Effective Date: November 23, 2021
IMPORTANT – PLEASE READ CAREFULLY: THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF OUR SERVICES. BY DOWNLOADING AND INSTALLING OUR MOBILE APP, OR BY USING OUR SERVICES, YOU ARE ACCEPTING THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE WEBSITE OR THE SERVICES. IMPORTANT: THESE TERMS CONTAIN AN ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION, AND ALSO CONTAINS A CLASS ACTION AND JURY TRIAL RIGHT WAIVER.
2. Changes to the Terms
We periodically update and improve our Mobile App and Services, and we may at times add, change, or remove features. These Terms may also need to change. The current version of these Terms will be posted on our Website at www.borrowlocal.com/terms and will be effective immediately upon posting. We will also present updated Terms on the Mobile App and require that you consent to them before being able to continue. By continuing to use the Mobile App or Services following any such change, you accept and agree to be bound by such modified Terms.If you do not agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all the changes.
4. Registration; Account Ownership
Our Mobile App and Services are intended for access and use by individuals who are at least 18 years old, and by agreeing to the Terms you represent (i) that you are at least 18 years old and reside in a state, region, or country in which the Mobile App and Services may legally be provided, (ii) you are the person whose name and other information have been provided for the account that you have created or are creating, (iii) that your account has not previously been suspended or terminated, and (iv) that your registration and your use of the Services is in compliance with any and all applicable laws and regulations.Account Creation and Verification. To use the Mobile App and Services, you will need to create an account with us. All of the information that you supply to us in creating your user account must be accurate. Individuals who seek to borrow items are called “Borrowers”. Individuals who seek to lend items are called “Lenders”. Both Borrowers and Lenders need to create a user account before they can use the Services. We may request certain information to verify your identity (e.g., driver’s license) and we may use a third-party service for such verification. By submitting the identification information, we request, you are consenting to allow us to perform a background check on you.
You are responsible for maintaining the confidentiality of your account and password. We reserve the right to invalidate your password and require you to change it if we believe it has become unsecure. We may reject any username that violates these Terms, including any username that uses another person’s identity or that violates our community and content guidelines. We may use the email you provide to us in your user account profile to email you with service messages and updates. By becoming a User, you are consenting to the use and receipt of these communications.
6. Grant of Access
Subject to your continued compliance with these Terms, we grant you a personal, limited, non-transferable, non-exclusive right to access and use our Services as outlined in these Terms, provided that (i) your use of the Services as permitted hereunder is solely for your personal, non-commercial use; (ii) you will use the Services only for purposes that are permitted by these Terms; (iii) you will use the Mobile App and the Services per all applicable laws and regulations; and, (iv) you will otherwise comply in full with these Terms.
7. Limited License to the Mobile App
Subject to these Terms, we grant you a personal, limited, nonexclusive, and non-transferable license to (i) download, install and use the Mobile App for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you, and (ii) access and use on such mobile device the Services made available in or otherwise accessible through the Mobile App, strictly per these Terms.
We shall use commercially reasonable efforts to provide continuous access to the Services via the Mobile App. We do not guarantee that the Services will be always accessible. The Services may be unavailable during maintenance periods or an emergency. In addition to normal maintenance, there may be events that will make the Service inaccessible for a limited amount of time due to unforeseen circumstances. We have the right to refuse to provide access to the Services.Force Majeure Events. We shall not be liable to you or any other person, firm or entity for any unavailability of the Services if such failure is due to any cause beyond our reasonable control, including, but not limited to, (i) labor disputes, strikes, or lockouts (but excluding nonunion labor shortage or disputes), or labor unavailability or workplace closure as required or recommended by government or agency due to pandemic, epidemic, or other widespread health emergency (e.g., SARS, coronavirus, etc.); (ii) riots, war, acts of terrorism, or other civil disturbance; (iii) fire, flood, earthquake, tornado, hurricane, snow, ice, lightning, or other natural disasters, elements of nature or acts of God, (iv) outages, cable cuts, power crisis shortages, infrastructure outages or failures, internet failures, interruption or failure of telecommunications carriers or digital transmission links, network congestion, computer equipment failures, telecommunication equipment or other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, all of the foregoing in this Subsection (iv) being of or due to third party providers or utility service providers; (v) acts of computer, system, or network sabotage or file lockup (e.g., ransomware attack), DDOS or other network attacks, intrusion, or other failures; (vi) any law, order, regulation, direction, action or request of the United States, state or local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of such instrumentality, or of any civil or military authority, or national emergencies, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown; or, (vii) national or regional shortage of adequate power or telecommunications or transportation.We can subcontract services or use service providers, such as, but not limited to, outside hosting and storage service providers, which may be inside or outside the United States.
