you receive through our Website, Applications or Content. You may not reproduce, distribute, or otherwise use any of the Website, Applications or Content or any derivative work without the prior written consent of the Intellectual Property Rights holder. Requests for permission to reproduce, distribute or otherwise use materials found on our Website, Applications or Content should be made in writing to us via email by using the “Contact Us” link located on our Website or Applications. The burden of determining whether any of the Website, Applications or Content is or is not protected by Intellectual Property Rights rests with you. BabySparks may terminate this license at any time for any reason or no reason.
This Agreement, and any rights and licenses granted under this Agreement, may not be transferred or assigned by you, but may be assigned by BabySparks without restriction. Any attempted transfer or assignment by you in violation hereof shall be null and void.
8. Your License to BabySparks
By submitting material to or through our Website, Applications and Content, you grant us and our partners, agents, affiliates and service providers (collectively, “Affiliates”), a non-exclusive, transferable, non-revocable, worldwide license to reproduce, modify and distribute such material as we see fit for any purpose in any form, media, or technology now known or later developed. You agree that we and our Affiliates may identify you as the author of any of your postings by name, email address or screen name as we see appropriate. You also permit any other User to access, display, and print such material for personal use. By submitting material to us, you are representing that such material does not violate or infringe any rights of any third party, including, but not limited to, Intellectual Property Rights. If any third-party content is included in any materials that you submit, you must obtain permission from the content owner and attribute such content to the owner.
You agree to defend, indemnify and hold harmless BabySparks, its officers, directors, managers, employees, agents, servants, contractors, Affiliates, licensors, parents, subsidiaries, shareholders, owners, members, and any other affiliated companies, entities or persons, from and against any and all claims, actions, suits, demands, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) (collectively “Claims”) arising out of or relating to: your use of and access to our Website, Applications or Content, including any data, content or material provided or received by you; your violation of any term of this Agreement, including without limitation your breach of any representations and warranties herein; your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; your violation of any applicable law, rule or regulation; any Claim that arises as a result of any of your User information or any that is submitted via your account; any other party’s access and use of our Website, Applications or Content with your unique username, password or other appropriate security code.
10. Third-Party Services
We may provide links to third-party websites, applications or content. Those third-party websites, applications or content and the parties that control them are beyond our control. We make no representations as to the content, quality, suitability, functionality or legality of any third-party websites, applications or content to which we may provide links, and you hereby waive any Claim you might have against BabySparks, its officers, directors, managers, employees, agents, servants, contractors, Affiliates, licensors, parents, subsidiaries, shareholders, owners, members, and any other affiliated companies, entities or persons (other than the providers of the third-party websites, applications or content) with respect to such websites, applications or content. You may order goods or services through links on our Website, Applications or Content from third parties. All matters concerning such goods or services, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the third parties with whom you chose to do business. We make no warranties or representations whatsoever with regard to any goods or services provided by those third parties. You will not consider us – nor will we be deemed – a party to such transactions, whether or not we may have received some form of remuneration in connection with the transaction. We will not be liable for any costs or damages arising out of or relating to any transaction (whether directly or indirectly) between you and any other person or entity.
BABYSPARKS DOES NOT WARRANT, ENDORSE, RECOMMEND, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY GOOD OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OUR WEBSITE, APPLICATIONS OR CONTENT, OR ANY HYPERLINKED THIRD-PARTY WEBSITE, APPLICATION, GOOD OR SERVICE. BABYSPARKS RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR ANY TRANSACTION AND/OR COMMUNICATION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF GOODS OR SERVICES.
11. Disclaimer of Warranties
THE BABYSPARKS WEBSITE, APPLICATIONS, CONTENT AND ANY INFORMATION, MATERIALS, GOODS AND SERVICES PROVIDED BY OUR AFFILIATES, LICENSORS, USERS, OR OTHER THIRD-PARTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF BABYSPARKS WEBSITE, APPLICATIONS, CONTENT AND ANY INFORMATION, MATERIALS, GOODS AND SERVICES PROVIDED BY OUR AFFILIATES, LICENSORS, USERS, OR OTHER THIRD-PARTIES IS AT YOUR OWN RISK.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BABYSPARKS WEBSITE, APPLICATIONS AND CONTENT AND ANY INFORMATION, MATERIALS, GOODS AND SERVICES PROVIDED BY OUR AFFILIATES, LICENSORS, USERS, OR OTHER THIRD-PARTIES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND BY BABYSPARKS, WHETHER EXPRESSED OR IMPLIED. BABYSPARKS EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF: (1) ACCURACY, (2) COMPLETENESS, (3) CURRENTNESS, (4) RELIABILITY, (5) MERCHANTABILITY, (6) FITNESS FOR A PARTICULAR PURPOSE, (7) NON-INFRINGEMENT, OR (8) TITLE.
