Last Updated and effective as of: May 5, 2020
Welcome, and thank you for your interest in Beanstalk Interactive Company! These terms of service (“Terms”) establish the terms and conditions that apply to you when you use the Service (as defined below).
BY USING THE SERVICE OR BY CLICKING “I AGREE” YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND YOUR AGREEMENT TO BE BOUND BY THESE TERMS, AS WELL AS ALL APPLICABLE LAWS AND REGULATIONS. IN THE CONTEXT OF THIS AGREEMENT, YOU ACCEPT THE TERMS ON BEHALF OF YOURSELF ANY OTHER ADULTS OR MINORS UNDER YOUR CARE OR IN YOUR HOUSEHOLD IN GENERAL OR DURING A CLASS WHO WILL, COULD OR MAY PARTICIPATE IN CLASS (COLLECTIVELY “YOU,” “ YOUR,” “THEY,” “THEIR,” “USER(S),” “CUSTOMER(S),” AND “PARTICIPANTS”). YOU ARE NOT PERMITTED TO USE THE SERVICE IF YOU DO NOT AGREE TO THESE TERMS. THESE TERMS CAN BE CHANGED, MODIFIED, SUPPLEMENTED, AND/OR UPDATED BY BEANSTALK INTERACTIVE COMPANY (“BEANSTALK” “WE,” “OUR,” OR “US”) AT ANY TIME; PROVIDED THAT WE WILL ENDEAVOR TO PROVIDE YOU WITH PRIOR NOTICE OF ANY MATERIAL CHANGES. YOUR CONTINUED USE OF THE SERVICE AFTER THE MODIFICATION OF THESE TERMS MEANS THAT YOU ACCEPT ALL SUCH CHANGES. ACCORDINGLY, YOU ARE ADVISED TO CONSULT THESE TERMS EACH TIME YOU ACCESS THE SERVICE IN ORDER TO VIEW ANY CHANGES TO THESE TERMS. THESE TERMS WERE LAST MODIFIED AS OF THE DATE INDICATED ABOVE
.AS FURTHER DESCRIBED BELOW, YOU SHOULD CONSULT YOUR PEDIATRICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE ENGAGING IN THIS OR ANY OTHER PHYSICAL, AUDITORY OR VISUAL ACTIVITIES WITH YOUR CHILD. THIS IS PARTICULARLY TRUE IF YOU OR YOUR CHILD HAVE BEEN DIAGNOSED TO HAVE, SUSPECTED OF HAVING OR HAVE A FAMILY HISTORY OF PHYSICAL OR DEVELOPMENTAL ABILITIES OR INABILITIES THAT WOULD LIMIT THEIR ABILITY TO PARTICIPATE FULLY AND SAFELY IN THE REASONABLE ACTIVITIES OFFERED IN OUR CLASSES. EACH CLASS IS DIFFERENT AND HAS ITS OWN EXPERIENCES. IT IS YOUR RESPONSIBILITY AS THE CUSTOMER TO ENSURE THAT YOU AND YOUR CHILD ARE PARTICIPATING SAFELY AND TO REDUCE OR AVOID ANY ACTIVITIES THAT ARE UNSAFE OR INAPPROPRIATE FOR YOU AND YOUR CHILD. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK.
IN THE EVENT OF A MEDICAL OR HEALTH EMERGENCY, PLEASE CALL 911 OR APPROPRIATE EMERGENCY RESPONDERS IMMEDIATELY.
AS FURTHER DESCRIBED BELOW, THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Use of the Service
1. The “Service” is Beanstalk’s website located at beanstalk.co and Beanstalk’s mobile, tablet, computer, smart TVs and TV connected device applications, as each may be updated, relocated, or otherwise modified from time to time, including through networks, embeddable widgets, downloadable software, app or channel store systems and processes, and all intellectual property contained therein. The Service provides a platform to enable users to access, participate in and watch live and on-demand children’s entertainment classes, games and video content on their personal computer, mobile device, TV connected device or smart TV and to purchase certain related merchandise (“Merchandise”).
2. Subject to the terms and conditions of these Terms,Beanstalk hereby grants you a limited revocable, non-exclusive, non-transferable license to access and use the Service, solely in the manner intended by Beanstalk. Unless otherwise specified in writing, the Service is solely for your personal use and those in your household or under your direct supervision and not for resale. Beanstalk reserves the right at all times and without notice to: (i) restrict and/or terminate your access to the Service (or any portion thereof); and (ii) modify or discontinue providing the Service (or any portion thereof).
