End User License Agreement and Terms and Conditions
Last Updated: August 2020
The Terms and Conditions herein (hereinafter “Terms”) of this End User License Agreement and Terms and Conditions (hereafter “EULA”) provided by BabaFi, Inc. (hereafter “BabaFi”) (located at 1955 1st Avenue, NY, 10029 NY) pertain to users who wish to create an account for use of the BabaFi Services. Users are advised to read the Terms of this Agreement carefully, as they comprise a binding legal agreement that applies to users of the Services.
By accessing or using the BabaFi Services you (the user of the Services) creating a BabaBi account you agree to be bound by these Terms. If you disagree with any part of the terms, then you may not create a BabaFi account.
The Services provide assistance, though software and personal interaction, to individuals in seeking rental apartments, presenting an offer for qualification for acceptance as a renter and obtaining services for moving from an existing home into a new apartment. BabaFi does not sell, rent, trade, or monetize personal information of the users.
“Account” means a user’s subscription and/or means to access the System.
“Applicable Law(s)" means all applicable laws, regulations, rules, and guidance to which You are subject, whether by jurisdiction or organizational affiliation,
“Confidential Information” means any information concerning BabaFi’s business, financial affairs, current or future products or technology, trade secrets, workforce, customers or any other information that is treated or designated by BabaFi as confidential or proprietary, or would reasonably be viewed as confidential, proprietary, or as having value to competitors.
“Content” means data and electronic information of any kind, including but not limited to text, digital images, geolocation information and metadata, uploaded or otherwise provided to the Services and/or the System.
“Intellectual Property” means any and all software, technology, specifications, databases, code and all copyrights and all other intellectual property rights in and to the foregoing, including all derivative works, enhancements, customizations, modifications or upgrades thereto, owned, created, or provided by BabaFi in connection with the Services or otherwise
“Notice” means the posting of any modification or amendment (on the system/on the website) thirty (30) days prior to the date upon which the modification or amendment becomes effective.
“Personal Information” means information that identifies you personally as a User of the System and all pertinent information concerning you and your use of the System.
“Services” means BabaFi mobile applications, web applications, website, servers and networks, wherever situated or made available to you.
“Software” means the coded instructions, data and metadata for the Services to which you will be, by execution of this Agreement, granted a license and access.
“System” means the BabaFi mobile applications, web applications, website, servers and networks, wherever situated.
“User” means you and any other User of the System.
“User ID” means a unique User identification used by a User to access the System.
AUTHORITY TO ENTER AGREEMENT
If you are entering into this Agreement on behalf of a company or business, you represent that you have the authority to bind such entity, its Members, Owners, and its affiliates to this Agreement. In that case, the terms “you” or “your” shall also refer to such entity, its Members, its Owners, and its affiliates, as applicable. If you do not have such authority, or if you do not agree with this Agreement, you may not use the System or any of the BabaFi applications.
Grant of License
LICENSE TO USE YOUR CONTENT
You hereby provide an irrevocable, non-exclusive, worldwide license to BabaFi of any intellectual property rights, whether copyrights, trademarks, trade dress, patents, trade secrets, rights of publicity or right of privacy, which you may have in any Content or other materials (the “Licensed Materials”) which you may provide to the System so as to, among other things, allow BabaFi (a) to operate and maintain the System for its intended uses as specified in this Agreement, (b) to maintain and reproduce such Licensed Materials within the System as permitted by applicable law, (c) to provide access to such Licensed Materials to approved users, and (d) to incorporate such anonymized Licensed Materials into derivative works as permitted by law, including, but not limited to, publications concerning statistical research, statistical compilations and reports on or about the System.I
Ownership and Intellectual Property
The Software is owned by BabaFi and its licensors and is protected by the federal intellectual property and copyright laws of countries within the United States, European Union, Canada, and through certain international treaty provisions. BabaFi and its licensors own and retain all rights, title and interest including, patents, trade-marks, copyrights, trade secrets and other intellectual property rights in and to the Software, including but not limited to, source codes, images, photographs, animation, themes, titles, characters, video, audio, music, and text embodied or contained, therein. You may make one copy of the Software solely for backup or archival purposes provided that the copy you make contains all of the Software’s proprietary notices unaltered and unobstructed and whether they refer to BabaFi or its licensors. If this Software contains user documentation which is provided only in “on-line” or electronic form, you may print one (1) copy of such documentation for backup or archival purposes. You may not copy the printed materials accompanying the Software for purposes other than mentioned herein. Nothing in this Agreement shall be construed as granting to you any title and intellectual property rights in and to the Software, except for the limited license mentioned herein.
