Womb Terms of Service
These Terms of Service are dated July 31, 2019.
These Terms of Service are a binding contract between Womb, Inc., an Oregon corporation seeking to provide the healthiest, happiest, and most affordable expecting and parenting experience (“us” or “we” or “Womb”) and each visitor to our website and to our social media sites accessible through the internet such as our pages at Facebook, Instagram, Pinterest, and Twitter (we refer to our website and all of our social media sites as the “Womb Sites”), and each subscriber to Services (defined below) (each subscriber is a “Client”). We refer to each visitor and Client as “you.” References to our “website” refer to all of the pages accessible at www.getwomb.com, whether accessible to visitors or only to Clients).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING WOMB SITES IN ANY WAY, INCLUDING USING THE SERVICES AND OTHER RESOURCES AVAILABLE OR ENABLED VIA OUR WEBSITE (COLLECTIVELY, WE REFER TO THESE AS THE “SERVICES”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING OUR WEBSITE MATERIALS, YOU ARE REPRESENTING THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH US, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE PERSONALLY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE OUR WEBSITE MATERIALS OR SERVICES.
PLEASE NOTE THAT AS SET FORTH BELOW IN MORE DETAIL, THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms of Service or will be presented to you for your acceptance when you sign up to use the Service subject to such Supplemental Terms. If these Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to such Service. These Terms of Service and any applicable Supplemental Terms are referred to as the “Terms.”
Services consist of Services that are provided by us (“Womb Services”) and Services (“Independent Services”) that are provided directly by independent health care providers. We refer to Womb Services and Independent Services collectively as “Services.” Services are only provided to Clients who have subscribed to Services. The mission of Womb is to develop and provide Services that enhance the pregnancy experience. Womb Sites provide further information about Services.
We know you are concerned about your privacy, so we have also developed a privacy policy (“Privacy Policy”) located at www.privacy.getwomb.com to explain how we collect, use, and disclose information from and/or about you when you use Services or you visit our website, and a Notice of Privacy Practices applicable to us when we receive protected health information as defined by the Health Insurance Portability and Accountability Act. The Privacy Policy and Notice of Privacy Practices are incorporated into and made a part of these Terms of Service.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY US AT ANY TIME. When changes are made, we will post a new copy of these Terms of Service at our website and any new Supplemental Terms will be made available at our website or from within, or through, the affected Service. We will also update the “Last Updated” date at the bottom of these Terms of Service. If we make any material changes, and you are then a Client, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new visitors to our website and new Clients, and will be effective thirty (30) days after the date we send an email to you in accordance with this paragraph. We may require you to provide consent to the updated Terms in a specified manner before further use of our website or Services is permitted. If you do not agree to any change after receiving a notice of such change, you agree to stop using our website and the Services. Your continued use of our website or Services constitutes your acceptance of such change. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
Use of Womb Sites. Womb Sites are intended for use by visitors to learn more about Womb. No other use of our Womb Sites or any information posted at Womb Sites is permitted. Womb Sites located at third party social media sites are also subject to the provisions applicable to such social media sites, and in the event of any direct conflict between such provisions and these Terms of Service, we will comply with the provisions that are more protective of or favorable to you.
Womb Services. Womb Services may include the use of software through our website, and services provided remotely through the internet or in person.
Independent Services. Independent Services may be provided remotely or in person. Independent Services are provided directly by the provider to you, and not through Womb. For Independent Services, we manage the subscription service, billing and collection, but we do not provide Independent Services. Independent Services are typically, but not always, subject to state and/or local licensing and permits, and the provider of Independent Services is solely responsible for obtaining and maintain all required licenses and permits. Any Service that we are prohibited from providing to you, but that the provider is permitted to provide to you, is an Independent Service provided by the provider, subject to these Terms.
Ambassadors. Ambassadors are volunteers who help Womb within the terms of our Ambassador Program. Ambassadors are not employees or agents of Womb, and have no authority to act on our behalf. Ambassadors are not paid, but are people with a passion to assist in our efforts to make the pregnancy experience better for everyone involved. Ambassadors are subject to the provisions of our Ambassador Program available at our website.
Use of the Services and other Womb Properties. Womb Sites and Womb Services, and the materials we post at, provide with or make available to you in connection with Womb Sites and Services (we refer to all of these items collectively as the “Womb Properties”) are protected by copyright, trademark and other laws throughout the world. Subject to the Terms, we grant you a limited license to use the Womb Properties only for your personal purposes in connection with your permitted use of the Womb Sites and Services, in the form provided to you. You are not permitted to copy or modify any Womb Properties except as provided in Supplemental Terms or as posted on our website.
