EFFECTIVE: March 11, 2018
1. CONTRACTUAL RELATIONSHIP
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT. IN THESE TERMS, THE WORDS "INCLUDING" AND "INCLUDE" MEAN "INCLUDING, BUT NOT LIMITED TO."
Certain features of the Services or Site, including certain programs and products provided through the Site, may be subject to additional guidelines, terms, or rules, which will be posted on the Services or Site in connection with such features, Services, programs, and products. All such additional terms, guidelines, and rules are hereby incorporated by reference into this Agreement.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate disclosures. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
BAAAM DELIVERY may amend the Terms from time to time. Amendments will be effective upon BAAAM DELIVERY's posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If BAAAM DELIVERY changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing BAAAM DELIVERY written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided by mail or hand delivery to our registered agent for service of process. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).
2. DISPUTE RESOLUTION
This Agreement shall be governed by the laws of the State of Nevada, United States of America, without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. Any action or proceeding relating to a claim or controversy at law or equity that arises out of or relates to this and falls outside of the below stated Arbitration Terms must be brought in a federal or state court located in Clark County and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, unless such Claim is submitted to arbitration as set forth in Section 11.2(c).
If a dispute arises between you and BAAAM DELIVERY, our goal is to learn about and address your concerns. You agree that, before instituting any arbitration, you will notify us about any dispute you have with BAAAM DELIVERY regarding our Services by contacting BAAAM DELIVERY. If you and BAAAM DELIVERY are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to binding arbitration.
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against BAAAM DELIVERY on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against BAAAM DELIVERY, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against BAAAM DELIVERY by someone else.
You and BAAAM DELIVERY agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and BAAAM DELIVERY, and not in a court of law.
You acknowledge and agree that you and BAAAM DELIVERY are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and BAAAM DELIVERY otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and BAAAM DELIVERY each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Nevada.
Unless you and BAAAM DELIVERY otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $5,000.00, then the arbitration will be conducted solely on the basis of documents you and BAAAM DELIVERY submit to the Arbitrator, unless you request a hearing, or the Arbitrator determines that a hearing is necessary. If your claim exceeds $5,000.00, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $2,500.00, BAAAM DELIVERY will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
3. THE SERVICES
The Services comprise mobile applications and related services (each, an "Application"), which enable users to arrange and schedule caregivers, and including with third party providers of such services ("Third Party Providers"). YOU ACKNOWLEDGE THAT YOUR ABILITY TO ARRANGE AND SCHEDULE CAREGIVERS THROUGH THE THIRD-PARTY PROVIDERS DOES NOT ESTABLISH BAAAM DELIVERY AS A PROVIDER OF THESE CAREGIVERS.
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to BAAAM DELIVERY certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by BAAAM DELIVERY. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by BAAAM DELIVERY in writing, you may only possess one Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third-Party Provider or any other party. In certain instances, you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification.
You agree that BAAAM DELIVERY may contact you by telephone or text messages at any of the phone numbers provided by you or on your behalf in connection with a BAAAM DELIVERY account, including for marketing purposes. You also understand that you may opt out of receiving text messages from BAAAM DELIVERY at any time, either by contacting BAAAM DELIVERY.
BAAAM DELIVERY may, permit you from time to time to submit, upload, publish or otherwise make available to BAAAM DELIVERY through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to BAAAM DELIVERY you grant BAAAM DELIVERY a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and BAAAM DELIVERY's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by BAAAM DELIVERY in its sole discretion, whether or not such material may be protected by law. BAAAM DELIVERY may, but shall not be obligated to, review, monitor, or remove User Content, at BAAAM DELIVERY's sole discretion and at any time and for any reason, without notice to you.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. BAAAM DELIVERY does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). BAAAM DELIVERY will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges or processing fees for split payments.
All Charges and payments will be enabled by BAAAM DELIVERY using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that BAAAM DELIVERY may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by BAAAM DELIVERY.
In certain cases, with respect to Third Party Providers, Charges you incur will be owed directly to Third Party Providers, and BAAAM DELIVERY will collect payment of those charges from you, on the Third Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services, and Charges you incur will be owed to the Third Party Provider. BAAAM DELIVERY will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to BAAAM DELIVERY or its affiliates, where BAAAM DELIVERY is solely liable for any obligations to Third Party Providers.