RIGHT, TITLE AND INTEREST
You acknowledge that all right, title and interest in any and all technology, including the software and hardware (if any) provided by BabaFi in connection with the Services and any trademarks or service marks of BabaFi or third parties (including but not limited to, as permitted by law, “BabaFi)” whose products or services are utilized in connection with BabaFi’ provision of the Services (other than information you provide) (collectively, the “BabaFi Intellectual Property”) is vested in BabaFi and/or in BabaFi’ licensors. Unless otherwise expressly stated in this Agreement, you shall have no right, title, claims or interest in or to the BabaFi Intellectual Property, and you may not use, copy, modify or in any way translate the BabaFi Intellectual Property or related documentation, or decompile, disassemble or reverse engineer the BabaFi Intellectual Property, or grant any other person or entity the right to do so. Unless otherwise expressly stated in this Agreement, you are not authorized to distribute or to authorize others to distribute the BabaFi Intellectual Property in any manner without the prior written consent of BabaFi.
LICENSE TO USE YOUR CONTENT
You may not rent, lease, loan, or grant a security interest in the Software, or transfer your license to use the Software. You may not reverse-engineer, decompile or disassemble the Software. You may not modify, distribute copy, adapt, translate, or create derivative works based upon the Software and all accompanying materials.
This Agreement is effective for an unlimited duration unless and until terminated in or suspended accordance with this section. You may terminate this Agreement at any time. Without prejudice to any other rights it may have, BabaFi may terminate this Agreement if you do not abide with the terms and conditions contained herein. You agree that any terminations and suspensions for cause shall be made in BabaFi’s sole discretion and that BabaFi shall not be liable to your r any third party for any termination or suspension of your account; loss of storage, associated email addresses or access to the Website or Services.
DISCLAIMER REGARDING LEGAL, TAX, ACCOUNTING OR FINANCIAL INFORMATION
THE WEBSITE AND SERVICES ARE NOT A SUBSTITUTE FOR, AND DO NOT PROVIDE, LEGAL, TAX, ACCOUNTING OR FINANCIAL ADVICE. THE WEBSITE AND APPLICATIONS ARE PROVIDED FOR PERSONAL EDUCATIONAL, INFORMATIONAL, AND CONVENIENCE PURPOSES ONLY AND ARE NOT TO BE USED FOR THE PROVISION OF LEGAL, TAX, ACCOUNTING OR FINANCIAL ADVICE UNLESS OTHERWISE EXPLICITLY SPECIFIED BY A BABAFI CPA. THE WEBSITE IS GENERAL IN NATURE AND IS NOT INTENDED FOR ANY PARTICULAR PURPOSE, INCLUDING, IN ANY WAY, TO BE A SUBSTITUTE FOR LEGAL, TAX, FINANCIAL OR ACCOUNTING ADVICE OF ANY KIND FOR WEBSITE AND/OR SERVICES END USERS. THE CONTENT IS LIMITED TO PROVIDING END USERS WITH ACCESS ONLY TO INFORMATION ABOUT BABAFI AND SERVICES IT OFFERS. ALWAYS SEEK THE ADVICE OF APPROPRIATELY QUALIFIED AND REGULATED LEGAL, TAX, ACCOUNTING AND/OR FINANCIAL ADVISORS WITH ANY QUESTIONS YOU MAY HAVE WITH REGARD TO A SPECIFIC TAX, FINANCIAL OR ACCOUNTING QUESTION. RELIANCE ON ANY INFORMATION PROVIDED IN THE CONTENT IS SOLELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR THE USE OF THE INFORMATION.
