TERMS OF SERVICE
References to the “Maby Application” mean any mobile, web, or software application related to the Services designed, developed, and/or made available by us and available through the iTunes and Google Play stores as well as other third-party services.
References to the “Booking Services” mean those appointment-scheduling services made available by us through the Maby Application.
References to the “Maby Site” mean the Web site bearing the URL http://maby.us and all affiliated websites owned and operated by Maby, our subsidiaries, and related companies.
References to the “Commercial Content” mean content which advertises or promotes a commercial product or service.
References to a “Customer” mean any person or entity who uses the Maby Application Maby Site, or a Third-Party Platform as defined in Section 3.7 to schedule an appointment, manage appointments, browse beauty- and nail-related content and services, and/or pay for services rendered, whether said individual registers directly for the use of the Maby Application or is added by an Maby through whom Customer obtains services.
References to the “Services” mean, collectively, any and all services offered by us, including but not limited to (1) the Maby Site, (2) the Maby Applications, (3) the Payment Services, and (4) any other services or features made available by Maby through the Maby Site, Payment Services (as set forth in Section 4.5 hereof,) or Maby Application.
References to a “Maby” mean a salon, store or business and seller of goods, services, or products who use the Services to allow Customers to book, manage, view, and cancel appointments.
References to “Dispute” mean any claim, conflict, controversy, or disagreement between the Parties arising out of, or related in any way to, these Terms (or any Terms, supplement or amendment contemplated by these Terms,) including, without limitation, any action in tort, contract, or otherwise, at equity or at law, or any alleged breach, including, without limitation, any matter with respect to the meaning, effect, validity, performance, termination, interpretation, or enforcement of these Terms or any terms contemplated by the Terms.
References to “Material Breach” mean any breach of these Terms upon the occurrence of which a reasonable person in the position of the non-breaching party would wish to immediately terminate these Terms because of that breach.
References to “you,” and/or “User” mean the User of the Services, whether as a Maby or Customer.
References to “us,” “we,” “our,” and/or “Maby,” refer to Maby, LLC., a company with its principal operating office in Texas and all its designated agents, employees, and subsidiaries within the United States of America for those customers based and/or residing in Australia and Viet Nam. For the avoidance of doubt, the entity to which you provide implied consent through your use of the Services depends on your place of residence and location of use of such Services.
1.2 Agreement to be Bound.
I – Definitions, Agreement to be Bound.
II – General Provisions.
2.1. About Us; NOTICE FOR YOU: Maby not Vendor; No Endorsement.
At its core, Maby acts as a software as a service to allow its Users to book, manage, view, and cancel appointments. In addition, the Maby platform and all related Maby applications allow Users to browse, view, and review content and potential service providers for nail and beauty related services. Maby does NOT have control over:
(1) the quality, safety, morality or legality of any aspect of any Services offered by Maby using our Services,
(2) the truth or accuracy of the listings or directory information provided to us by Maby,
(3) the timeliness or accuracy of any Maby appointment calendar,
(4) the ability of Maby to provide Services booked,
(5) the identity of any Maby or Customer, or
(6) the ability of Customers to pay for Services. We do not and cannot ensure that a Maby or Customer will actually complete a transaction. If you rely on any of the information provided by or on the Services, you do so solely at your own risk.
You acknowledge and agree that we do not sell or purchase, offer to sell or purchase, invite to sell or purchase, or make or solicit any offers. In all instances, any solicitation, invitation, offer, advertisement or communication is void where prohibited by law.
NOTE: IN ALL INSTANCES EXCEPT WHERE NOTED, ALL SALES AND SERVICES ARE ADVERTISED, SOLICITED, OFFERED, ACCEPTED, MADE, AND DELIVERED BY MABY WITH WHOM A CUSTOMER DIRECTLY CONTRACTS. AT NO TIME WILL A CUSTOMER/MERCHANT RELATIONSHIP EXIST BETWEEN US EXCEPT AS EXPLICITLY NOTED.
2.2 Errors in the Services.
If you encounter any error in the service, let us know at [email protected]. We do not warrant that any errors in the Services will be corrected.
2.3 Accuracy, Completeness, and Timeliness of Information.
We are not responsible if information made available on the Services is not accurate, complete, or current, including but not limited to the corporate information of a Maby, calendar availability, and bookings made.
Maby may update or revise this Agreement (including any Maby Policies) from time to time at its sole discretion and without limitation upon notice of the same via posting to the Services and/or the emailing of a notice to our registered Users. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account or Maby Account (as defined below). Except as otherwise expressly stated by Maby, any use of the Services (e.g., the use of the Booking Services or the Payment Services) is subject to the version of this Agreement in effect at the time of use.
2.5 Modifications and Changes to the Services.
We may modify, add to, suspend, or delete any aspect of the Services, in whole or in part, at our sole discretion at any time, with such modifications, additions, or deletions being immediately effective. Such modifications, additions, or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use. If you do not agree to such modifications to the Services, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account or Maby Account (as defined below). Except as otherwise expressly stated by Maby, any use of the Services (e.g., the use of the Booking Services or the Payment Services) is subject to the version of this Agreement in effect at the time of use.
2.6 Access to Website or the Services.
Though we try to make the Services available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time for maintenance, we do not warrant that the Services will be at all times available. Use of the Services requires Internet access through your computer, mobile device, tablet or other internet-accessible device as allowed by Maby. You are responsible for all mobile carrier charges resulting from your use of the Services.