9. Rental; Fees and Payment
Security Deposits; Rental Fee. Borrowers must make a security deposit into their user account before they can use the Services, or, Borrowers can pay for each item on a purchase-by-purchase basis. Deposits are made via credit card, PayPal, or other payment methods made available through the Mobile App (for which we use a third-party payment processor). Borrowers rent items that Lenders make available for a fee based on the number of days the item is rented (“Rental” or its variants). The price for the Rental of each item will be stated on the page with that item. Borrowers are responsible for returning Rented items on time and without damage.
Rental Period. Items are rented daily unless stated otherwise on an item’s page. The maximum rental duration is 30 days. For longer rentals, the Borrower must create another rental, and the Lender may require the item to be initially returned for inspection before the next rental. If a Borrower fails to timely return a Rented item, for each day returned late the Rental fee shall continue to be due plus an additional 10% late fee per day.
Fees. We may retain up to 10% of the rental amount paid by the Borrower as our fee.
10. Item Pickup and Return
The Borrower may request to rent the item from the Lender for a specified time, including an agreed pickup and return time. Unless otherwise agreed by the Lender and the Borrower in writing, all rented items are to be picked up and returned during the rental period specified on the website. Once reaching an agreement, the Borrower may then pick up the item from the Lender at the scheduled time. We may provide the ability for a delivery fee for delivery within a certain radius to be added to the total rental amount.
11. Prohibited Items
The following categories of items may not be listed for rental and any attempt to do so is a violation of these Terms and may result in a user being suspended or banned:
• weapons of any nature
• bows, including hunting bows and crossbows
• fireworks or devices involving explosives
• toxic or hazardous substances
• illegal drugs, medications, or alcohol
• items prohibited by applicable law
12. Return Policy
The borrower is responsible for inspecting items upon pickup. If a borrowed item does not work or does not function as expressly described in the advertised item’s description, the following return/refund policy shall apply. If Borrower cancels the Rental outside of 24 hours or when Borrower picking up the Item find that it is defective, no Rental fee will be charged (or, if charged, it will be refunded or credited). If canceled within 24 hours of the Borrower picking up the item or the item is found to be defective after accepting the item, 50% of the Rental amount, up to 2 days, will be charged to Borrower.