4. Your Beanstalk Classes and or Merchandise may include or suggest the use of items that we believe to be safe for young children, but adult supervision is required at all times. The manufacturer of some items that we sell and/or suggest, recommend or that one of our instructors use may intend or recommend the items only for children older than your child, so please use caution with all items and make sure each item is appropriate and safe for your unique child. Warning: some items may include small parts, balloons, small balls or marbles and may be a choking or suffocation hazard. Discard any broken or defective items immediately. Beanstalk Interactive Company disclaims all express or implied warranties, including, without limitation, any warranty of merchantability or fitness for a particular use or purpose.
YOU ARE SOLELY RESPONSIBLE FOR DETERMINING IF THE PRODUCTS ARE SUITABLE FOR USE BY YOUR CHILDREN OR GIFT RECIPIENTS. WE ARE NOT ABLE TO PROVIDE ANY ASSURANCES REGARDING SAFETY OR APPROPRIATENESS OF OUR PRODUCTS FOR YOUR CHILD BECAUSE EACH CHILD IS DIFFERENT IN THEIR PHYSICAL AND INTELLECTUAL CAPABILITIES AND PERSONALITY. FURTHERMORE, OUR PRODUCTS SHOULD ALWAYS BE ENJOYED BY CHILDREN UNDER THE DIRECT SUPERVISION OF A RESPONSIBLE PARENT OR CARETAKER OVER THE AGE OF 18.
Developmental curriculum that we provide as part of our product is provided as a guide appropriate for a majority of children and caretakers, however, WE MAKE NO ASSURANCES THAT IT WILL BE APPROPRIATE OR ACCURATE FOR YOUR CHILDREN OR GIFT RECIPIENT BECAUSE EVERY CHILD IS DIFFERENT IN THEIR PHYSICAL AND INTELLECTUAL CAPABILITIES AND PERSONALITY. As a parent or caretaker you must use your independent judgment about how, when and if to provide each product to a child regardless of the suggestions provided in our curriculum.
1. Registration, Accounts, Passwords and Security
2. Participant. In order to become a participant, you must complete the registration process by providing Beanstalk with current, complete and accurate information, as prompted by the applicable registration form.
3. Accuracy of Information. You acknowledge that in the event you provide any information to Beanstalk which is untrue, inaccurate, not current or incomplete, Beanstalk may terminate these Terms and your continued access and use of the Service.
4. Eligibility. You represent and warrant that you are at least 18 years of age, that you have not been previously suspended or removed from the Service, you reside in the United States or Canada and that you possess the legal right and ability to enter into these Terms. THE SERVICE IS INTENDED FOR PERSONS UNDER THE AGE OF 18 ONLY UNDER THE DIRECT SUPERVISION OF SOMEONE OVER THE AGE OF 18. BEANSTALK IS NOT INTENDED FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY BEANSTALK. IF YOU ARE UNDER 18 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER EXCEPT IN THE SUPERVISION OF AN ADULT.
5. If you are using the Service on behalf of an individual, company, entity, or organization (each, an “Organization”), you represent and warrant that (A) you are an authorized representative of such Organization with the authority to bind such Organization to these Terms, (B) agree to be bound by these Terms on behalf of such Organization, and (C) your Organization meets the eligibility requirements for the Service, as set forth in these Terms. Further, you will be solely responsible for ensuring your Organization complies with these Terms.
6. Credentials. As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. You agree to notify Beanstalk immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at email@example.com. You are responsible for all use of the Service occurring under your username. You are responsible for keeping your password confidential and for notifying us if your password has been hacked or stolen. Beanstalk will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may be held liable for any losses incurred by Beanstalk or another party due to someone else using your account or password.