2.7 Right of Refusal, Limitation, Discontinuation, and Termination.
We reserve the right to refuse to provide access to the Services for any reason at any time in our sole and exclusive discretion. We may, in our sole and exclusive discretion, limit or cancel an Account or a Maby Account (as defined below) for any reason whatsoever. In the event that we make a change to or cancel an Account or a Maby Account (as defined below,) we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time your Account or Maby Account (as defined below) was created; however, the failure to do so shall not result in any liability, including liability for lost data deleted as a result of the Account or Maby Account (as defined below) termination.
2.8 Prohibited Uses of the Services.
In addition to the other restrictions on use set forth herein, you agree and acknowledge that you shall not use the Services:
(a) for any unlawful purpose;
(b) to solicit Users to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose(s) of the Services;
(c) to violate any international or governmental regulations, rules, laws, or local ordinances;
(d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others;
(e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
(f) to submit false or misleading information;
(g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services;
(h) to collect or track the personal information of others;
(i) to spam, phish, pharm, pretext, spider, crawl, or scrape;
(j) for any obscene or immoral purpose;
(k) to interfere with or circumvent the security features of the Services;
(l) take any action that imposes or may impose (in Maby’s sole determination) an unreasonable or disproportionately large load on the Services or Maby’s infrastructure;
(m) rent, lease, copy, provide access to or sublicense any portion of the Services or Maby Materials (as defined below) to a third party;
(n) use any portion of the Services or Maby Materials (as defined below) to provide, or incorporate any portion of the Services or Maby Materials (as defined below) into, any product or service provided to a third party;
(o) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non- public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Maby);
(p) modify any Services or Maby Materials (as defined below) or create any derivative product from any of the foregoing;
(q) remove or obscure any proprietary or other notices contained in the Services or Maby Materials (as defined below); or
(r) publicly disseminate information regarding the performance of the Services or Maby Materials (as defined below) or access or use the Services or Maby
Materials (as defined below) for competitive analysis or benchmarking purposes. We reserve the right to terminate your use of the Services for violating any of the prohibited uses or for any other reason in our sole and exclusive decision.
2.9 Communications Systems and Authorization to Contact You; Pop-out Information; Recording Calls; Analyzing Your Messages and other Content.
Maby may contact you using autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) infrequently poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this Agreement, our policies, applicable law, or any other agreement we may have with you. Maby may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), to which you agree by providing your mobile phone number (as specified above). Maby may collect other telephone numbers for you and may place manual non-marketing calls to any of those numbers and autodialed non-marketing calls to any landline. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits.
Maby works with the following carrier partners: List of our carrier partners:
Should you have any questions about your text plan or data plan, please contact your wireless provider.
If you do not wish to receive communications as specified above, you may change your communications preference (including withdrawal of your consent to obtain said communications) at any time, including through the communications preferences section of your account.
If you are experiencing issues with the messaging program you can get help directly at [email protected].
Maby may, without further notice or warning and in its sole discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Maby or its agents for quality control and training purposes, or for its own protection. Maby automated systems scan and analyze the contents of every message sent through its messages platform, including messages between users, to detect and prevent fraudulent activity or violations of Maby’s User Agreement, including the incorporated terms, notices, rules, and policies. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. Maby may store message contents, including to conduct this scanning and analysis.
2.10 Privacy of Others; Marketing.
If Maby provides you with information about another User, you agree that you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, or distribute a User’s information to a third party for purposes unrelated to the Services. Additionally, you may not use User information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific User to do so.
2.11 Government End Users.
The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, the Code of Federal Regulations relating to the use of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any Maby Application with only those rights set forth therein. If you are a
Government End User, please consult first with your relevant legal department prior to use to confirm your use is compliant with the standards and policies under the Code of Federal Regulations.
2.12 Fraudulent Actions of Users.
Maby is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by any User that are deceptive, fraudulent, or otherwise invalid (“Fraudulent Actions”). By using the Services, you hereby release Maby from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify us of any Fraudulent Actions which may affect the Services. Maby reserves the right, in its sole discretion, to terminate the account of any User that engages in, or enables any other User to engage in, Fraudulent Actions.
2.13 Export Control
You may not use, export, or re-export any Maby Application or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that 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 that you are not listed on any U.S. Government list of prohibited or restricted parties.
III – Customer Accounts.
- 3.1 Online Accounts.
- 3.2 Transfer Prohibited.
- You agree that you shall not sell, trade, or transfer your Account to any other person or entity.
- 3.3 Account Guidelines.
- The Services may contain the ability to communicate with other Users on one or more profiles, booking forms, platforms, comments sections, discussion forums, Web sites, landing pages, social media outlets, sales channels, and/or other interactive features, (hereinafter “Interactive Areas,”) in which Users and third parties may communicate. By participating in Interactive Areas, you agree and acknowledge that you:
- Shall not upload, distribute, or otherwise publish to the Services any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal material; and
- Shall not threaten or verbally abuse other Users, use defamatory language, or deliberately disrupt discussions with repetitive messages, meaningless messages or “spam”; and
- Shall not to use language that abuses or discriminates on the basis of race, religion, nationality, gender, sexual preference, age, region, disability, etc. Hate speech of any kind is grounds for immediate and permanent suspension of use of the Services; and
- Shall not use the Interactive Areas to distribute or otherwise publish any material containing any solicitation of funds, advertising or solicitation for goods or services except for the sale of goods or services in the scope envisioned by the express purpose of the Services; and
- Shall not upload, post or otherwise transmit any content that violates any law or engage in activity that would constitute a criminal offense or give rise to civil liability; and
- Shall not post unauthorized commercial communications (such as spam); and
- Shall not upload, post, or otherwise transmit any content that advocates or provides instruction on illegal activity or discuss illegal activities with the intent to commit them; and
- Shall not upload, post, or otherwise transmit content that does not generally pertain to the designated topic or theme of any Interactive Area; and
- Shall not impersonate any person or entity, including, but not limited to, any of our employees, or falsely state or otherwise
- Shall not interfere with any other User’s right to privacy, including by harvesting or collecting personally-identifiable information about other Users of our Interactive Areas or posting private information about a third party; and
- Shall not engage in unlawful multi-level marketing, such as a pyramid scheme; and
- Shall not upload, post or otherwise transmit any content, software or other materials which contain a virus or other harmful or disruptive component; and
- Shall not interfere with or disrupt the Services or the Interactive Areas or the servers or networks connected to the same, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services and/or the Interactive Areas; and
- Users agree and acknowledge that any profile they create may be edited, removed, modified, published, transmitted, and displayed by us, and they waive any rights they may have in having the material altered or changed in a manner not agreeable to them.