13. Damage/Unreturned Items Policy
Damaged Items. The Lender must keep the item maintained within the normal reasonable acceptable condition, including any routine maintenance suggested in the user’s/owner’s manual for that item. If requested by the Borrower, the Lender must demonstrate to the Borrower that the item is in acceptable working condition. We recommend that the Lender and Borrower each take photographs of the item before being lent and after return to have a record. If a Rented item is returned in damaged condition, the Lender must use our online form (available at borrowlocal.com/claims) to submit photographs and a claim within 3 days of the end of the rental period. We will review the claim and we will make the final decision on the claim. If the item is found to have been damaged during use by the Borrower, the Borrower may be liable for up to 50% of the assessed fair market value of the item, and, if the damage is found to have been done maliciously or purposefully by Borrower, Borrower will be responsible for the full cost of replacing the item with a comparable new item.Unreturned Items. If a Rented Item is not returned by a Borrower, we will attempt to charge the Borrower’s credit card on file for the fair market value of the item, and remit the amount collected to the Lender. If there is no valid credit card on file (or if the card is unable to be charged for the fair market value amount), the Lender may file a police report. We will cooperate with law enforcement regarding this police report and provide information as requested or as legally required. Borrower agrees to pay our costs (including, but not limited to, administrative time and reasonable attorneys’ fees and costs) related to unreturned items.If a Lender claims and provides evidence that a Borrower has damaged the Rented item (“Damage Claim”), the Lender can seek payment from Borrower by contacting us. If a Lender escalates a Damage Claim to us, Borrower will be allowed to respond. If Borrower agrees to pay the Lender, or we determine in our sole discretion that Borrower is responsible for the Damage Claim, we will collect any such sums from the Borrower at issue and/or against the security deposit (if applicable) required to cover the Damage Claim according to the payment terms. We also reserve the right to otherwise collect payment from Borrower and pursue any remedies available to us in this regard in situations in which Borrower is responsible for a Damage Claim.You, as a Borrower, or a Lender, agree to cooperate with and assist us in good faith and to provide us with such information and take such actions as may be reasonably requested by us, in connection with any Damage Claims or other complaints or claims made by a Lender. You, as a Borrower, or a Lender, shall, upon our reasonable request and at no cost to either Borrower or Lender, participate in mediation or a similar resolution process with another Borrower or Lender, which process will be conducted by us or a third party selected by us (e.g., a mediation service) or our insurer, concerning losses for which a Borrower or Lender is requesting payment from us.Claims Against Lenders. If you are a Borrower, you understand and agree that we may make a claim under your homeowner’s, renters, or other insurance policy related to any damage or loss that you may have caused, or been responsible for, to a Rented item. You agree to cooperate with and assist Company in good faith, and to provide us with such information as may be reasonably requested by us, to make a claim under your homeowner’s, renters, or other insurance policy, including, but not limited to, executing documents, and taking such further acts as we may reasonably request to assist us in accomplishing the foregoing.
When lending, picking up, or returning a Rented item, Lenders, as well as Borrowers, should have someone with them.You should rent to or borrow only from fully verified persons. Verified Lenders and Borrowers will have a badge displayed on their profile image, as well as have text on their profile page indicating the person is verified. Don’t be afraid to ask for identification. Take a photo of the person and the item for your records. We maintain IDs of verified users, but we cannot confirm that the ID matches the Borrower picking up your item. If lending an item of high value, have the delivery location be a public one that protects both persons, e.g., outside a police or fire station. When in doubt, do not lend items. One of our objectives is to build a network of your neighbors down the street and not necessarily strangers across town.
15. Restrictions on Use of the Mobile App
Use of the Mobile App and any of your information or content collected, transmitted, or stored in connection with the Mobile App is limited to the functionality of the Mobile App. In no event may the Mobile App be used in a manner that (a) harasses, abuses, threatens, defames or otherwise infringes or violates the rights of others; (b) is unlawful, fraudulent or deceptive; (c) uses technology or other means to access our proprietary information that is not authorized by us; (d) uses or launches any automated system to access our Website or computer systems; (e) attempts to introduce viruses, Trojans, worms, malware, or any other malicious computer code that interrupts, destroys or limits the functionality of any computer software, hardware or telecommunications equipment; (f) attempts to gain unauthorized access to our or our service provider’s computer network or user accounts; (g) encourages conduct that would constitute a criminal offense, or would give rise to civil liability; (h) “stalks” or otherwise harasses any person; (i) uses 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 Mobile App or its contents; (j) asks users or uses users to conceal the identity, source, or destination of any illegally gained money or products; (k) collect usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Mobile App; (l) forges headers or otherwise manipulates identifiers in order to disguise the origin of any information transmitted to or through the Mobile App (either directly or indirectly through use of third party software); (m) “frames” or “mirrors” any part of the Mobile App, without our prior written authorization; (n) uses meta tags or code or other devices containing any reference to us or the Mobile App (or any of our trademarks, trade names, service marks, logos, or slogans) to direct any person to any other website for any purpose; or, (o) otherwise violates these Terms. we reserve the right, in its sole discretion, to terminate these Terms, request that you remove the Mobile App from your Mobile Device for any reason, including, but not limited to, our reasonable conclusion that you have violated these Terms. We may terminate or suspend your account at any time without notice if we believe that you have breached these Terms, or for any other reason, with or without cause, at our sole discretion. Upon such termination or suspension, you will not be entitled to any refund of unused fees for in-app purchases. We are not required to disclose and may be prohibited by law from disclosing, the reason for the termination or suspension of your account. After your account is terminated for any reason, all terms of these Terms survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied. You agree to not perform any security test activities related to the Mobile App or the Services or associated infrastructure without our prior written consent, including, but not limited to: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing.Our Services are intended only for individuals who intend to use the items Rented for their personal use. You may not use our Services to operate a business for or related to renting items.
