LAST UPDATED: May 26, 2010
1. This Agreement is between you ("you") and Orbit Baby, Inc. ("Orbit Baby," "we," "us")concerning your use of the online sites currently located at http://www.orbitbaby.com and http://shoporbitbaby.com (each, together with any successor site(s), a "Site") and the Services (defined below) made available through the Sites. We provide users of the Sites with access to certain content and services related to Orbit Baby's products and services, which may include, without limitation, product registration functionality, FAQs, product manuals, information about the Orbit Baby limited warranty, technical resources, news, tools, text, photos, audio and video clips, and links to third party websites, and other similar content (such content and services, collectively, the "Services").
2. Acceptance of Terms. Each Site and the Services are made available by Orbit Baby subject to this Agreement. We reserve the right to update or make changes to this Agreement from time to time in our sole discretion, which changes we may provide to you by any reasonable means, including without limitation, by posting the revised version of this Agreement on the Site. You can determine when this Agreement was last revised by referring to the "LAST UPDATED" legend at the top of this Agreement. When using the Site and any Services, you agree that you are subject to any additional posted guidelines, rules, terms and conditions applicable to the Site and the Services, which are hereby incorporated by reference into this Agreement.
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Site and the Services, with or without notice; charge fees in connection with the use of the Site; modify and/or waive any fees charged in connection with the Site and the Services; and/or offer opportunities to some or all users of the Site and the Services. You agree that neither we nor any of our affiliatesshall be liable to you or to any third party for any modification, suspension or discontinuance of the Site, in whole or in part, or of any Service, content, feature or product offered through the Site. Your continued use of the Site and the Services after such changes will indicate your acceptance of such changes.
3. Jurisdictional Issues. The Site is controlled and operated by Orbit Baby from the United States, and is not intended to subject Orbit Baby to the laws or jurisdiction of any state, country or territory other than that of the United States. If you are accessing the Site outside of the United States, Orbit Baby does not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the Site, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including any United States embargoes or other federal rules and regulations restricting exports. We may limit the Site's availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
4. Orbit Baby's Proprietary Rights. The information and materials made available through the Site, including the Services, are and shall remain the property of Orbit Baby and its licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Orbit Baby to access and use the Site, at any given time you may view one (1) copy of any content on the Site to which we provide you access hereunder on any single computer solely for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices. Except as expressly authorized in advance by Orbit Baby in writing, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based (whether in whole or in part) on, all or any part of the Site or any materials made available through the Site.
Your use of certain other content and products made available through the Site may be subject to additional terms and conditions, as set forth in a separate written agreement between you and Orbit Baby ("Additional Terms"). In the event of any conflict between this Agreement and the Additional Terms, the Additional Terms will control.
All trademarks and service marks on the Site not owned by Orbit Baby are the property of their respective owners. The trade names, trademarks and service marks owned by Orbit Baby, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Orbit Baby's trade names, trademarks or service marks without our express prior written consent. Orbit Baby's trademarks include, without limitation, Orbit Baby, Orbit, the Orbit Design, SmartHub, StrongArm, and Paparazzi Shield.
6. Feedback; Testimonials. If you provide any comments or suggestions to Orbit Baby with respect to the Site, Services, or Orbit Baby products or services ("Feedback"), then, notwithstanding anything herein to the contrary, you hereby assign and agree to assign to Orbit Baby all right, title and interest in and to the Feedback, effective upon submission or provision to Orbit Baby thereof. You further agree not to assert any "moral" rights or other rights with respect to attribution of authorship or integrity of such Feedback that you may have under any applicable law and under any legal theory. Without limiting the foregoing, you agree that Orbit Baby may make available on the Site any testimonials, and other information, content, and/or materials in connection therewith, that you submit to Orbit Baby ("Testimonials"). As such, you hereby grant to Orbit Baby and its affiliates and their respective service providers and designees a worldwide, nonexclusive, transferable, sublicenseable (through multiple tiers), royalty-free, perpetual, irrevocable right and license, without compensation to you: to use, reproduce, distribute, adapt (including without limitation edit, modify, translate, and reformat), create derivative works of, transmit, publicly display and publicly perform such Testimonial, in any media now known or hereafter developed.