7. Your Responsibilities
You may use the Service solely for lawful purposes, as intended through the provided functionality of the Service. You may not use the Service in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, user accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you expressly agree that you will not (and you agree not to allow or assist any third party to):
1. use, copy, install, transfer or distribute the Service, except as specifically permitted by these Terms;
2. modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Service or its Content (as defined below);
3. remove or alter any copyright, trademark or other proprietary rights notices contained in or on the Service or in or on any content or other material obtained through the Service or the use of the Service;
4. create user accounts by automated means or under false or fraudulent pretenses;
5. use any robot, spider, screen or database scraper, site search or retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Service;
6. probe, scan or test the vulnerability of any system or network or breach any security or authentication measures;
7. reformat, mirror, or frame any portion of the web pages that are part of the Service;
8. express or imply that any statements you make are endorsed by us, without our prior written consent in each instance;
9. i. transmit (i) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes on our or any third party’s intellectual property or other rights, (ii) any material, non-public information about individuals or companies without the authorization to do so, (iii) any trade secret of any third party, and/or (iv) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
10. transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component; use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
11. harvest or collect information about other users without their prior written consent;
12. undertake, cause, permit or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including Content, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the Service’s authorized features, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Beanstalk;
13. access, tamper with, or use non-public areas of the Service,Beanstalk’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Beanstalk’s providers;
14. harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Beanstalk employees and other users;
15. create a new account with Beanstalk, without Beanstalk’s express written consent, if Beanstalk previously disabled an account of yours;
16. solicit, or attempt to solicit, personal information from other users, except as permitted through the Service’s functionality;
17. restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users;
18. gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
19. violate any applicable federal, state or local laws, regulations or these Terms;
20. use the Service for any illegal, inappropriate and/or unauthorized conduct, including without limitation, using the Service to contact other Beanstalk Users for sexual or other inappropriate purposes, or using the Service in violation of Beanstalk’s or any third party’s intellectual property or other proprietary or legal rights; or
21. use or access the Service to build a competing service. We may take any legal action and implement any technical remedies to prevent the violation of these provisions and to enforce these Terms.
22. Payment Terms and Order Processing
23. Access to the Service, or to certain features of the Service, may require you to pay fees, and may provide you the option to activate recurring automatic payments for those fees. Before you pay any fees, including before activating or updating any recurring payments, you will have an opportunity to review the fees that you will be charged before you accept them. If you activate or update recurring payments through the Service, you authorize Beanstalk to periodically charge, on a going-forward basis and until cancellation, all accrued sums on or before the payment due date for the accrued sums. You can cancel recurring charges by following the instructions in your account settings. It may take up to 7 business days for the update or cancellation to take effect.
24. All fees are in the currency that is presented (e.g. $ means US dollars, CAD means Canadian dollars, £ means UK Pound, € means Euros,etc) and are non-refundable. Beanstalk may change the fees for the Service or any feature of the Service, including by adding fees, on a going-forward basis at any time. If Beanstalk changes the fees for the Service, including by adding additional fees or charges, you will be provided advance notice of those changes and the opportunity to accept the changes. If you do not accept the changes, Beanstalk may discontinue providing the Service to you.
26. All purchases of Merchandise from Beanstalk are made pursuant to a shipment contract. This means that the risk of loss and title for Merchandise pass to you upon our delivery to the carrier of the applicable Merchandise. You are responsible for payment of all shipping charges, both for initial purchase of any Merchandise, as well as shipping charges for returns as indicated at time of purchase. If Beanstalk elects to offer free shipping for an order it will be indicated before the order is placed and does not include free returns unless it is specified by Beanstalk at the time of return. Beanstalk does not take title to returned items until the item arrives at our fulfillment center. For more information about our returns and refunds, please see our return policy posted on our website. Beanstalk attempts to be as accurate as possible when describing its Merchandise. However, Beanstalk does not warrant that product descriptions or other content of the Service is accurate, complete, reliable, current, or error-free. If you are unsatisfied with merchandise for any reason, your sole remedy is to return it in unused condition in exchange for a refund of your payment, unless, at it’s sole discretion, Beanstalk elects to offer additional remedies.
27. Consent to Electronic Communications
29. If you wish to remove yourself from any email list (other than as set forth in Section 5.b), please email us at firstname.lastname@example.org with an “OPT-OUT”, “UNSUBSCRIBE”, “STOP” or “REMOVE” in the subject line.
30. Depending on your current carrier plan, you may incur charges for these Messages and Notifications and agree to not hold Beanstalk liable for any charges incurred. You acknowledge that any terms between you and any third-party provider (such as, for example, Apple®, Android™, or Verizon) create no obligation or responsibility on the part of Beanstalk, and that Beanstalk is not responsible for any failure of warranty by any such third party.