- 3.4 Rights in Submissions.
- Should you submit, display, publish or otherwise post any content to an Interactive Area, (hereinafter “Submissions,”) you agree to grant to us and our partners and affiliates a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such Submissions in any and all media now known or hereinafter developed for hosting, indexing, caching, distributing, tagging, marketing, and for all other lawful purposes without the requirement to make payment to or seek permission from you or to any third party.
- You represent and warrant that you own or have a valid license to use any and all Submissions and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any Submissions does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.
- 3.5 Right to Monitor.
- We shall have the right to monitor your Account in our sole and exclusive discretion.
- 3.6 Verification of Users.
- Users wishing to participate in the Services may be asked to provide a valid mobile phone number through the Maby Application and verify such number as instructed by us. To verify your mobile phone number, we will send you a code via text message to the mobile phone number you provided, and you must enter that code as instructed in the Maby Application. If you change your mobile phone number, you must promptly provide and verify your new
- mobile phone number. When you provide your mobile phone number, you expressly consent to receive direct dial calls, autodialed and prerecorded message calls, and text messages at that number. Users wishing to participate in the Services may also be required to verify their identities, especially in the case of Payment Services. This may include but is not limited to providing proof of identity (such as via a passport or other photo-bearing piece of identification) and residence (such as via a current utility bill.) Maby does not bear any responsibility and cannot be held liable for the verification or non-verification of a User’s identity.
- 3.7 Use of the Booking Services via Third-Party Platforms.
- 3.8 Account Settings.
- You may establish certain default settings for your use of the Payment Services through the Maby Application, such as your preferred payment card account. You may change these settings through the Maby Application.
IV – Terms of Sale for Booking Services, Payment Services.
4.1 Appointment Booking.
Maby provides the Booking Services to Users for the purpose of assisting Customers in discovering and booking appointments with variety of participating Maby and of assisting Maby in more efficiently managing their calendars and increasing their customer base. In response to a Customer’s online request for a Maby appointment through the Maby Site or Maby Application, Maby directly contacts the Maby computerized database of appointments. The availability of appointments is determined at the time of User’s query and is provided by the Maby. Users understand and agree that Maby does not independently verify the availability of any Maby and cannot be held liable for errors in a Maby calendar, such as booking on same time for over two services or group-booking or bookings that are not honoured by the Maby. Once an appointment is made by a Customer through the Maby Site or Maby Application, Maby will provide confirmation of the appointment to both the Customer and Maby by email or notifications to the email address or your device provided by said User upon registration. By using the Booking Services, Users agree to receive appointment confirmations and reminders by email, SMS, push notifications, and/or any chatbot-related or technology with which Maby may engage. Maby shall not be held liable in the event an appointment confirmation or reminder is not sent to or received by a User.
4.2 Appointment No-Show & Cancellation Policy.
Be advised: you may be charged a cancellation fee indicated during the booking process or lose the amount blocked or paid, if you arrange a Booking Service, but cancel late or no-show, thus committing a breach of a stated cancellation policy of the Maby. In case it is not otherwise specified, the refund of any amount blocked or pre-paid rests solely with the Maby.
Customers who cancel or fail to show up for multiple bookings may have their Accounts terminated, at the sole discretion of Maby, in the event that such account activity is detrimental to orderly Booking Services with Maby and members of the Maby community.
4.3 Usage Guidelines.
User agrees to use the Booking Services only to book appointments at Maby and then honor those appointments by arriving at Maby on time and paying for the services booked and provided. Resale or attempted resale of appointments is prohibited and is grounds for, among other things, cancellation of your appointments or termination of your access to the Services.
4.4 Maby Payment Services, Generally.
Maby may offer third-party payment services (the “Payment Services”) in order to allow Customers to pay bills at participating Maby through the Maby Application. Specifically, Maby collects and processes payments on behalf of Maby through Adyen N.V., a recognized professional payment gateway provider. In order to use the Payment Services at a participating Maby, Customers must: (1) install the Maby Application on a compatible mobile device; (2) make a reservation for the Maby through the Booking Services; (3) provide valid payment information through the Maby Application as further described below; and (4) have an Account in good standing. There is no fee from Maby to Customer to use the Payment Services; however, Customer’s mobile carrier’s standard text message and data charges may apply; you are responsible for any fees charged by your mobile carrier in connection with your use of the Payment Services and Maby Application.
4.5 Sale Prices.
The prices and the terms of payment for Maby services are displayed at the time of booking via the Maby Application; however, Maby may modify or change these fees at any time, in their sole discretion. The Maby Site and Maby Application support both included and excluded tax systems. In the former, the prices presented are the final prices including all sales taxes, and, in the latter, such taxes will be added to the final price after the service is rendered. The decision as to which system should be used is up to the Maby.