For each Testimonial, you represent and warrant that you have all rights necessary for you to grant the licenses granted in this Section, and that such Testimonial, and your provision thereof to and through the Site, comply with all applicable laws, rules and regulations. You further irrevocably agree not to assert any "moral rights" or other rights with respect to attribution of authorship or integrity of such Testimonials that you may have under any applicable law and under any legal theory. You acknowledge and agree that we reserve the right (but have no obligation) to do any or all of the following, at our discretion: (a) monitor and respond to Testimonials; (b) alter, remove, or refuse to post any Testimonial; and/or (c) disclose any Testimonials, and the circumstances surrounding their transmission, to any third party, in each of the foregoing cases, in order to operate the Site; to protect Orbit Baby and its affiliates, and each of their respective employees, officers, directors, shareholders, agents, representatives, licensors, suppliers and service providers (the "Orbit Baby Parties"), and the Site's users and visitors; to comply with legal obligations or governmental requests; to enforce this Agreement; or for any other reason or purpose.
7. Rules of Conduct. While using the Site, you will comply with all applicable laws, rules and regulations. In addition, we expect users of the Site to respect the rights and dignity of others. Your use of the Site is conditioned on your compliance with the rules of conduct set forth in this Section. If you fail to comply with such rules, we may terminate your access to the Site pursuant to this Agreement. You agree that you will not:
Additionally, you acknowledge and agree that you (and not Orbit Baby) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Site, and paying all charges related thereto.
9. Products and Specifications. All descriptions, images, references, features, content, specifications, products and prices of products and services described or depicted on this Site, are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. We make all reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on this Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from this Site. By placing an order, you represent that the products ordered will be used only in a lawful manner. Orbit Baby reserves the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all Transaction(s); and/or to refuse to provide any user with any product or service. Refunds and exchanges will be subject to Orbit Baby's refund and exchange policies then in effect. You agree to pay all charges that may be incurred by you or on your behalf through the Site, at the price(s) in effect when such charges are incurred, including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.
10. Accuracy of Information. We attempt to ensure that information on this Site is complete, accurate and current. Despite our efforts, however, the information on this Site may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currentness of any information on this Site. For example, products described on this Site may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on the Site (if any). We are not responsible for pricing, typographical, or other errors in any offer and reserve the right to cancel any orders arising from such errors. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
11. Registration; User Names and Passwords. You may be required to register with Orbit Baby in order to access certain Services or areas of the Site. With respect to any such registration, we may refuse to grant you, and you may not use, a user name (or e-mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that personally identifies you; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion.
Your user name and password are for your personal use only, and not for use by any other person. You are responsible for maintaining the confidentiality of any password you may use to access the Site, and agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to the Site, to any third party. You are fully responsible for all interaction with the Site that occurs in connection with your password or user name (including, without limitation, all Transactions). You agree to immediately notify Orbit Baby of any unauthorized use of your password or user name or any other breach of security related to your account or the Site, and to ensure that you "log off"/exit from your account with the Site (if applicable) at the end of each session. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.
12. Links. The Site may provide links to other web sites and online resources. Unless otherwise explicitly stated, because Orbit Baby has no control over such sites and resources, you acknowledge and agree the Orbit Baby Parties are not responsible for the availability of such external sites or resources, and neither endorse nor are responsible or liable for any content, advertising, products or other materials on or available through such sites or resources. Web sites other than the Orbit Baby Sites may provide links to the Site with or without our authorization. You acknowledge and agree that the Orbit Baby Parties do not endorse such sites, and are not and shall not be responsible or liable for any links from those sites to the Site, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.
YOU AGREE THAT YOUR USE OF THIRD PARTY WEB SITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
Orbit Baby shall have the right, at any time and in its sole discretion, to block links to the Site through technological or other means without prior notice.
14. Disclaimer of Warranties and Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE BY ORBIT BABY IN A LIMITED WARRANTY WITH RESPECT TO CERTAIN PRODUCTS (IF ANY), THE DISCLAIMERS OF WARRANTIES IN THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW: THE SITE, THE SERVICES, AND ANY GOODS OR SERVICES MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SITE ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND (WHETHER EXPRESS, IMPLIED OR STATUTORY), INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE, AND THE ORBIT BABY PARTIES DISCLAIM ALL SUCH WARRANTIES. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SITE, INCLUDING WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY SERVICES AVAILABLE THROUGH THE SITE.