31. Beanstalk cannot control certain factors relating to message delivery. You acknowledge that, depending on your mobile carrier’s service, it may not be possible to transmit a text message to you successfully. We have no liability for transmission delays or message failures.
Content Submitted to the Service
1. By sending or transmitting to us information, opinions, creative suggestions, ideas, notes, concepts, or other materials (collectively, “Materials”), or by posting such Materials to any area of the Service, you grant Beanstalk and its designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Materials in any media now known or hereafter developed to enhance and develop the Service, including by marketing and advertising the Service, without compensation to you; provided that we will never use your name in connection with any of your Materials that we use in our own advertising and marketing materials without obtaining your prior consent. None of the Materials will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any Materials. Beanstalk may remove or alter any Materials at any time for any reason. We neither endorse nor are responsible for any opinion, advice, information, or statement made or displayed on the Service by any user. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, or for any results obtained from the use of such information. Under no circumstances will Beanstalk and/or its affiliates, suppliers, or agents be liable for any loss or damage caused by your reliance on such information obtained through the Service. We cannot and do not take responsibility for the veracity, reliability, or completeness of any opinion, advice, information, or statement available on the Service.
2. The opinions expressed on the Service by users reflect solely the opinions of the users who post thereon and do not reflect the opinions of Beanstalk. You acknowledge and agree that we have the right (but not the obligation) to monitor the Service and Materials; to alter or remove any Materials; and to disclose Materials and the circumstances surrounding their transmission to any third party in order to operate the Service properly; to protect ourselves, our sponsors, and our members and visitors; and to comply with legal obligations or governmental requests. If you believe a message violates our member policies, please contact Beanstalk immediately at email@example.com so that we can consider its editing or removal.
3. You are solely responsible for your Materials and the consequences of posting them on the Service. By posting Materials, you represent, warrant, and covenant that: (i) you are the creator and owner of the Materials or otherwise have sufficient rights and authority to grant the rights granted herein; (ii) your Materials do not and will not (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (B) slander, defame, or libel any other person; (iii) your Materials do not contain any viruses, adware, spyware, worms, or other harmful or malicious code or (iv) unless you have received prior written authorization, your Materials specifically do not contain any confidential information of any third party. We reserve all rights and remedies against any users who breach these representations and warranties.
4. Sending Messages. The Service may allow Participants to exchange messages (“Messages”) with each other. Sending Messages is a privilege, not a right, and Beanstalk may terminate such privileges of any Participant at any time and for any reason, without any liability to such Participant. Harmful, obscene, or offensive communications are not welcome in any Messages. If a user sends you an objectionable Message, please notify us by sending an e-mail to firstname.lastname@example.org. You should exercise discretion, good sense, and sound judgment when sending a Message. You are solely responsible for the content of any Message you send. You agree that Beanstalk may monitor Messages for compliance with these Terms, and therefore, Messages should not be considered confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transfer to the intended recipient through the Service and for such other purpose as Beanstalk may deem appropriate in its sole discretion.
Beanstalk may provide contests on the Service. The rules, regulations, and procedures governing such contests (“Contest Rules”) will be accessible through a hypertext link displayed on the web page where the contest or game may be located. By entering or participating in any of our contests or games, you agree to be subject to those rules, regulations and procedures as well as the terms and conditions of these Terms. In the event of a conflict between any Contest Rules and these Terms, the applicable Contest Rules will govern.
Term and Termination
2. Effect of Termination. The following Sections of these Terms will survive termination or expiration of the Agreement: 1.c, 2.c, 3, 5.e, 6, 8.b, 9, 10 – 16, 18 – 27. Payments by you, which accrue or are due before termination of your membership, will continue to be payable by you, and amounts owed to Beanstalk at the time of such termination or expiration will continue to be owed by you, after such expiration or termination.
1. Proprietary Information. You acknowledge and agree that: (i) the Service, including, without limitation, any articles, photos, videos, recordings or other content (“Content”), modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information”), is owned by Beanstalk and its licensors, as applicable; (ii) the Proprietary Information contains valuable copyrighted and proprietary material of Beanstalk; (iii) the Proprietary Information is licensed, rather than sold, to you pursuant to these Terms; and (iv) you have no rights in the Proprietary Information, other than the rights and licenses specifically granted to you pursuant to these Terms.
2. As between you and us, you own all content and information you post or share using the Site (referred to as “User Content”), such as posting or sharing comments, photos, and videos.