16. User Feedback; Third-Party Social Media Postings
By submitting any ideas or suggestions to us (through the Mobile App, social media sites, or other digital platforms, or Google, or other review sites, or other means) related to improvements to the Mobile App or Services (collectively, “Feedback”) you agree that such Feedback shall be deemed, and shall remain our property, and you agree to and do hereby assign to us all your right, title, and interest in and to all Feedback (including without limitation intellectual property rights and moral rights) without compensation or further notice to you. We shall be entitled to use the Feedback without restriction for any purpose whatsoever, commercial or otherwise, without compensation or further notice to you. None of the Feedback shall be subject to any obligation of confidentiality on our part and we shall not be liable for any use or disclosure of any Feedback.By posting or submitting for posting User Content to our Facebook, YouTube, Instagram, or other social media pages or platforms, or on other websites, e.g., Facebook, Google, Yelp, Trip Advisor, etc., you agree to and do hereby grant us and our licensors, affiliates, partners, successors and assigns, a nonexclusive, perpetual, irrevocable, worldwide, sublicensable, transferrable, royalty-free right and license to use, store, display, publish, transmit, transfer, distribute, reproduce, rearrange, edit, modify, aggregate, summarize, translate, create derivative works of and publicly perform the User Content that you post or otherwise submit to us for any purpose, in any form, medium, or technology now known or later developed.
17. User Content
The Mobile App may permit the posting or submission for posting of content, including, but not limited to, reviews, comments, or other textual content, files, images, photographs, videos, animation, sounds, musical works, data, or other materials and content by you (collectively, “User Content”). We do not endorse or approve any User Content submitted or posted. We respect the intellectual property rights of others. You must have the legal right to submit to us or, where permitted, post any User Content to the Mobile App. You are solely responsible for any User Content that you create, transmit, or display while using the Mobile App. All User Content you post or submit for posting to the Mobile App is deemed non-confidential.You agree to not submit, upload or post any User Content that infringes or may infringe the copyright, trademark, or other intellectual property rights of a third party nor may you submit User Content that violates any third party’s right of privacy or right of publicity. You may submit only User Content permitted by the owner or by law.You agree to not engage or permit others to have access to your login credentials to engage, in the practices of “screen scraping,” “database scraping,” or any other activity to obtain lists of users or other information or content.You also agree to take sole responsibility for any royalties, fees, or other monies owed to any person or entity by reason of any User Content you post or transmit.