4.6 Payment Card Information.
To confirm that the payment card information you have provided is accurate, we may place a temporary $1.00 authorization hold on your debit or credit card at the time you provide your payment card information through the Maby Application. After we verify that your payment card information is accurate, usually within a few days, the $1.00 hold will be removed. In no event will your payment card actually be charged for this $1.00 authorization.
By providing debit or credit card account information through the Maby Application, you represent, warrant, and covenant that: (1) you are legally authorized to provide such information to us; (2) you are legally authorized to perform payments from the debit or credit card account(s); and (3) such action does not violate the terms and conditions applicable to your use of such debit or credit card account(s) or applicable law. When you authorize a payment using a debit or credit card account via the Maby Application, you represent, warrant, and covenant that there are sufficient funds or credit available to complete a payment using the debit or credit card account. By using Booking Services, you acknowledge and accept the binding agreement to bear full financial responsibility for all Booking Services that you schedule using Maby or information contained on Maby.
4.7 Payment Authorization and Settlement.
When you indicate through the Maby Application that you intend to pay your bill using the Payment Services, you authorize Maby or the payment service provider to charge your debit or credit card for the full amount of the services to be rendered and any cancellation fees that you may incur at any time prior to or after the appointment time and date. You are responsible for timely payment of all amounts owed by you to Maby and Maby.
4.8 Receipts and Transaction History.
All the receipts for the transactions connected with the Payment Services are visible in your Account in the Maby Application and/or Maby Site. If you would like an emailed version or a paper receipt, you must request one from the Maby at the time of the transaction or service.
4.9 Incomplete Payments.
Maby is not liable for any payments that the Payment Services do not complete because: (1) your debit or credit card account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of the debit or credit card account; (2) you have not provided us with correct payment account information; (3) your debit or credit card has expired; or (4) circumstances beyond our control (such as, but not limited to, power outages, interruptions of cellular service, or any other interference from an outside force) prevent the execution of the transaction. To the extent that any amounts owed cannot be collected from your debit, or credit card account through the Payment Services, you are solely responsible for paying the applicable Maby by other means, such as cash, as required for the full value of the services scheduled and/or delivered.
V – Gift Card Service.
(a). Maby(s) may provide Customers with the possibility of using electronic vouchers, entitling their Customers or persons indicated by them to use the Maby’s Service on terms specified in advance by him, with electronically assigned information on the value of the voucher (“Gift Card”). In particular, the Gift Card may be in the form of an e-mail or PDF (or other) document.
(b). The Gift Card is offered by Maby(s) in the System through dedicated functionality. Before issuing a Gift Card, it must be paid for by the Customer. The Customer prepares the Gift Card by an external electronic payment provider. Maby does not process any information, including personal data, regarding payments made in connection with the payment of the Gift Card.
(c). Maby(s) are solely responsible for the sale, transfer and implementation of the Gift Card and for the proper performance of the Service covered by the Gift Card.
(d). The payment operator’s commission for making a payment to purchase a Gift Card does not charge the Customer.
(e). The rules on which the Gift Card is made available and implemented are specified by the Maby in the content of the offer or regulations made available by him in the System. In particular, the Maby may specify:
What Service, scope or type of Maby Services the Gift Card applies to;
Value of the Gift Card expressed in currency;
discount (e.g. Gift Card costs $100, but authorizes to use the Service worth $110);
The validity period of the Gift Card, i.e. the period for which the Gift Card can be used;
whether the Gift Card is personal or bearer’s;
if the Service is used for a price lower than the value of the Gift Card, the remaining amount is forfeited or remains to be used;
Is it possible to use a Maby Service with a price higher than the value of the Gift Card or the amount remaining to be used by paying an additional payment;
Rules and dates for returning a Gift Card;
If the Gift Card may be blocked if it is lost;
Additional elements, e.g. priority in booking dates or the possibility or not being able to take advantage of certain promotions.
(f). The rules set by the Maby on which the Gift Card is made available and implemented shall not exclude or limit:
Universally binding provisions, including provisions protecting consumers;
Chargeback refund rules set out in relevant regulations of banks or payment card/ credit card operators/ providers.
(g). The Gift Card cannot be exchanged for cash without the consent of the Maby.
6.1 Unauthorized Business.
In addition to the forgoing prohibited uses, our Maby Application and the Maby Site may not be used by a Maby to cause us to sell on his, her, or its behalf any of the following products or services, (hereinafter “Unauthorized Business:”) (1) any illegal activity or goods; (2) drugs and tools intended for the production of drugs; (3) pharmacies or pharmacy referral services; (4) betting, including lottery tickets, sports related gambling, casinos; (5) insurance or other financial merchandise or services; (6) money transfer; (7) independent financial adviser services or securities; (8) pyramid selling or multi-level marketing; (9) counterfeit goods and goods infringing on third party intellectual property rights; (10) adult entertainment oriented products or services; (11) escort or sexual services; (12) sales of firearms, ammunition, or weapons and other devices designed to cause physical injury; (13) internet/mail order/telephone order of age-restricted products (e.g., tobacco, alcohol); (14) hate or harmful products or other products or services invoking or supporting discrimination, violence or terrorism; (15) any other sales of products or services in highly-regulated industries; and (16) illegal software or illegal downloads such as music, films, or games. Violations of this requirement may result in account termination.
6.2 Maby Accounts, Generally.
When registering an Maby Account, you represent that you are authorized to act on behalf of the Maby and must provide true, accurate, current, and complete data about the Maby being registered. Such data may include KYC (i.e. Know Your Client) data, as requested by our payment gateway provider. Be advised that our payment gateway provider may rejected any Maby if it fails the provider’s internal due diligence procedures.
For more information, see the terms and conditions of our processor, available at https://maby.us.