BABYSPARKS FURTHER EXPRESSLY DISCLAIMS THAT THE WEBSITE, APPLICATIONS OR CONTENT WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL BE UNITERRUPTED OR SECURE, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BABYSPARKS, INCLUDING ON OUR WEBSITE, APPLICATIONS OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
12. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BABYSPARKS, ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SERVANTS, CONTRACTORS, AFFILIATES, LICENSORS, PARENTS, SUBSIDIARIES, SHAREHOLDERS, OWNERS, MEMBERS OR ANY OTHER AFFILIATED COMPANIES, ENTITIES OR PERSONS BE LIABLE UNDER ANY THEORY OF LIABILITY, INCLUDING UNDER CONTRACT, TORT, NEGLIGENCE OR OTHERWISE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, OUR WEBSITE, APPLICATIONS, CONTENT, OR ANY INFORMATION, MATERIALS, GOODS AND SERVICES PROVIDED BY OUR AFFILIATES, LICENSORS, USERS OR OTHER THIRD PARTIES, EVEN IF WE ARE ADVISED BEFORE HAND OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL BABYSPARKS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF OUR WEBSITE, APPLICATIONS OR CONTENT OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
WITH RESPECT TO OUR WEBSITE, APPLICATIONS, CONTENT, AND ANY INFORMATION, MATERIALS, GOODS AND SERVICES PROVIDED BY OUR AFFILIATES, LICENSORS, USERS OR OTHER THIRD PARTIES AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BABYSPARKS, ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SERVANTS, CONTRACTORS, AFFILIATES, LICENSORS, PARENTS, SUBSIDIARIES, SHAREHOLDERS, OWNERS, MEMBERS OR ANY OTHER AFFILIATED COMPANIES, ENTITIES OR PERSONS SHALL NOT BE LIABLE FOR ANY (I) ERRORS, MISTAKES, OMISSIONS OR INACCURACIES ; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR WEBSITE, APPLICATIONS, CONTENT OR ANY INFORMATION, MATERIALS, GOODS AND SERVICES PROVIDED BY OUR AFFILIATES, LICENSORS, USERS OR OTHER THIRD PARTIES; (III) UNAUTHORIZED ACCESS TO OR USE OF SERVERS WE USE AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVERS WE USE; (V) BUGS, VIRUSES, TROJAN HORSES, SPYWARE OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVERS WE USE BY ANY THIRD PARTY; (VI) LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF OUR WEBSITE, APPLICATIONS, CONTENT OR ANY INFORMATION, MATERIALS, GOODS AND SERVICES PROVIDED BY OUR AFFILIATES, LICENSORS, USERS OR OTHER THIRD PARTIES AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
IN NO EVENT SHALL BABYSPARKS, ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SERVANTS, CONTRACTORS, AFFILIATES, LICENSORS, PARENTS, SUBSIDIARIES, SHAREHOLDERS, OWNERS, MEMBERS OR ANY OTHER AFFILIATED COMPANIES, ENTITIES OR PERSONS BE LIABLE TO YOU FOR ANY CLAIMS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO BABYSPARKS HEREUNDER OR $100.00, WHICHEVER IS GREATER. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. Discontinuance or Modifications to Our Website, Applications and Content
At any time without liability to you or any third party, we may discontinue, terminate, suspend change, or make modifications to the Website, Applications, Content or any portion thereof and/or otherwise restrict access to our Website, Applications, or Content.
14. Applicable Law
Users who choose to access our Website, Applications or Content from states within the United State of America do so on their own initiative and are responsible for compliance with applicable local, state and federal laws. Users who access or use our Website, Applications or Content from jurisdictions outside of the United States do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign and local laws and regulations, including but not limited to export and import regulations. You may not use our Website, Applications or Content if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
This Agreement and any Claims arising out of or relating to this Agreement, our Website, Applications or Content shall be governed by the laws of the State of Florida, without regard to its conflict of laws principles.
15. Dispute Resolution, Jurisdiction, Arbitration and Class Action Waiver
For any dispute or Claim against BabySparks, you agree to first email us and attempt to resolve the dispute or Claim with us informally. To send us an email, use the “Contact Us” link located on our Website or Applications. In the unlikely event that we cannot resolve a dispute or Claim after attempting to do so informally, we each agree to resolve any dispute or Claim (excluding any Claims brought by BabySparks for injunctive or other equitable relief as set forth below) arising out of or relating to this Agreement, the breach or alleged breach thereof, the Website, Applications or Content, either in small claims court in the United States (and specifically in Miami-Dade county, Florida, as agreed to below) or by binding arbitration with the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in Miami-Dade County, Florida, unless you and BabySparks agree otherwise. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall award to the prevailing party, if any, as determined by the arbitrator its 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. For any small claims matters, we each agree such Claims shall be brought exclusively in the small claims courts in Miami-Dade County, Florida (to the extent permissible under the Miami-Dade County small claims courts) and the parties consent to personal jurisdiction in the Miami-Dade County small claims courts.
Nothing in this Section shall prevent BabySparks from seeking injunctive or other equitable relief from a court of competent jurisdiction, including to prevent the actual or threatened infringement, misappropriation, or violation of data security, Intellectual Property Rights, or other proprietary rights. You agree to submit exclusively to the personal jurisdiction of the federal and state courts located in Miami-Dade County, Florida for any such action.
ALL CLAIMS MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE EACH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
BabySparks may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our Website, Applications or Content, as we determine in our sole discretion. BabySparks reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described below. BabySparks is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
By providing BabySparks your email address you consent to our using the email address to send you service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of our Website, Applications and Content and special offers. If you do not want to receive such email messages, you may opt out by following the “unsubscribe” link at the bottom of our email. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
In the event that any provision (or part thereof) of this Agreement conflicts with the law under which this Agreement is to be construed or if any provision (or part thereof) is held invalid by a court or arbitrator with jurisdiction over the parties to the Agreement, such provision (or part thereof) will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. Section headings are for convenience only and shall not be part of the terms and condition of this Agreement.
If either party fails to insist upon or enforce strict performance by the other party of any provision of the Agreement, or to exercise any right under the Agreement, such a failure will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and BabySparks’ failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
This Agreement constitutes the entire understanding between the parties as to the subject matter hereof, and supersedes all prior agreements and understandings relating to such subject matter.
Last modified on April 6th, 2015