User Content Submission and Posting Guidelines
You are responsible for all User Content that you submit to us. You may not submit or post User Content that:
• Is not your original creation or that you do not have permission to use (keep in mind that just because something on the internet does not have a copyright notice on it doesn’t mean you can use it without permission);
• Infringes the copyright, trademark, patent right, or other proprietary rights of any person or that is used without the permission of the owner;
• You know to be inaccurate;
• Is pornographic, sexually explicit, or obscene;
• Exploits children or minors;
• Violates the rights of privacy or publicity of any person;
• Is harassing, libelous, slanderous, or defamatory;
• Contains any personally identifying information about any person without their consent or about any person who is a minor;
• May be deemed generally offensive to the Website community, including blatant expressions of bigotry, prejudice, racism, hatred, profanity, or religious or political radicalism;
• Includes advertisements, promotions, solicitations, spam, or offers to sell any goods or services for any commercial purpose;
• Is off-topic;
• Is intended to provide professional advice, including but not limited to, the provision of medical treatment, or legal, financial, or investment advice;
• Violates any local, state, federal, and/or international laws or regulations;
• Promotes or provides instructional information about illegal or illicit activities;
• Contains software viruses or any other computer code, files, or programs designed to destroy, interrupt, or otherwise limit the functionality of any computer software, computer hardware, or other equipment; or,
• Is intended to overwhelm, cause technical disruptions of, or denial of service to the Website.
Removal of User Content
We reserve the right (but have no obligation) to remove, block, edit, move, or disable User Content that is objectionable to us for any reason, or after a certain period. The decision to remove User Content at any time is at our sole and final discretion. To the maximum extent permitted by applicable law, we do not assume any responsibility or liability for User Content or for any failure to or delay in removing User Content or other Content. You are solely responsible for your User Content and may be held liable for User Content that you post.
If you believe that any content on the Website violates these Terms or your intellectual property rights, you can report such violation to us per the Digital Millennium Copyright Act (17 U.S.C. §512, “DMCA”). In the case of an alleged infringement, please provide the following information:
• A description of the copyrighted work or other intellectual property that you claim has been infringed;
• A description of where the material that you claim is infringing is located on the Website (including the exact URL);
• An address, a telephone number, and an email address where we can contact you;
• A statement that you have a good faith belief that the use is not authorized by the copyright or other intellectual property rights owner, by its agent, or by law;
• A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the owner’s behalf; and,
• Your electronic or physical signature, or that of the person authorized to act on behalf of the owner of the copyright or other right being infringed.We may request additional information before we remove allegedly infringing material. You may report a copyright violation by providing the above information to the designated agent listed below.
Borrow Local, Inc.
Address on request, Raleigh, North Carolina 27615
Attn: Customer Support
We have the right to terminate the user account of any user who repeatedly submits content that violates our intellectual property policies. A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Website more than twice.
18. Suspension of Service
We may suspend your account and access to the Service, with or without notice, if you violate any provision of these Terms.
19. Term; Termination
Term. These Terms shall commence upon your use of the Website or the Service and shall continue until terminated.Termination.
i. We reserve the right to deactivate any accounts which have not been active for at least six (6) months. We reserve the right to delete data in deactivated accounts.
ii. We reserve the right to stop providing the Mobile App or the Service to you or access the Website at any time for any reason and without prior notice.
20. Intellectual Property
We and our licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Mobile App, including all copyrights, trademarks, other intellectual property rights, and all other rights therein or relating thereto, except as expressly granted to you in these Terms. You acknowledge and agree that the Mobile App is provided under license, and not sold, to you. You do not acquire any ownership interest in the Mobile App under these Terms, or any other rights thereto other than to use the Software per the license granted, and subject to all terms, conditions, and restrictions, under these Terms. All rights not specifically granted herein are reserved by us.
THE MOBILE APP AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, WHETHER STATUTORY OR IMPLIED OTHER THAN AS EXPRESSLY STATED HEREIN. TO THE FULLEST EXTENT PERMISSIBLE ACCORDING TO APPLICABLE LAW, WE DISCLAIM ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING, OR COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE MOBILE APP OR RELATED TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MOBILE APP OR RELATED TO THE SERVICES OR THE SERVER THAT ENABLES THE SERVICES TO BE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE CONTENT ON THE WEBSITE IN TERMS OF ITS COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY, OR OTHERWISE. DEPENDING ON THE STATE IN WHICH YOU RESIDE SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE US FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
22. Limitation of Liability
You agree that we are not responsible, and shall have no liability for, any damages or injuries arising out of or due to:
• Failure of any Rented item to work as advertised;
• Use of a Rented item used by a Borrower or any third party;
• Damage to or caused by any Rented item;
• Failure of a Borrower to return or timely return a Rented item;
• Any error, inaccuracy, omission, or misrepresentation of an item’s quality, functions, features, condition, or the like; or,
• Any disputes between Borrowers and Lenders.
YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF THE MOBILE APP OR SERVICES) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE MOBILE APP OR SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF OUR OR OUR SERVICE PROVIDERS’ SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY US OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY THIRD PARTY’S USE OF THE MOBILE APP OR SERVICES, ANY LOSS THAT MAY OCCUR DUE TO ANY LOSS OF USE OF THE MOBILE APP OR THE SERVICES, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICES, THE NON-DELIVERY OR MISDELIVERY OF DATA BETWEEN YOU AND US, EVENTS BEYOND OUR REASONABLE CONTROL, THE NON-RECOGNITION OF OUR HOSTING SERVERS, THE PROTECTION OR PRIVACY OF ELECTRONIC MAIL OR OTHER INFORMATION TRANSFERRED THROUGH THE INTERNET OR ANY OTHER NETWORK PROVIDER OR SERVICE ITS CUSTOMERS MAY UTILIZE, OR THE APPLICATION OF ANY POLICY SET FORTH HEREIN.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS ARISING OUT OF OR RELATING TO THE MOBILE APP OR SERVICE, OR ANY USER CONTENT IS TO STOP USING THE MOBILE APP AND THE SERVICES AND TO CANCEL YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT WE, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON OR COMPANY REGARDING CONDUCT, COMMUNICATION, OR USER CONTENT. IN NO CASE SHALL THE TOTAL AGGREGATE LIABILITY OF US, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS TO YOU EXCEED ONE HUNDRED DOLLARS (US$100).
Exceptions by Some States on Non-Allowance of Exclusion.
i. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR OTHER WARRANTY LIMITATIONS OR OTHER RESTRICTIONS, IN WHICH CASE THE ABOVE EXCLUSIONS OR RESTRICTIONS DO NOT APPLY TO YOU, BUT ONLY TO THE EXTENT REQUIRED BY APPLICABLE LAW.
ii. NOTICE TO CALIFORNIA RESIDENTS: IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
iii. NOTICE TO NEW JERSEY RESIDENTS: IF YOU ARE A VISITOR TO THE WEBSITE FROM NEW JERSEY, CERTAIN LIMITATIONS IN THESE TERMS ARE INAPPLICABLE OR UNENFORCEABLE WITHIN NEW JERSEY. NOTWITHSTANDING ANYTHING STATED TO THE CONTRARY IN THESE TERMS, WITHIN NEW JERSEY: (A) WE DO NOT LIMIT OUR LIABILITY BASED ON OUR NEGLIGENCE, GROSS NEGLIGENCE, OR INTENTIONAL CONDUCT; (B) WE DO NOT LIMIT OUR LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE THAT OCCUR ON OUR PROPERTY; (C) THERE IS NO WAIVER OF YOUR RIGHT TO ATTORNEYS’ FEES. THESE PROVISIONS ARE ENFORCEABLE ONLY TO THE FULL EXTENT PERMITTED BY NEW JERSEY LAW. THE PROVISIONS OF THIS SUBSECTION ONLY APPLY TO GOODS AND SERVICES USED FOR PERSONAL, FAMILY, AND HOUSEHOLD PURPOSES.
By utilizing the Mobile App or the Services you agree to indemnify and hold us and our officers, directors, employees, agents, and affiliates harmless from and against any and all liability, losses, costs, and expenses (including attorneys’ fees) incurred by us through your use of the Mobile App or the Services or your posting or submission of User Content (if permitted) in violation of these Terms (including, but not limited to, negligent or wrongful conduct, infringement of any third party’s intellectual property, confidentiality, privacy or publicity rights). 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. This section shall survive any termination of the Terms.