You also agree to promptly update your Maby account to keep it accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Maby Account and the information in your Maby Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Maby Account, whether or not authorized by you. You agree to immediately notify Maby of any unauthorized use of your Maby Account or any other breach of security related to your use of the Services.
6.3 Registration, Service Fees.
Registration of a Maby Account may or may not be free of charge, depending on the region of the Maby’s business activity or type of services provided, thus, you may have to pay a fee to register your Maby Account (“Registration Fee”). The exact amount of Registration Fee will depend on type and location of your Maby. Maby reserves the right to change, from time to time and in its full discretion, the locations or types of Maby which benefit from the reduced or waived Registration Fee.
Registration Fees shall be transferred via acceptable payment methods as set forth by us at the time of registration or as otherwise communicated to the Maby. In addition to the Registration Fee, you agree that a specified fee will be periodically, monthly or semi-annually, depending on your arrangement with Maby, transferred from said acceptable payment method account for placing your offers via Services and maintaining the Maby account (“Maby Subscription Fee”). The first Maby Subscription Fee will be transferred at the moment of registration along with the Registration Fee, if applicable. Maby reserves the right to waive or reduce your Maby Subscription Fee for a certain period in its sole discretion, such as in the event of a free trial period. After such period, you will be presented with an offer of a certain Maby Subscription Fee and a pertinent amount will be transferred from your account if you agree to its conditions. Maby reserves the right to block or delete the accounts of Maby which do not transfer required fees.
6.4 Relation of Account on Third-Party Platform.
6.5 Cancellation of a Maby Account.
You can cancel your Maby Account by sending us an email on [email protected] or contacting Maby through the in-app chat. However, Maby will not refund you for the
Please be advised that cancellation of a Maby Account with Maby may not cancel or cause to be deleted a Maby account on a Third-Party Platform. To cancel or request to be deleted such accounts, Maby should contact such Third-Party Platform directly.
6.6 Compliance with all Terms of Sale.
All sales and accepted bookings shall be binding. Maby agrees and acknowledges that he, she, or it, and not us, shall be solely responsible for delivery of any and all purchased services to Customers and that a contract for sale arises at the point where a Customer utilizes the Booking Services to book a service. Every sale shall be subject to the laws applicable, but there shall not be implied any right that is not a legal right and that is not set down in these Terms.
6.7 Maby Warranties; Restrictions.
In addition to the Unauthorized Business and prohibited use of the Services set forth in these Terms, Maby warrants that any and all services (a) are not: illegal, obscene, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to any third party; (b) have not been identified by the U.S. Consumer Products Safety Commission and any other regulations set forth by the countries of Maby and Customer as hazardous to consumers and, therefore, are not services subject to a recall; (c) are not counterfeit; (d) do not offend against the law of any country whose citizens might purchase or receive the services; and (e) do not violate the rules and regulations promulgated by the U.S. Food and Drug Administration (“FDA”). Maby warrants further that he, she, or it owns all copyrights, trademarks and other intellectual property related to any Maby Account information provided to us or that Maby has the permission of the intellectual property rights holder (a) to place the Product(s) into the stream of commerce; (b) to receive the net proceeds of such sales as arise; and (c) to defend the intellectual property in the Product(s). Finally, Maby warrants and represents that he, she, or it has all licenses and authorizations required for performance of these Terms. Upon our request, Maby shall provide us with sufficient documentary evidence of such authorization or waiver. We are not obliged to require such documentary evidence, and the fact that we have not requested such documentary evidence shall not be deemed in any way as a statement as to whether or not such authorization or waiver is required.
Furthermore, it is illegal to use drug paraphernalia slang when referring to Products available for sale via the Web site.
Any and all governmental employees, agencies, and/or agents must identify themselves to us upon their entering the Maby Site, and when ordering any products from the Maby Site.
6.8 Listing Description.
By listing services available for booking via the Booking Services, Maby must accurately describe the services it provides and all terms of sale. Maby’s listings may only include text descriptions, and other content relevant to the sale of that service and must be listed in an appropriate category with appropriate tags.
6.9 Maintenance of Calendar.
Maby is responsible for the accurate maintenance and updating of its calendar to show current, correct availability for the Booking Services. In no event shall Maby be held liable for double-bookings or other schedule-related errors.
6.10 Ethical Selling Tactics Required; Communication with Customers.
Maby shall utilize ethical selling tactics when promoting any and all services including refraining from the making of false and/or misleading statements regarding the services and/or Maby. Maby expressly agree to conduct themselves at all times in an ethical, moral, and lawful manner. In order to assist with the same, Maby may from time to time in its sole and exclusive discretion place limits on the types of communications that Maby may send to Customers, including but not limited to mass targeted marketing campaigns via SMS text, email, or push notification.
In addition to the forgoing, Maby shall not abuse any communication system made available via the Maby Application or the Maby Site, including the use of auto-responders. Maby understand that such auto-responders may or may not be activated automatically upon registration of a Maby Account, depending on jurisdiction, and can be modified by Maby via its account settings.
6.11 Compliance with Law.
In addition to the other requirements to comply with laws, regulations, and terms set forth herein, Maby agree to obey any and all local, state, and federal regulations and laws regarding solicitation and sales.
6.12 Freedom of Promotional Methods.
Notwithstanding the forgoing, Maby shall be free to choose on which social media platforms and through such other mediums and sales channels they promote their services and use of the Services, including the ability to choose his, her, or its own operation means, methods, locations, and hours.
6.13 Right of Refusal.
Maby may refuse to accept a booking made via the Booking Services for any or no reason whatsoever so long as such a refusal does not violate federal, state, or local laws, or any other rule or regulation.