THE ORBIT BABY PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, THE ORBIT BABY PARTIES WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY CONTENT POSTED ON THE SITE BY ORBIT BABY OR ANY THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE IS TO STOP USING THE SITE. THE MAXIMUM LIABILITY OF ORBIT BABY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL BE ONE HUNDRED DOLLARS ($100).
IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
While we try to maintain the integrity and security of the Site and the servers from which the Site is operated, we do not guarantee that the Site will be or remain secure, complete or correct, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any unauthorized third party alteration to the Site, contact us at firstname.lastname@example.org with a description of the material(s) at issue and the URL or location on the Site where such material(s) appear.
15. Indemnity. Except to the extent prohibited by applicable law, you agree to defend, indemnify and hold harmless the Orbit Baby Parties from and against all claims, losses, costs and expenses (including attorneys fees) arising out of (a) your use of, or activities in connection with, the Site (including all Transactions); or (b) any violation of this Agreement by you.
16. Termination. This Agreement is effective until terminated. Orbit Baby, in its sole discretion, may terminate your access to or use of the Site, at any time and for any reason, including if Orbit Baby believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination, your right to use the Site will immediately cease. You agree that any termination of your access to or use of the Site may be effected without prior notice, and that Orbit Baby may immediately deactivate or delete your password and user name, and all related information and files associated with it, and/or bar any further access to such information or files. You agree that Orbit Baby and its affiliates shall not be liable to you or any third party for any termination of your access to the Site or to any such information or files, and shall not be required to make such information or files available to you after any such termination. Sections 2 through 10, Section 12 and Sections 14 through 22 shall survive any expiration or termination of this Agreement.
17. Governing Law; Jurisdiction. Governing Law; Arbitration. This Agreement is governed by and shall be construed in accordance with the laws of the State of California, U.S.A., without regard to its principles of conflicts of law. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. All disputes arising under or relating to these Terms shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes ("Supplementary Procedures"), as amended by the terms and conditions of these Terms. The Supplementary Procedures are available online at http://www.adr.org/sp.asp?id=22014. To the extent that the arbitrator deems reasonable, the arbitrator shall conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances. Any in-person appearances requested by the arbitrator shall be held in Santa Clara County, California. The arbitrator's decision shall be based upon the substantive laws of the State of California without regard to its principles of conflicts of law. Arbitration proceedings shall be conducted in English and shall be conducted in a manner that preserves confidentiality. The arbitrator's decision shall be final and binding. The award rendered by the arbitrator(s) may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing herein shall preclude Orbit Baby from seeking any injunctive relief or other provisional remedy in U.S. state or federal courts for protection of its intellectual property rights (including the rights of its licensors), and you agree to exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
18. Contact Us. If you have any questions regarding the meaning of application of this Agreement, please direct such questions to email@example.com. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.
19. Filtering. Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the two web sites GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Please note that Orbit Baby does not endorse any of the products or services listed at such site.
20. Notice for California Residents. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an e-mail to firstname.lastname@example.org. You may also contact us by writing to 8445 Central Avenue, Newark, CA 94560, or by calling us at 1-877-ORB-BABY (1-877-672-2229). California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
21. Ability to Enter Into This Agreement. By using the Site, you affirm that you are of legal age to enter into this Agreement or, if you are not, that you have obtained parental or guardian consent to enter into this Agreement.
22. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Orbit Baby. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This, together with all policies referred to herein, is the entire Agreement between you and Orbit Baby relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Orbit Baby relating to such subject matter. Notices to you may be made via posting to the Site, by e-mail, or by regular mail, in Orbit Baby's discretion. The Site may also provide notices of changes to this Agreement or other matters by displaying such notices or by providing links to such notices. Without limitation, you agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Orbit Baby will not be responsible for failures to fulfill any obligations due to causes beyond its control.
Site © 2006-2010 Orbit Baby, Inc., unless otherwise noted. All rights reserved.