Policies. Use of Womb Properties and other Services are subject to the policies we post at our website, and those policies are incorporated into and part of the Terms.
Updates. You understand that the Womb Properties are evolving. You acknowledge and agree that we may update the Womb Properties with or without notifying you. You may need to update third-party software from time to time in order to receive the Services or use other Womb Properties.
Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions, except to the extent set forth in Supplemental Terms: (a) you will not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Womb Properties; (b) you will not frame or utilize framing techniques to enclose any Womb trademark, logo, or other Womb Properties (including images, text, page layout or form); (c) you will not use any metatags or other “hidden text” using our name or trademarks; (d) you will not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Womb Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you will not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in our website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from our website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices, but not caches or archives of Womb Properties); (f) access Womb Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Womb Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you will not remove or destroy any copyright notices or other proprietary markings contained on or in Womb Properties. Any future release, update or other addition to Womb Properties is subject to the Terms. We and our suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Womb Properties terminates the licenses granted by us pursuant to the Terms.
Third-Party Materials. Through our website or Services, you may have access to materials that are hosted or provided by another party. We do not monitor such materials and you agree that access these materials at your own risk.
Registration.
Registering your Account. Certain features of our website and Services are provided only to Clients. A Client may be a pregnant woman or a family member or other person supporting a pregnant woman, or an Ambassador, or another person who is an intended user of features of our website or of Services.
Subscription Data. In subscribing for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services subscription form (the “Subscription Data”); and (2) maintain and promptly update your Subscription Data to keep it true, accurate, current and complete. You represent that you are (1) (A) at least eighteen (18) years old or (B) are under eighteen but have been legally emancipated and have the legal right to act as an adult and be responsible for your own affairs (and you are over thirteen (13) years old); (2) capable of forming a binding contract; (3) not a person barred from using Womb Properties under the laws of the United States, your place of residence or any other applicable jurisdiction, and (4) if you are providing information for a woman who is under eighteen (18) years old and not emancipated, you are the natural parent or lawfully appointed guardian of such child whose information you provide to us, you have the right to provide such information to us under the Terms, and you are registering for and using the Services in good faith for the purpose of assisting in such child’s pregnancy. You are responsible for all activities that occur under your account, and you are responsible for any use of your credit card or other payment instrument (e.g., PayPal) by any other party in connection with Services or our website. You will not share your account or password with anyone, and you agree to notify us immediately of any unauthorized use of your password or any other breach of security relating to your account. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of Womb Properties (or any portion thereof). You agree not to create an account using a false identity or information, or on behalf of someone other than yourself. You agree that you will not have more than one account at any given time.
Necessary Equipment and Software. You must provide all equipment, software and internet connection necessary to connect to our website and use Services.
Responsibility for Content
Types of Content. You acknowledge that all information and materials of any nature (“Content”) posted on our website, including Womb Properties, is the sole responsibility of the party providing such information and materials. This means that you are entirely responsible for all information and materials that you upload, post, e-mail, transmit or otherwise make available through our website for viewing by others, and other Clients and third parties and not us, are similarly entirely responsible for all Content they make available through our website for viewing or use by you or others. Your private communications in connection with Services provided to you are not Content, and you will decide what information of yours becomes Content available to others.
No Obligation to Pre-Screen Content. You acknowledge that we have no obligation to pre-screen any Content provided by any party other than us, although we reserve the right in our sole discretion to pre-screen, refuse or remove any Content at any time, with or without notice. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of your Content, including without limitation chat, text, or voice communications. In the event that we pre-screens, refuses or removes any Content, you acknowledge that we will do so for our benefit, not yours. Without limiting the foregoing, we have the right to remove any Content that violates the Terms or is otherwise objectionable.
Forums and Blogs. Our posts on our website forums and blogs are for informational purposes and are not intended to substitute for a doctor-patient or other healthcare professional-patient relationship nor do they constitute medical or healthcare advice of any kind. Any information in these posts should not be acted upon without consideration of primary source material and professional input from your healthcare or other professionals. Posts on our website forums and blogs are the opinion of and provided solely by the author, and are independent of Womb, and we do not endorse or verify the accuracy of such posts.
Ownership.