6.14 Policies, Terms of Sale Required.
6.15 Processing Fees for Maby.
Maby who wish to use our Payment Services shall be charged a fee for processing payments according to the current local pricing, (the “Processing Fee.”) For details, contact [email protected] Such Processing Fee shall be subject to change without notice in our sole and exclusive discretion. Such Service Fee shall not be refundable to Maby, for any reason whatsoever, including in the instance Maby shall have to refund a purchase to a Customer.
6.16 Chargebacks and Revocations.
If a Customer is not the authorized user of the payment method or otherwise contests the transaction, the amount of a transaction may be reversed or charged back provided that the transaction: (a) is disputed, (b) is reversed for any reason by the payment network, Maby’s payment gateway provider, or the Customer or its financial institution, (c) was not authorized or Maby has any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of these Terms. For any transaction that results in a chargeback, Maby will withhold the chargeback amount in a reserve from the amounts payable to Maby. We may recoup the amount of any chargeback and any associated fees and fines assessed by a network or our processor. In addition to the forgoing, be advised that Maby may charge a chargeback processing fee. If you have pending chargebacks, we may delay payments, and if we reasonably believe that a chargeback is likely with respect to any transaction, we may withhold the amount of the potential chargeback from payments otherwise due to you until such time that: (a) a chargeback is assessed due to a Customer complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which your customer may dispute that the transaction has expired; or (c) we determine that a chargeback on the transaction will not occur. If we are unable to recover funds related to a chargeback for which you are liable, you agree to pay us the full amount of the chargeback immediately upon demand. You agree to pay all costs and expenses, including attorneys’ fees and other legal expenses, incurred by us for the collection of all amounts unpaid by you.
If we believe you might incur, or you are incurring, an excessive amount of chargebacks, we may establish additional conditions governing your account, including (a) establishing new processing fees, (b) creating a reserve in an amount reasonably determined by us to cover anticipated chargebacks and related fees, (c) delaying payouts, or (d) terminating or suspending the Payment Services.
We will assist you, when requested and at your expense, to investigate any of your transactions processed through the Payment Services. To that end, you permit us to share information about a chargeback with the Customer, the Customer’s financial institution, our payment processor, payment networks and your financial institution in order to investigate and/or mediate a chargeback. We will request necessary information from you to contest the chargeback. If the chargeback is contested successfully, we will release corresponding reserved funds to your account. If a chargeback dispute is not resolved in your favor by the network or issuing bank or you choose not to contest the chargeback, we may recover the chargeback amount and any associated fees as described in these terms. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within seven (7) calendar days of our request, may result in an irreversible chargeback.
6.17 Withholding of Funds.
Where we, in our reasonable opinion, are required to do so by law, we reserve the right to withhold funds for services that we reasonably deem suspicious with regard to money laundering, Unauthorized Business, fraud, or other illegal activities or in case of any other chargebacks or revocations.
Once you create your Maby Account, through the secure form you will have the opportunity to designate a deposit account into which you wish to be paid out. Once funds for the Payment Services have been completed and are settled, they shall be available for withdraw. For U.S.-based Maby, payouts shall automatically be transferred to your deposit account less any fees every business day. For all other Maby, payouts are generally made to your designated deposit account less any fees within 2-3 business days.
Except as required by law, you shall remain solely and exclusively responsible for retaining permanent records of all transactions processed via your Maby Account Settings.
We are not responsible and accept no liability for any delay of payout. To inquire about a payout schedule for any particular transaction please review your Payment Report or contact Maby at [email protected].
In the event your payout account becomes negative, you agree that we have the right to offset any incoming payments against the negative balance. Should you fail to bring your account to positive, we may block you from accepting further payments and institute legal proceedings for collection.
6.19 Responsibility for Accurate Pay Out Information.
You agree to provide current, complete, and accurate deposit account information for payout. You agree to promptly update your Maby Account and other information, including your address, email address and bank account information, so that we can complete your transactions and contact you as needed.
Maby may require the Maby to maintain deposits in an escrow account to act as a provision against chargebacks and refunds. The amount of such deposits will be determined by Maby.
6.21 Processing Errors.
We will attempt to fix processing errors we discover. If the error resulted in your receipt of fewer funds than you were entitled, we will credit your Maby Account for the difference. If the error results in your receipt of more funds than you were entitled, Maby will debit the extra funds from your Maby Account or your linked bank account. You shall remit to Maby the difference within thirty (30) calendar days of demand therefore. We will only correct transactions that you process incorrectly if you notify us of such an error. Your failure to notify us of a processing error within thirty (30) calendar days of when it first appears on your electronic transaction history may be deemed a waiver of any right to amounts owed to you.
By accepting card transactions through the Payment Services, you agree to process returns of, and provide refunds and adjustments for your goods or services in accordance with these Terms. You are obliged to disclose your refund or cancellation policy to Customers at the time of purchase and/or booking, as applicable, and can refund transactions up to thirty (30) calendar days following the date of said transaction. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage that the customer paid to return merchandise. If your refund policy prohibits returns or is unsatisfactory to the Customer, you may still receive a chargeback relating to such sales.
Maby will automatically process refunds on your behalf from your available balance or deposit amount and shall not be liable for refunds made in error or in violation of your own policies. If your available balance or deposit amount is insufficient to cover the refund, Maby will withdraw the requested refund amount and credit it back to your Customer. Further refunds may be accepted but will only be processed once your account shows a positive balance. For every refund Maby may charge a refund processing fee.