24. Cooperation with Law Enforcement and Government Agencies; Required Disclosures
You acknowledge that we have the right to investigate and prosecute violations of these Terms, including intellectual property, publicity and privacy rights infringement, and Website security issues, to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Mobile App or the Services, but we have the right to do so to provide the Services, to ensure your compliance with these Terms or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental or regulatory body.You understand and agree that we may disclose your Personal Information if required to do so by law, court order, legal process, or subpoena, including to respond to any government or regulatory request (after, if permitted, giving reasonable notice to you and using commercially reasonable efforts to provide you with the opportunity to seek a protective order or the equivalent (at your expense), or if we believe that such action is necessary to (a) conform to the law, comply with legal process served on us or our affiliates or partners, or investigate, prevent, or take action regarding suspected or actual illegal activities; (b) to enforce these Terms (including for billing and collection purposes), take precautions against liability, to investigate and defend ourselves against any third-party claims or allegations, to assist government enforcement agencies, or to protect the security or integrity of our Website; or, (c) to exercise or protect the rights, property, or the safety of us, our users or others.
If any country, federal, provincial, regional, state, or local entity with taxing authority over the Services imposes a tax, duty, or fee directly on the Services provided to you by us under the Terms (excluding any income, business, and occupation, capital gain, death or inheritance, or other indirect taxes), then we may pass the direct amount of such tax on to you, and you shall promptly pay that tax.
26. Disputes; Resolution
Time Limitation. Any claim or action against us must be brought within twelve (12) months of the cause arising, otherwise, such claim or action is permanently barred.
27. MANDATORY BINDING ARBITRATION
i. Other than for the grounds outlined in Section 25.C (labeled “Exceptions to Agreement to Arbitrate”), in the event of any dispute, claim, question, or disagreement arising from or relating to the Terms or the breach thereof or the access or use of the Mobile App or our Services, the parties hereto shall use reasonable efforts to settle the dispute, claim, question, or disagreement. To this effect, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within thirty (30) days, then, upon notice by either party to the other, such dispute, claim, question or disagreement shall be resolved by binding arbitration in Raleigh, North Carolina, per the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), subject to the limitations of this Section. This agreement to arbitrate will be specifically enforceable under the prevailing law of any court having jurisdiction. Notice of a demand for arbitration shall be filed in writing with the other party hereto and with the AAA. The demand for arbitration shall be made within a reasonable time after the dispute has arisen, and in no event shall any such demand be made after the date when the institution of legal or equitable proceedings based on such dispute would be barred by the applicable statute of limitations. The parties agree that one (1) arbitrator shall arbitrate the dispute. The arbitrator shall be selected by the joint agreement of the parties, but if they do not so agree within twenty (20) days after the date of the notice of a demand for arbitration referred to above, the selection shall be made according to the Commercial Arbitration Rules of the AAA from the panels of business arbitrators maintained by the AAA. The decision of the arbitrator shall be made in writing and shall be final. Judgment may be entered upon it in any court having jurisdiction thereof, and the decision shall not be subject to vacation, modification, or appeal, except to the extent permitted by Sections 10 and 11 of the Federal Arbitration Act, the terms of which Sections the parties agree shall apply. The expenses of arbitration, including and the fees and expenses of the arbitrator and the AAA, shall be shared equally by the parties.
ii. The arbitrator will have no authority to award attorneys’ fees, punitive damages, or any other monetary relief not measured by the prevailing party’s actual damages and each party irrevocably waives any claim thereto. The award may include equitable relief. The arbitrator will not make any ruling, finding, or award that does not otherwise conform to the Terms. The arbitrator may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition.iii. The parties agree to treat all aspects of the arbitration as confidential, as provided in the AAA Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Further, judgment on the arbitrator's award may be entered in any court having jurisdiction.Exceptions to Agreement to Arbitrate. You and we agree that we may bypass arbitration and go to court to resolve disputes relating to (a) your or our intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights, or patents), (b) your violation of the restrictions on use, or (c) your violation of our User Content Posting Guidelines.