You give Beanstalk permission to use your User Content as follows: you grant to Beanstalk a license to reproduce, display, perform, distribute, modify, and otherwise use your User Content in connection with the Site and for other marketing purposes, including without limitation in Beanstalk email, website, live and on demand videos, social media sites and other customer communications, as well as with our Beanstalk partners. We may display advertisements in connection with your User Content or on pages where your User Content may be viewed by you or others, and we may use your User Content to advertise and promote Beanstalk or the Site. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. Our license to your User Content is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights anywhere in the world. Finally, our license is perpetual, meaning that our license lasts for an indefinite period of time.
You promise that:
* You own all rights to your User Content or, alternatively, that you have the right to give Beanstalk the rights described above;
* You have paid and will pay in full any fees or other payments that may be related to the use of your User Content; and
* Your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.We may refuse to accept or transmit User Content for any reason. We may remove User Content from the Site for any reason.
Class Participation Waiver
1. You acknowledge that participation inactivity classes via the Service including but not limited to art, cooking, yoga, dancing, singing and fitness involves dexterity, strength, flexibility, precision, and other skills, including the use of equipment such as scissors, eating utensils and kitchen equipment, glue and tape, and other items, all of which can be potentially hazardous if not used correctly or if used by a child without adult supervision. You accept full responsibility over the location where you engage in activity classes via the Service, you acknowledge that Beanstalk has no control over the location that you choose, and that the location of participation in activities involves additional risks, including, but not limited to, those caused by terrain, facilities, temperature, weather. You accept responsibility for any equipment that you choose to use whether it is similar or the same as those used by the instructor or not.
2. In becoming a participant with the intent of using the Service, you affirm that you and all other participants who use your account are physically and mentally able to safely use the service and/or opt out of activities which would be unsafe. Beanstalk reserves the right to refuse or cancel your membership if we determine that you have certain conditions or that the representations set forth above are untrue in any respect.
3. By using the Service, you: (i) acknowledge and agree that you are voluntarily participating in children’s classes provided via the Service; (ii) hereby assume and accept any and all risks of injury, physical harm, or death; (iii) acknowledge and represent that you are physically sound and do not suffer from any illness, impairment, disease or other condition that would prevent you from participating in the fitness classes, performing any exercises, or using any equipment; and (iv) knowingly and voluntarily, on behalf of yourself and your heirs and assigns, forever waive, release, discharge and hold harmless Beanstalk and its subsidiaries and affiliates, and each of their respective officers, directors, employees, agents, representatives, and each of their respective successors and assigns, individually and collectively, from any and all liability, damages, losses, suits, demands, causes of action (including, without limitation, negligence) or other claims of any nature whatsoever, including, without limitation, any losses for property damage, personal injury, or death, arising out of or relating in any way to your participation in the fitness classes provided via the Service.
Professional Advice and Medical Disclaimer
1. THE SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ OR HEARD ON THE SERVICE. DO NOT USE THE SERVICE IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING, YOU SHOULD STOP IMMEDIATELY.
2. NOTHING STATED OR POSTED OR OTHERWISE AVAILABLE THROUGH THE SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. THE SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND BEANSTALK MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE OR ITS SUITABILITY FOR YOU. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL INFORMATION THAT APPEARS ON THE SERVICE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK.
Disclaimer of Warranties
1. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. YOU ACKNOWLEDGE THAT, BECAUSE OF THE NATURE OF THE INTERNET, MOBILE NETWORKS, AND THE DEVICES WHICH ACCESS THE INTERNET AND/OR MOBILE NETWORKS, THE SERVICE MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT INFORMATION, DATA, AUDIO AND VIDEO TRANSMITTED OVER THE INTERNET AND/OR MOBILE NETWORKS MAY BE SUBJECT TO INTERRUPTION OR THIRD PARTY INTERCEPTION AND MODIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW,BEANSTALK DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANT ABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE. TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF BEANSTALK, ITS AFFILIATES OR SERVICE PROVIDERS, BEANSTALK’S CONTENT PROVIDERS AND/OR THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES NOR THE EMPLOYEES, AGENTS AND/OR CONTRACTORS (COLLECTIVELY, THE “BEANSTALK PARTIES”) WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE SERVICE. BEANSTALK CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET OR FOR YOUR MISUSE OF ANY OF CONTENT AND INFORMATION ACCESSED THROUGH THE SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE AND YOUR RELIANCE UPON ANY OF THE RESPECTIVE CONTENT IS AT YOUR SOLE RISK.