Maby has no obligation to accept any returns of any of your goods or services on your behalf pursuant to the applicable Network Rules (as defined below.) By using the Payment Services, you agree to comply with all applicable bylaws, rules, and regulations set forth by the payment processing networks and Ayden N.V. (“Network Rules”). The payment processing networks amend their rules and regulations from time to time. Maby may be required to change these terms in connection with amendments to the Network Rules. Significant portions of the Network Rules are available to the public at https://visa.com, https://www.mastercard.com, and https://www.americanexpress.com/merchantopguide. In the event of inconsistency between a Network Rule and these terms, and except as otherwise agreed between Maby and the payment processing networks, the Network Rules shall apply.
6.23 Right to Set-Off; Collection Rights.
We are entitled to set-off any and all claims against amounts payable to Maby by Maby. In addition, to the maximum extent provided by law, we may collect any and all obligations due and owing by you to us by deducting them from your pending transactions in the deposit account. Fees shall be assessed at the time of transaction processing and will be deducted from the funds received. Your failure to pay all amounts due and owning shall be deemed an immediate breach of this Agreement for which you will be liable. You further agree to pay all fees and costs, including but not limited to attorneys’ fees and costs, incurred by or on our behalf arising from or related to the collection of any unpaid obligations by you.
6.24 Payment of Taxes.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your use of the Payment Services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. If you are a Maby based in the United States and in a given calendar year you process (i) more than $20,000 in gross amount of payments and (ii) more than Two Hundred (200) payments, Maby or its payment processor may be required by law to report information about you and your use of the Payment Services to the Internal Revenue Service (“IRS”). For purposes of determining whether you have met the IRS reporting threshold, the gross amount does not include any adjustments for credits, cash equivalents, discount amounts, fees, refunded amounts or any other amounts. Whether you reach $20,000 in payments or more than Two Hundred (200) payments will be determined by looking at our Payment Service information associated with your Maby Account. In order to be able to meet said regulatory obligations, before Maby meets the thresholds, we will need additional information, including a completed IRS form W9 for U.S.-based Maby. We are entitled to block the Payment Services for a Maby that fails to provide us with all the needed information based on the applicable taxation rules and regulations.
6.25 Additional Products and Services, Generally.
We may, from time to time, offer additional products and services for purchase by Maby, such as additional text messages, or payment processing hardware and technical support, and lead generation. Such additional products and services shall be subject to additional service fees, which shall be set out at the point of sale and subject to change in or sole and exclusive discretion and set forth in a separate agreement between the Customer and Maby or a Maby affiliate offering such products and services. In the event that such additional services include lead generation for Maby, Maby agrees and acknowledges that it will be responsible for the payment of a commission to Maby for first-time Customers who utilize the Booking Services. In such an event, Maby and Maby shall agree in good faith on a set number of leads generated with Maby retaining ultimate authority to determine the same.
6.26 Transaction History.
You may, at any time, access your transaction history via your Account settings. Such history may include the ability to track commissions and inventory and otherwise receive statistics and reports on the performance of your Maby. While we endeavor to keep all such information complete, timely, and accurate, we do not warrant that all transaction history shall be error-free. You are encouraged to maintain your own transaction history and financial information and to verify the same with your corporate accountant. By using the Maby Application and Maby Site you acknowledge that your reliance on any such information provided by Maby is at your own risk. Maby shall not be held liable in the event such information is inaccurate or incomplete.
VII – Privacy ; Intellectual Property; Branding.
7.1 Intellectual Property Rights Not Waived.
Furthermore, all material displayed or transmitted on the Services, including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics, (hereinafter “Materials,”) are owned by us and are protected by U.S. and international copyright, trademarks, service marks, and other proprietary rights, laws, and treaties.
Except as provided, you may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials carried on the Services, nor may you infringe upon any of the copyrights or other intellectual property rights contained in the Materials. You may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials.
You may make a single print copy of any Materials provided by us on the Services for personal, non-commercial use only, provided that you do not remove or cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Materials. You may not archive or retain any of the Materials accessed on this Services without our express written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to us and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to [email protected].
You may have the opportunity to provide reviews, suggestions, ideas, and feedback, (hereinafter, collectively, “Feedback.”) Should you so provide such Feedback you grant us sole ownership of the same, which includes, without limitation, the right for us or any third party we designate, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the content submitted by you, you hereby declare that (a) you do not require that any personally- identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the content by us or our licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and (d) you forever release us, and our licensees, successors and assigns, from any claims that you could otherwise assert against us by virtue of any such moral rights. You also permit any other User to access, view, store or reproduce the content for that User’s personal use.
Notwithstanding the foregoing, you acknowledge that your Feedback may contain concepts, ideas, materials, proposals, suggestions, and the like relating to Maby or its initiatives, (hereinafter your “Ideas.”) With respect to your Ideas you acknowledge that: (a) we receive numerous submissions from many parties and/or may have independently-developed and/or considered ideas similar to your Ideas, and that our review of your Ideas is not an admission of novelty, priority, or originality; and (b) our use of any ideas similar to your Ideas, whether based on your Feedback or Submissions, provided to us by third parties, or independently- developed or considered by us, shall be without obligation to you.
7.3 Grant of License by User.
7.4 Confidential Information of Customers.
7.5 Application License by Maby.
Subject to the terms and conditions of this Agreement, Maby grants User a non-exclusive, non-transferable, revocable license to use the Maby Application, in object code form only, on User’s compatible devices including but not limited to mobile devices, solely to support User’s permitted use of the Services.
7.6 DCMA Notice of Infringement.
If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section 7.6.In order for us to take action, you must do the following in your notice:(a) provide your physical or electronic signature;(b) identify the copyrighted work that you believe is being infringed;(c) identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it;(d) provide us with a way to contact you, such as your address, telephone number, or email;(e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and (f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for our copyright agent:
Houston, TX, USA
PLEASE NOTE: We cannot take action unless you give us all the required information.
VIII – Third-Party Advertisements, Promotions, Platforms, and Links.