Womb Properties. Except with respect to Content posted by you or other Clients or third parties, you agree that we and our suppliers own all rights, title and interest in Womb Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Womb Properties. We license the use of our software, our website and other Womb Properties and do not sell them.
Trademarks. Trademarks and other related graphics, logos, service marks and trade names used on or in connection with Womb Properties are the trademarks of Womb or the third party indicated in connection with such use, and may not be used without permission.
Other Content. Except with respect to your Content, you agree that you have no right or title in or to any Content that appears on or in Womb Properties.
Your Content. We do not claim ownership of your Content. By posting any Content for use at any Womb Sites, you represent that you own that Content or have the right to post the Content, and in each case that you have the right to grant us the license in the next sentence.
License to Your Content. Subject to any applicable account settings that you select, you grant us the perpetual, worldwide, nonexclusive, royalty free right to use your Content in any way Womb determines, including making derivative works and authorizing third parties to use your Content, with or without attribution to you.
Username. Notwithstanding anything contained herein to the contrary, by submitting your Content, you hereby expressly permit us to identify you by your username (which may be a pseudonym) as the contributor of your Content, and you expressly permit us to republish in whole or in part your public submissions with your username in any publication or other material and in any form, media or technology now known or later developed.
Your Account. You acknowledge and agree that you have no ownership or other property interest in your account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to our benefit.
Feedback. You hereby grant to us a royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all ideas, suggestions, and proposals regarding our current and potential business that you provide to us in any form, written or verbal.
Conduct. As a condition of use, you agree not to use Womb Properties for any purpose that is prohibited by the Terms or by applicable law. You will not (and will not permit any third-party) either (a) to take any action or (b) make available any Content on or through Womb Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Womb; (vi) interferes with or attempts to interfere with the proper functioning of Womb Properties or uses Womb Properties in any way not expressly permitted by the Terms; or (vii) to attempt or engage in, any potentially harmful acts that are directed against Womb Properties, including but not limited to violating or attempting to violate any security features of Womb Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Womb Properties, introducing viruses, worms, or similar harmful code into Womb Properties, or interfering or attempting to interfere with use of Womb Properties by any other Client, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” Womb Properties.
Investigations. Although we do not generally monitor Client activity occurring in connection with Womb Properties, if we become aware of any possible violations by you of any provision of the Terms, we reserve the right to investigate such violations, and we may, at our sole discretion, immediately terminate your license to use Womb Properties, or change, alter or remove your Content, in whole or in part, without prior notice to you.
Third-Party Websites & Ads. Womb Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left Womb Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under our control. We are not responsible for any Third-Party Websites & Ads. We provide these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
General Purpose of Agreement: Sale of Service, not Software. We sell Womb Services and provide administration for the sale of Independent Services. All fees paid by you to us are for such Services and are not payment for the sale, license, or use of our software.
Payment. You agree to pay all fees and charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable as posted at our website. You must provide us with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing us with your credit card number or PayPal account and associated payment information, you agree that we are authorized to immediately invoice your account for all fees and charges due and payable to us hereunder and that no additional notice or consent is required. You agree to immediately notify us of any change in your billing address or the credit card or PayPal account used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting at our website or by e-mail delivery to you.
Service Fees. You are responsible for payment of the applicable fee for any Services (each, a “Service Fee”) at the time you elect to purchase such Services (each, a “Service Commencement Date”). Except as set forth in the Terms, all Service Fees are non-refundable. No contract will exist between you and us for Services until we accept your order by a confirmatory e-mail, text message, or other appropriate means of communication.
Taxes. Service Fees and other charges are net of any applicable Sales Tax. If we are required to pay Sales Tax, we will charge you the amount we are required to pay and you will pay such Sales Tax. If you are required to pay Sales Tax, you will timely pay such Sales Tax. “Sales Tax” means any sales or use tax, and any other tax measured by sales proceeds, that we are permitted to pass to its customers.
Withholding Taxes. You agree to make all payments to us free and clear of, and without reduction for, any withholding taxes.
Automatic Renewal. Certain subscriptions with us may continue indefinitely until terminated in accordance with the Terms. After your initial subscription period, and again after any subsequent subscription period, such subscription will automatically renew on the first day following the end of such period (each a “Renewal Commencement Date”) for an additional period of the same length (for example, another year), at our then current price for such subscription. You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date according to the applicable instructions. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize us to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if we do not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your account upon demand, and/or (ii) you agree that we may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following email: info@getwomb.com or by mail to the following address: Womb, Inc. 2135 N Skidmore Ter Portland OR 97217.