ADDITIONAL DISCLAIMERS; NO WARRANTIES
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES, CONTENT ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES YOU ASSUME ALL RISKS AND RESPONSIBILITIES ASSOCIATED WITH THE SELECTION AND USE OF THE CONTENT AS AN AID IN ACHIEVING YOUR PERSONAL GOALS AND OBJECTIVES, AND FOR THE INSTALLATION OF, USE OF AND RESULTS OBTAINED FROM THE SERVICES OR CONTENT. BABAFI MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTION OR FAILURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BABAFI DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE SERVICES AND THE ACCOMPANYING WRITTEN MATERIALS.
YOU AGREE THAT BABAFI TAKES NO RESPONSIBILITY FOR AND DISCLAIMS ANY AND ALL LIABILITY ARISING FROM ANY INACCURACIES OR DEFECTS IN THE INFORMATION, CONTENT OR WEBSITE DATA, COMMUNICATION LINES, INTERNET OR YOUR INTERNET SERVICE PROVIDER ("ISP"), COMPUTER HARDWARE OR SOFTWARE, OR ANY OTHER SERVICE OR DEVICE THAT YOU USE TO ACCESS THE SERVICES.
YOU ACKNOWLEDGE THAT ACCESS TO THE SYSTEM WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, "CARRIER LINES") OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND OUR CONTROL. WE ASSUME NO LIABILITY FOR OR RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS.
Limitation of Liability
YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE WEBSITE, SERVICES AND THE INFORMATION CONTAINED THEREIN. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BABAFI BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA, DAMAGE TO EQUIPMENT, HARDWARE OR SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, BREACH OF CONTRACT OR ANY OTHER THEORY, UNLESS THE INABILITY TO USE THE WEBSITE OR CONTENT RESULTS FROM THE INTENTIONAL CONDUCT OR GROSS NEGLIGENCE OF BABAFI, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BABAFI MAKES NO WARRANTY OR REPRESENTATION THAT THE INFORMATION OR FUNCTIONS CONTAINED IN THE SERVICES WILL MEET YOUR REQUIREMENTS. FURTHERMORE, BABAFI DOES NOT WARRANT THAT ALL ERRORS, DEFECTS OR INEFFICIENCIES WILL BE CORRECTED, NOR DOES BABAFI ASSUME ANY LIABILITY FOR FAILURE TO PROVIDE SUPPORT SERVICES AND TO CORRECT ANY SUCH ERROR, DEFECT OR INEFFICIENCY. YOU UNDERSTAND THAT UNDER NO CIRCUMSTANCES SHALL BABAFI BE LIABLE FOR ANY INDIRECT, SPECIAL, ACCESSORY, EXEMPLARY OR PUNITIVE DAMAGES SUFFERED BY YOU, ANY PARTY CLAIMING ON BEHALF OF OR THROUGH YOU, OR ANY OTHER THIRD PARTY INCLUDING FROM OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF BABAFI UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100) USD..
Unauthorized Access; Lost or Corrupt Data
WE ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR DATA, FACILITIES, OR EQUIPMENT BY INDIVIDUALS OR ENTITIES USING THE SERVICES OR SYSTEM OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SERVICES OR SYSTEM, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE
Consent to Share Personal Information; Privacy
Consent: You agree, by clicking “I Accept” at the end of this Agreement, that we may contact you with regard to our services and products, including but not limited to services with regard to renewal of a lease obtained through the Services.
You agree that you are solely responsible for: (a) the selection of the Software to achieve your intended results; (b) obtaining, provisioning, configuring, maintaining, paying for, and protecting your personal information from loss and damage to all equipment and services necessary for the installation and use of the Software and all data used in association with the Software; (c) providing a safe and suitable location and environment for the installation and use of the Software; (d) the use, installation, implementation and operation of the Software and the results obtained therefrom; (e) scanning for and preventing the receipt and transmission of viruses, Trojan horses, worms or other destructive or disruptive components; and (f) maintaining complete and current backup and archival copies of all data contained on your device prior to installing or using the Software.