2. You acknowledge that any information you obtain from another Participant comes from those individuals, and not from Beanstalk, and that Beanstalk, to the fullest extent permitted by law, is not in any way responsible for any of the information these third parties may supply or for any statements, claims, or representations they may make. To the fullest extent permitted by law, Beanstalk disclaims any such statements, claims, or representations and the same do not expand or otherwise modify the terms of these Terms. If you are dissatisfied with the Service, your sole and exclusive remedy is to discontinue accessing and using the Service.
Limitation of Liability
1. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTICIPANT IS SOLELY RESPONSIBLE FOR (I) HIS OR HER USE OF THE SERVICE, AND (II) ANY DAMAGES INCURRED BY HIM OR HER OR ANY THIRD PARTY THAT ARISE FROM OR ARE RELATED TO THE SERVICE. THE AGGREGATE LIABILITY OF THE BEANSTALK PARTIES FOR ANY DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO ACTUAL DAMAGES PROVED, AND NOT TO EXCEED THE AMOUNT PAID BY YOU TO BEANSTALK FOR THE SERVICE.
2. TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, NONE OF THE BEANSTALK PARTIES WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF BEANSTALK OR ITS CONTENT PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF THE BEANSTALK PARTIES WILL HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES; COSTS OR DAMAGES OF ANY KIND INCURRED OR SUFFERED BY YOU AS A RESULT OF SERVICES PROVIDED BY ANY OF OTHER PARTICIPANT PURSUANT TO THE SERVICE.
3. YOU REPRESENT THAT YOU HAVE INDEPENDENTLY INVESTIGATED THE ADVISABILITY OF USING THE SERVICE AND THE POSSIBLE RISKS INVOLVED IN USING THE SERVICE. YOU AGREE TO MAINTAIN YOUR OWN INSURANCE COVERING SUCH RISKS AND WILL LOOK SOLELY TO SUCH INSURANCE FOR REIMBURSEMENT OF ANY RESULTING DAMAGES.
Third Party Disputes
BEANSTALK IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY OTHER PARTICIPANT OR YOUR EMPLOYER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE BEANSTALK (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Beanstalk will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Beanstalk’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic or governmental action, in so far as such an event prevents or delays Beanstalk in fulfilling its obligations hereunder.
Indemnification and Release
1. To the fullest extent permitted by law, you will defend, indemnify and hold Beanstalk, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents, harmless against any loss or damage of any kind (including, without limitation, attorneys’ fees and lost revenues) arising from: (i) any and all breaches by you of these Terms or any representation, warranty or covenant contained herein; (ii) any and all use of the Service not specifically authorized hereunder and on the Service; and (iii) any and all claims and actions against Beanstalk by other parties to whom you allow access to the Service.
2. To the fullest extent permitted by law, you further waive, release and forever discharge the Beanstalk Parties from any and all responsibility or liability for injuries or damages resulting from your Massages or any other service obtained through the use of the Service, including injuries or damages caused by the negligent act or omission of the Released Parties or in any way arising out of or connected with the Service.
3. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You will not, in any event, settle any claim or matter without our written consent.
Additional Service Features
The Service may contain information on products and services provided by third parties, and links (including advertisements) to third party web sites. This information and these products, services, and links are provided only as a convenience to Participants. Beanstalk does not review or control this information or these products, services, or other web sites, and Beanstalk does not make any representations or warranties, express or implied, regarding this information or these products, services, or web sites. Inclusion of any of the foregoing in the Service does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Beanstalk with respect to any third party or its web site or content, or any information, products, or services provided by that third party. Beanstalk is under no obligation to maintain any link on the Service and may remove a link at any time in its sole discretion for any reason whatsoever.
Generally. In the interest of resolving disputes between you and Beanstalk in the most expedient and cost effective manner, you and Beanstalk agree that any dispute arising out of or in any way related to these Terms or your use of the Service will be resolved by binding arbitration. All disputes arising out of or relating to these Terms and Conditions shall be finally resolved by arbitration conducted in the English language in Denver, CO, U.S.A. under the commercial arbitration rules of the American Arbitration Association. The parties shall appoint as sole arbitrator a retired judge who presided in the State of Colorado. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys' fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, we shall be entitled to seek injunctive relief, security, or other equitable remedies from federal and state courts located in the State of Colorado or any other court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award punitive damages, including but not limited to federal or state statutes permitting multiple or punitive damage awards. Any purported award of punitive or multiple damages shall be beyond the arbitrator's authority, void, and unenforceable. BY AGREEING TO THESE TERMS OF SERVICE, YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO HAVE A COURT HEAR CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT, AMONG OTHER WAIVERS OF RIGHTS SET FORTH IN THIS AGREEMENT.