Indemnification. You agree to indemnify and hold Womb and its officers, employees, agents, contractors and licensors (collectively the “Womb Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your Content; (b) your use of, or inability to use, Womb Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Client; or (e) your violation of any applicable laws, rules or regulations. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. You agree that the provisions in this section will survive any termination of your account, the Terms, or your access to Womb
Properties.
Disclaimer of Warranties.
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF WOMB PROPERTIES IS AT YOUR SOLE RISK, AND WOMB PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE WOMB PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW:
THE WOMB PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) WOMB PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF WOMB PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF WOMB PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN WOMB PROPERTIES WILL BE CORRECTED.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH WOMB PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS WOMB PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. WE MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH WOMB PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FROM TIME TO TIME, WE MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH OUR CLIENTS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT OUR SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE WOMB PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE WOMB PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING INDEPENDENT PROVIDERS AND THE OPERATORS OF EXTERNAL SITES.
No Liability for Conduct of Clients. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER CLIENTS OF WOMB PROPERTIES. YOU UNDERSTAND THAT WE DO NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF CLIENTS.
No Practice of Medicine. WOMB DOES NOT PRACTICE MEDICINE AND DOES NOT PROVIDE ANY SERVICES THAT IT IS PROHIBITED FROM PERFORMING ACCORDING TO APPLICABLE LAW. INDEPENDENT PROVIDERS ARE SOLELY RESPONSIBLE FOR COMPLYING WITH APPLICABLE LAW AND FOR THE SERVICES THEY PROVIDE. WOMB SERVICES ARE NOT A SUBSTITUTE FOR MEDICAL TREATMENT, AND IT IS YOUR RESPONSIBILITY TO MAINTAIN TREATMENT BY YOUR PHYSICIANS AND CONFIRM WITH THEM THAT YOUR USE OF THE SERVICES IS APPROPRIATE IN YOUR SPECIFIC CIRCUMSTANCE. DO NOT IGNORE OR DELAY OBTAINING PROFESSIONAL MEDICAL ADVICE BECAUSE OF INFORMATION OR SERVICES ACCESSED THROUGH WOMB PROPERTIES. CALL 911 OR YOUR DOCTOR FOR ALL MEDICAL EMERGENCIES.
Limitation of Liability. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW:
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL THE WOMB PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH WOMB PROPERTIES, WHETHER OR NOT ANY WOMB PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR OTHER WOMB PROPERTIES, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER CLIENTS OR INDEPENDENT SERVICE PROVIDERS, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE WOMB PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF THE AMOUNT RECEIVED BY WOMB AS A RESULT OF YOUR USE OF WOMB PROPERTIES IN THE TWELVE MONTHS PRECEDING THE DATE YOUR CAUSE OF ACTION FIRST ACCRUES, OR FIVE HUNDRED DOLLARS ($500).
Content. THE WOMB PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND CLIENT CONTENT), CLIENT COMMUNICATIONS OR PERSONALIZATION SETTINGS.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WOMB AND YOU.
Procedure for Making Claims of Copyright Infringement. It is our policy to terminate membership privileges of any Client who repeatedly infringes copyright upon prompt notification to us by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Womb Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Womb Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Womb’s Copyright Agent for notice of claims of copyright infringement is as follows: Womb, Inc. Copyright Agent by email to info@getwomb.com or by mail to: 2135 N Skidmore Ter Portland OR 97217.
Term and Termination.
Term. The Terms commence on the date when you first visit our website, use Services or otherwise accept them (as described in the preamble above) and remain in full force and effect while you use Womb Properties, unless terminated earlier in accordance with the Terms.
Termination of Services by Womb. If timely payment cannot be charged to your Payment Provider for any reason, if you have breached any provision of the Terms, if we are required to do so by law (e.g., where the provision of our website, or the Services is, or becomes, unlawful), or for any other reason we determine in our discretion, we have the right to suspend or terminate the availability of our Website or the provision of any Services; provided that if we terminate Services without cause and you have paid for Services in advance, we will refund to you the amount you paid in advance for such Services.
Termination by You. You may terminate your account at any time according to the provisions available after you log in to your account. You may terminate Services at any time by providing notice of termination to us through your account or by email to support@getwomb.com. You will not receive a refund of any amounts you have previously paid if you terminate your account or any Services.