5. Disclaimers; Limitation of Liability; Indemnity.
User is responsible for inspecting all Products received from Entity which food was purchased for any damage or other issues upon delivery. In addition, User is solely responsible for determining the freshness of the Products received. User should always inspect the delivery to confirm that the meal ingredients arrive in an appropriate condition. If a product arrives and the User has issues or concerns with the quality, or with the seals broken or does not meet the U.S. Department of Agriculture’s (“USDA”) requirements for packaged foods, please contact Entity which food was purchased immediately. BAAAM DELIVERY assumes no responsibility for illnesses or sicknesses brought on by the consumption of products, or products that are not in an appropriate condition based on the USDA requirements for packaged foods. User is requested to immediately contact the Establishment which the food was purchased from upon the discovering of the broken seals on the packaging or any products not in appropriate condition upon delivery and the User should not consume these products at the request of the Entity which food was purchased, and the User assumes all responsibility for any illnesses, diseases, or sickness which may arise from the consumption of these products. Company recommends that User use a thermometer to ensure that the temperature zone within the container in which any meat, poultry or seafood Product is located is 40° F or below. In the unlikely event that such temperature zone is above 40°, or if User has any other reason to believe that any other Product in your delivery is not suitable for consumption, contact Entity which food was purchased and discard the item. To maintain the quality and integrity of the Products, Company recommend that User immediately refrigerate all perishable Products upon delivery and follow the USDA instructions on refrigeration and food safety. Company recommend that User follow the USDA’s instructions on safe food handling. Company also recommend that all cooking instructions be followed and that User use a food thermometer to ensure that all meat, poultry, seafood and other applicable items are cooked to the USDA’s recommended internal temperatures. Failure to follow safe food handling practices and temperature recommendations may increase the risk of food-borne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups. COMPANY IS NOT RESPONSIBLE FOR ANY ILLNESSES, DISEASES, OR SICKNESSES, WHICH ARE THE RESULT OF IMPROPER STORAGE, IMPROPER COOKING TECHNIQUES, OR UNSAFE FOOD HANDLING PRACTICES.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." BAAAM DELIVERY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BAAAM DELIVERY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BAAAM DELIVERY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
BAAAM DELIVERY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF BAAAM DELIVERY, EVEN IF BAAAM DELIVERY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BAAAM DELIVERY SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF BAAAM DELIVERY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BAAAM DELIVERY SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BAAAM DELIVERY'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING TRANSPORTATION SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER RIDE-SHARING OR PEER-TO-PEER TRANSPORTATION SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED.
THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT BAAAM DELIVERY HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, BAAAM DELIVERY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON BAAAM DELIVERY’S CHOICE OF LAW PROVISION SET FORTH BELOW.
You agree to indemnify and hold BAAAM DELIVERY and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) BAAAM DELIVERY's use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.
6. OTHER PROVISIONS
You may not assign these Terms without BAAAM DELIVERY's prior written approval. BAAAM DELIVERY may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of BAAAM DELIVERY's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, BAAAM DELIVERY or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. BAAAM DELIVERY's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BAAAM DELIVERY in writing. This provision shall not affect the Sever-ability and Survivability section of the Arbitration Agreement of these Terms.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word "including" means "including without limitation." If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without BAAAM DELIVERY’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. BAAAM DELIVERY may freely assign, subcontract, and delegate its rights and obligations under this Agreement. The terms of this Agreement shall be binding upon assignees.
The provisions of this Agreement are intended solely for the benefit of you and BAAAM DELIVERY and its suppliers and shall create no rights or obligations enforceable by any third party unless such beneficiaries are expressly set forth herein.
BAAAM DELIVERY reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that BAAAM DELIVERY will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
You will comply with the terms of this Agreement, our policies and all applicable laws and regulations. You will be solely responsible for the use of the Site and Services. You will adopt and maintain reasonable and appropriate security precautions for your Account to prevent its disclosure or use by unauthorized persons.
You acknowledge that all of the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and Services are owned by BAAAM DELIVERY or BAAAM DELIVERY's suppliers. The provision of the Site, Services, and/or Software, does not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. BAAAM DELIVERY and its suppliers reserve all rights not granted in this Agreement. If you provide BAAAM DELIVERY any feedback or suggestions regarding the Site, Services, and/or Software, or any element or component thereof ("Feedback"), you hereby irrevocably and unconditionally assign to BAAAM DELIVERY all worldwide right, title, and interest in the Feedback and agree that BAAAM DELIVERY shall have the right to use such Feedback and related information in any manner it deems appropriate without any further obligation to you. You agree that Feedback is BAAAM DELIVERY's confidential information.
If any portion of this Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; and (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Agreement.