1. Exceptions. Despite the provisions of the Section entitled “Dispute Resolution” directly above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
2. Arbitrator. Any arbitration between you and Beanstalk will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Beanstalk. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
3. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or electronic mail within the applicable statute of limitations period (“Notice”).Beanstalk’s address for Notice is: 45 Main Street, Ste 234, Brooklyn, NY 11201. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Beanstalk may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Beanstalk must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Beanstalk will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Beanstalk in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
4. Fees. If you commence arbitration in accordance with these Terms,Beanstalk will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Beanstalk for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
5. No Class Actions. UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW IN YOUR JURISDICTION, YOU AND BEANSTALK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ. WHICH ARE NOT COVERED BY THIS SECTION 18). Further, unless both you and Beanstalk agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
6. Modifications to this Arbitration Provision. If Beanstalk makes any future change to this arbitration provision, other than a change to Beanstalk’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Beanstalk’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Beanstalk. If you do not send such written notice, your continued use of the Service following any such change means that you have consented to such change.
7. Enforceability. If the Section entitled “No Class Actions” is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the parties agreethat the exclusive jurisdiction and venue described directly in Section 20 below will govern any action arising out of or related to these Terms or your use of the Service.
8. Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Dispute Resolution provision, you may opt out of this Dispute Resolution provision by notifying Beanstalk in writing of your decision by sending, within 30 days of the date you receive these Terms, an electronic message to email@example.com, stating clearly your full name and intent to opt out of the Dispute Resolution provision. Should you choose not to opt out of this Dispute Resolution provision within the 30-day period, you and Beanstalk will be bound by the terms of this Dispute Resolution provision. You have the right to consult with counsel of your choice concerning this Dispute Resolution provision. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Dispute Resolution provision.
9. Protected Activity Not Prohibited
You should understand that, insofar as permitted by applicable law, nothing in these Terms will in any way limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in any investigation or proceeding (“Protected Activity”) that may be conducted by any federal, state or local government agency or commission (“Government Agencies”). You understand that in connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Beanstalk. Notwithstanding, in making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Beanstalk confidential information to any parties other than the Government Agencies.
Governing Law; Choice of Forum
The laws of the State of New York, excluding its conflicts of law rules, govern these Terms and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of these Terms. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in Manhattan County, New York and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
If You provide any feedback to Beanstalk concerning the functionality and performance of the Service (including identifying potential errors and improvements), You hereby assign to Beanstalk all right, title, and interest in and to such feedback, and Beanstalk is free to use such feedback without payment or restriction.
Entire Agreement; Variation
These Terms set forth the entire agreement between Beanstalk and you with respect to the Service. These Terms supersede and govern all previous oral and written communications regarding these matters, all of which are merged into these Terms. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter these Terms. These Terms may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought
If any provision of these Terms is held invalid, illegal or unenforceable, such provisions will be modified, or if not possible, severed, to reflect the fullest valid, legal and enforceable expression of the intent of the parties and the remainder of these Terms will not be affected thereby.
Relationship of Parties
Nothing herein will be deemed to create an employer-employee relationship between Beanstalk and you, nor any agency, joint venture or partnership relationship between the parties. Neither party will have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
No delay, omission, or failure to exercise any right or remedy provided herein will be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right.
Neither these Terms nor any of the rights granted to you herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express prior written permission of Beanstalk and any attempt to do so will be null and void. However, Beanstalk may assign or transfer these Terms at any time without your permission.
The provisions of these Terms relating to the rights of Beanstalk content providers are intended for the benefit of such content providers, and such content providers, as third-party beneficiaries, will be entitled to enforce such provisions in accordance with their terms, irrespective of the fact that they are not signatories to these Terms.
NOTICE REGARDING APPLE. You acknowledge that these Terms are between you and Beanstalk only, not with Apple, and Apple is not responsible for the Service or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If Beanstalk provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.