Compliance with Applicable Laws
It is your responsibility to comply with, and ensure that your use of the Software complies with, all applicable local, state, provincial, national, and foreign laws and regulations, including without limitation all laws relating to data privacy, international communications and the exportation and transmission of technical data and other regulated materials. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. The Software is not available in all languages nor is it available in all countries, notwithstanding that the Software may be accessed from, displayed on or linked to a particular device. Neither BabaFi nor its licensors make any representation that the Software is appropriate or available for use in any particular location. To the extent you choose to access the Software, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. BabaFi and its licensors reserve the right to change, suspend, remove, or disable access to the Software at any time without notice. In no event will BabaFi or its licensors be liable for the removal of or disabling of access to any such Software.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS BABAFI, ITS LICENSORS AND OTHER USERS, AND OUR AND THEIR AFFILIATES, OFFICERS, DIRECTORS, AND AGENTS, FROM AND AGAINST ANY CLAIM, COST OR LIABILITY, INCLUDING REASONABLE ATTORNEYS' FEES, ARISING OUT OF: (A) THE USE OF THE SYSTEM BY YOU; (B) ANY BREACH BY YOU OF ANY REPRESENTATIONS, WARRANTIES OR AGREEMENTS CONTAINED IN THIS AGREEMENT; (C) THE ACTIONS OF ANY PERSON GAINING ACCESS TO THE SYSTEM UNDER A USER ID ASSIGNED TO YOU; (D) THE ACTIONS OF ANYONE USING A USER ID, PASSWORD OR OTHER UNIQUE IDENTIFIER ASSIGNED TO YOU THAT ADVERSELY AFFECTS THE SYSTEM OR ANY INFORMATION ACCESSED THROUGH THE SYSTEM, INCLUDING BUT NOT LIMITED TO A SECURITY BREACH; AND (E) YOUR NEGLIGENT OR WILLFUL MISCONDUCT.
Severability and Complete Understanding
If any provision of this Agreement is found to be contrary to law or otherwise invalid or unenforceable by a court of competent jurisdiction, then such provision shall be limited to the minimum extent necessary to effect the order of the court and construed in a way to most closely reflect the intentions of the parties. All other provisions shall remain in full force and effect. BabaFi’ failure to insist on or enforce strict performance of this Agreement shall not constitute a waiver of any provision or any right, nor shall any course of conduct between BabaFi and you or any other party be deemed to modify any provision of this Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding to the parties and supersedes and cancels all previous written, oral, or other agreements, communications, and understandings relating to the subject matter of this Agreement. Both parties further agree that any waivers and modifications must be in writing and signed by both parties, expect as otherwise provided in this Agreement. No agency, partnership, joint venture, employment, or other kind of relationship is created as a result of this Agreement unless expressly granted by the terms of this Agreement and you do not have any authority of any kind of bind BabaFi in any respect whatsoever BabaFi may assign this Agreement and its rights and obligations hereunder without your consent or the consent of any persons you represent.
Dispute Resolution: Arbitration
Any controversy or claim arising out of or relating to this Contract or the breach (or alleged breach) thereof except for a controversy or claim in which injunctive relief is requested shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on any arbitration award may be entered in the court of competent jurisdiction set forth in subsection (b) of this paragraph. Such arbitration shall be held in the County of New York, State of New York before a single arbitrator, selected in accordance with the procedures prescribed by American Arbitration Association. Each party shall bear its own legal fees and expenses, and unless otherwise ordered by the arbitrator, each party shall pay 50% of the fees and expenses of the arbitrator.
This Agreement will be governed by the laws of the State of New York, without reference to conflict of laws principles that would result in the application of another jurisdiction’s law. Any dispute between the parties regarding an award by an arbitrator as set forth in this Section 19 of this Agreement or an application for injunctive relief with regard to violations of this Contract that may not be subject to resolution by monetary damages will be subject to the exclusive venue of the state and federal courts in New York County, New York. The parties hereby consent to the exclusive jurisdiction and venue of such courts.