iii. The parties agree to treat all aspects of the arbitration as confidential, as provided in the AAA Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Further, judgment on the arbitrator's award may be entered in any court having jurisdiction.Exceptions to Agreement to Arbitrate. You and we agree that we may bypass arbitration and go to court to resolve disputes relating to (a) your or our intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights, or patents), (b) your violation of the restrictions on use, or (c) your violation of our User Content Posting Guidelines.26. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. You agree that neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims concerning any disputes subject to arbitration under these Terms or any disputes between the parties. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
28. Waiver of Jury Trial
Each party irrevocably and unconditionally waives any right we or you may have to a trial by jury for any legal action arising out of or relating to these Terms or the transactions contemplated hereby.
29. Location of Operation
Our Website and application is operated in the United States of America, and we make no representation that the content provided is applicable or appropriate for use in other locations. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your initiative and are responsible for compliance with local laws. Your use of the Website does not subject us to judicial process in or to the jurisdiction of courts or other tribunals in your jurisdiction or location.
By creating a User account or giving us any contact or other information, you agree to and do hereby consent to receive mail and electronic communications (email, text/SMS, and by telephone) from us and/or by posting the communications on the Website (e.g., by posting notices on your account profile page) concerning information and/or our Services (collectively, “Communications”). For Users with an account, Communications may be those that we are required to send to you by law (e.g., data security incident notifications) concerning us, your account or information, the Website, or the Services (“Required Communications”). The Communications may also be those that we send to you for other reasons. You may change the email or mobile phone number on file for your account by visiting your account profile page or by contacting us. You may opt-out of receiving all Communications, other than Required Communications, via email by sending a notice to us that identifies your full name, username, and email address; however, you will not receive any further electronic notices from us (other than Required Communications), which notices may include important notices or announcements.
Governing Law. For all legal proceedings arising out of the use of the Website, the Services, and/or relating to these Terms, these Terms and the relationship between you and us shall, irrespective of any choice of laws rules, be governed by and construed per the laws of the State of North Carolina. You understand and agree that your use of the Website and the Services as contemplated by these Terms shall be deemed to have occurred in the state of North Carolina. To the extent litigation is permitted according to these Terms, you and we hereby irrevocably and unconditionally submit to the jurisdiction of courts located in Raleigh, North Carolina, or the court of competent jurisdiction closest thereto if no court of competent jurisdiction resides therein, and the parties consent to the personal jurisdiction of such courts and expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere. You and we irrevocably waive, to the fullest extent permitted by law, any objection that you may now or hereafter have to the laying of the venue of any proceeding brought in any such court or any claim that a legal proceeding commenced in such court has been brought in an inconvenient forum.
Assignment. You may not assign, convey, or transfer (whether by contract, merger, or operation of law) (collectively, “assign” or variants) these Terms, in whole or in part, without our prior written consent, which may be granted or withheld by us in our sole discretion. Any attempted assignment in violation of these Terms will be of no power or effect. We may assign these Terms freely at any time without notice. Subject to the foregoing, these Terms will bind and inure to the benefit of each party’s permitted successors and assigns. We reserve the right to, and you hereby consent to, our right to disclose, transfer, and/or assign your Personal Information in connection with a merger, consolidation, restructuring, financing, sale, or other transaction or according to any court proceeding. In addition, if a potential buyer is interested in purchasing us, you agree that we may provide the potential buyer with your Personal Information on a confidential basis and subject to the use restrictions in these Terms.
Relationship of the Parties. The parties intend that no partnership, joint venture, employee, employer, or other relationship is intended or will be created by these Terms. You agree not to hold yourself out as in any way sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of us, any of our affiliates, or respective service providers. There are no third-party beneficiaries to these Terms.
Notices. You agree that we may provide you with notices, including those regarding changes to these Terms, by email to the address you provided at the time of registration or such changed address as you provide to us in your account data.
Contact Us. If you have any questions or concerns, please email us at email@example.com.
You may also visit our “Support” website page at www.borrowlocal.com/support.