8.1 Third Party Advertisements and Promotions.
We may, from time to tim, run advertisements and promotions from third parties on the Services. Your dealings or correspondence with, or participation in promotions of advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on the Services.
8.2 Use of Third-Party Tools and Platforms.
You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools and Third-Party Platforms.
Any use by you of optional tools offered through the Services is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
8.3 Third-Party Links.
Certain content, products, and services available via our Services may include materials from third-parties. Third-party links on the Services may direct you to third-party Web sites and/or services that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any third-party materials or Web sites and/or services, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party with whom you connect via the Services. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
IX: Disclaimers; Limitations Of Liability; Indemnification
9.1 Disclaimer Of Warranty; Limitation Of Liability.
You agree that use of the Services is at your sole risk. Neither us nor our affiliates nor any respective employees, agents, third-party content providers or licensors warrant that the use of the Services shall be uninterrupted or error free; nor do we make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy, reliability, or content of any information provided.
To the maximum extent permitted by law, in no event shall we, our employees, subsidiaries, parents, agents, partners, third-party content providers, affiliates, vendors, and/or our or their respective directors and officers be liable for any injuries, losses, claims, or direct damages or any special, exemplary, punitive, incidental, or consequential damages of any kind, whether based in contract, tort, or otherwise, including but not limited to loss of profits, personal injury or death, property damage, reputational harm, or loss of information or data, and even if advised of the possibility of such damages, which arise out of or are any way connected with or relate to (1) this Agreement, (2) any use of the Services, hardware or accessories, materials, or the user content, (3) any failure or delay (including, but not limited to, the use or inability to use any component of the booking services or payment services), or (4) your visit to any Maby or the performance, non-performance, conduct, or policies of any Maby or Customer in connection with the Services. In addition, you specifically understand and agree that any third party directing you to the Maby site by referral, link, or any other means is not liable to user for any reason whatsoever, including, but not limited to, damages or loss associated with the use of the Services. Maby is neither an agent of nor otherwise associated with any Maby for which a Customer has made a reservation or paid a bill using the Payment Services.
We disclaim any and all liability of any kind for any unauthorized access to or use of your personally-identifiable information. By utilizing the Services, you acknowledge and agree to our disclaimer of any such liability. If you do not agree, you should not access or otherwise utilize the Services. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above limitations may not apply to certain Users.
The above limitations shall survive these Terms and inure to the benefit of us and our affiliates and respective directors, officers, employees, and agents. You and Maby understand and agree that the disclaimers, exclusions, and limitations in this Section 9.1 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Maby would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
You agree to defend, indemnify and hold us harmless, as well as our affiliates and vendors and respective directors, officers, users, and agents, from and against all claims, suits, and expenses, including attorneys’ fees, arising out of or related to (a) your use of the Maby Site and/or the Mobile Maby Application; (b) your noncompliance with or breach of this agreement; (c) your use of third-party services, platforms, products, links, advertisements, and/or tools; (d) your violations of any third-party rights, including third-party intellectual property rights in submissions and feedback; (e) the unauthorized use of the Services by any other person using your information; (f) your failure to comply with the network rules or pci- dss security standards, including the compromise of any payment information.
You understand that Maby and Customers are solely responsible for their interactions between each other and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you, your Maby as a result of your (or such recipient’s) interaction with a User or visit to any Maby or from any product or service of any Maby. You hereby release the Maby from any and all such Claims.
In connection with the foregoing, if you are a California resident, you hereby waive California civil code section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Maby pertaining to the subject matter of this Section 9.3.
X – Governing Law; Arbitration Agreement And Jury Trial Waiver, Class Action Waiver, And Forum Selection.
10.1 Governing Law.
This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Delaware for those Users who enter into this Agreement with Maby, Inc., and the country of Poland for those Users who enter into this Agreement with Maby International Sp. z.o.o., without giving effect to any principles that provide for the application of the law of another jurisdiction.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitration choice related to the controversy, dispute, demand, count, claim, or cause of action) between you and Maby or its successors or assigns shall exclusively be settled through binding and confidential arbitrating.
Arbitration shall be subject to the UNCITRAL Arbitration Rules and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from UNCIRAL. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the UNICTRAL’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). You are thus giving up your right to go to court to assert or defend your rights except for matters that you file in small claims court. your rights will be determined by a neutral arbitrator and not a judge or jury. you are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court. You and Maby must abide by the following rules: (1) any claims brought by you or Maby must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding; (2) the arbitrator may not consolidate more than one person’s claims, may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Maby will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) Maby also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or Maby may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Maby shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York, New York.
XI – Miscellaneous.
11.1 Customer Service.
Should you have any questions, comments or concerns regarding the Services, customer service may be contacted at any time at +1 (XXX) XXX-XXX or via email at [email protected] or by postal mail at Houston, TX XXXXXX, US.
11.2 Affiliate Disclosure.
We may have an affiliate relationship with third-parties and affiliates to whose products and/or services we link and promote through the Services. Because of this relationship, we may earn a commission on products purchased by a User from a third-party affiliate or partnership.
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
11.5 Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as a storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by Maby.
11.7 Rights of Third Parties.
These Terms do not give any right to any third party unless explicitly stated herein.
11.8 Relationship of the Parties.
The parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between them. Neither party has authority to enter into terms of any kind in the name of the other party or of any third-party that may have a right pursuant to these Terms.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Maby, Inc., 19C Trolley Square, Wilmington, DE 19806, and in the case of any User, to the email address you provide to us (either during the registration process or when your email address changes). Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon Account registration. In such case, notice shall be deemed given three (3) calendar days after the date of mailing.
11.11 Effective Date.