Effect of Termination. Upon termination, you will not have the right to receive any further Services. However, we will maintain the information in your account, including any health information, until the earlier of your written request for us to delete the information, the date we are required by law to delete the information, and seven years from your termination date (or such longer time as may be required by applicable law), except that we will immediately delete any credit card information that may be stored in your account. While we maintain your information in accordance with this Section, you may request a copy of such information by sending a request by certified mail, return receipt requested with a copy of your driver’s license or passport, and we will establish a secure electronic location where you can retrieve such information and we will send you the required identification and password to access such information. Termination of your account also includes deletion of your password. Termination does not delete the Content you have previously provided to us, which remains available for our use. We will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content, which we may do in our discretion. All provisions of the Terms which by their nature should survive, will survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
Remedies.
Violations. If we become aware of any possible violation by you of the Terms, we reserve the right to investigate such violations. If, as a result of the investigation, we believe that illegal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We are entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Womb Properties, including your Content, in our possession in connection with your use of Womb Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that your Content violates the rights of third parties; (4) respond to your requests for customer service; or (5) protect the rights, property or personal safety of Womb, Clients or the public, and all enforcement or other government officials, as we in our sole discretion believes to be necessary or appropriate.
Breach. In the event that we determine, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Womb Properties, we reserve the right to warn you via e-mail (to any e-mail address you have provided to us) that you have violated the Terms, delete any of your Content, discontinue your registration(s) with any of Womb Properties, including the Services, discontinue your account or your subscription to any Services; and pursue any other action which we deem appropriate. Once we terminate your account, you agree not to reapply for a new account.
International Clients. Our website and certain Services can be accessed from countries around the world and may contain references to Womb Properties and Content that are not available in your country. These references do not imply that we intend to provide such Womb Properties or Content in your country. Womb Properties are controlled and offered by us from our facilities in the United States of America. We make no representations that Womb Properties are appropriate or available for use in other locations, or comply with laws applicable to businesses located in locations other than the United States, and we disclaim any obligation to comply with any such laws. Those who access or use Womb Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
General Provisions.
Electronic Communications. The communications between you and Womb use electronic means, whether you visit Womb Properties or send us e-mails, or whether we post notices on Womb Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Release. You hereby release the Womb Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Clients, Independent Providers, or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Womb Properties. 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 favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. We will not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Compliance. If you believe that we have not adhered to the Terms, please contact us by emailing us at info@getwomb.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
Limitations Period. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, WOMB PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OR IS PERMANENTLY BARRED.
Dispute Resolution. Except as prohibited by applicable law:
Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration will be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party will not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (2) all arbitration proceedings will be held in English; (3) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party will bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and will pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from Oregon law, including the laws governing what can legally be sold, bought, exported, offered or imported. You will always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of Womb Properties.
Any other dispute (including whether the claims asserted are arbitrable) will be referred to and finally determined by binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to 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 Womb must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR WOMB MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) 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; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we 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; (iv) we reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator will honor claims of privilege and privacy recognized at law; (vi) the arbitration will 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 the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) 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 then in such instance , the fees and costs awarded will be determined by applicable law.
The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also will be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award will be final and binding upon the parties without appeal or review except as permitted by Oregon law or United States Federal law.
Notwithstanding the foregoing, either you or Womb 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 will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in Portland, Oregon. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Portland, Oregon, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Portland, Oregon for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.
With the exception of (d)(i) and (ii) above (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 will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor us will be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in Portland, Oregon. By using Womb Properties in any manner, you agree to the above arbitration provision.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Oregon consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
Notice. Where we require that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to us at the following address: Womb, Inc., 2135 N Skidmore Ter Portland OR 97217. Such notice will be deemed given when received by us by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Export Control. You may not use, export, import, or transfer Womb Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Womb Properties, and any other applicable laws. In particular, but without limitation, Womb Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Womb Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Womb Properties for any purpose prohibited by U.S. law. You acknowledge and agree that products, services or technology provided by us are subject to the export control laws and regulations of the United States. You will comply with these laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer our products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
International Provisions. The following provisions will apply only if you are located in the countries listed below (understanding that our Website and Services are provided from the United States and we disclaim any obligation to comply with laws other than those of the United States).
United Kingdom. A third-party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third-party which exists or is available apart from that Act.
Germany. Notwithstanding anything to the contrary in Section 12, we are not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
