Baketivity™ Terms and Conditions
Terms and Conditions and Mobile Application End User License Agreement of
Baketivity, LLC (d/b/a Baketivity)
(Last Updated: March 1, 2016)
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS AND MOBILE APPLICATION END USER LICENSE AGREEMENT CAREFULLY BEFORE USING ANY ASPECT OF THE BAKETIVITY® OFFERINGS.
- User’s Acknowledgment and Acceptance of Terms
You agree to be bound by the following Terms and Conditions and Mobile Application End User License Agreement of Baketivity, LLC (d/b/a Baketivity®) (“Terms and Conditions”), in their entirety, when you: (a) access or use the Baketivity.com website or any other online Baketivity platform (collectively, the “Site”); (b) access or use the Baketivity mobile application (the “App”); (c) access and/or view any of the video, audio, stories, text, photographs, graphics, artwork and/or other content featured on the Site and/or in the App (collectively, “Content”); (d) sign up to receive the Baketivity subscription service (the “Baketivity Subscription Service”), and/or any other products or services offered by Baketivity from time to time (collectively, with the Baketivity Subscription Service, the “Baketivity Service”); (e) purchase or otherwise redeem or sign up to receive or send Baketivity gift cards or gift certificates (including for all purposes of the Agreement electronic gift cards or certificates) (collectively, “Gift Cards”) or Trial Offers (as defined in Section 3(g)) ; (f) access links to Baketivity’s social media pages/accounts on third-party social media websites or mobile or other platforms, such as Facebook®, Instagram®, Pinterest®, LinkedIn®, Twitter®, Snapchat®, and YouTube® (collectively, “Social Media Pages”); (g) enter one of the sweepstakes, contests and/or other promotions offered or conducted by Baketivity from time-to-time (collectively, “Promotions”); and/or (h) utilize the many interactive features of the Site and/or App designed to facilitate interaction between you, Baketivity and other users of the Site and App, respectively, including, but not limited to, blogs and associated comment sections located in designated areas of the Site and App, as applicable (collectively, the “Interactive Services” and together with the Site, App, Content, Baketivity Service, Gift Cards, Trial Offers, Social Media Pages and Promotions, the “Baketivity Offerings”). The Baketivity Offerings are owned and operated by Baketivity, LLC d/b/a Baketivity (“Baketivity,” “we,” “our” or “us”).
IMPORTANT: BY USING THE BAKETIVITY OFFERINGS, YOU AGREE TO RESOLVE ALL DISPUTES WITH BAKETIVITY THROUGH BINDING ARBITRATION, NOT IN COURT, AND YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS. THE EXCEPTIONS AND WAIVERS ARE DETAILED IN SECTION 14.
Blog posts and other Content on the Site or in the App may contain recipes, meal recommendations, dietary advice (collectively, the “Dietary Advice”) and the food products delivered in connection with the Baketivity Service (collectively, the “Dietary Options”) will contain various ingredients. You should always consult with your physician or other healthcare professional before adopting any Dietary Advice or partaking in any Dietary Options, whether offered by and through the Baketivity Offerings or otherwise. The Dietary Advice and/or Dietary Options may include ingredients that you are allergic to. You should always check the ingredients associated with any Dietary Advice and Dietary Options to avoid potential allergic reactions. If you have or suspect that you have an allergic reaction or other adverse health event, promptly contact your health care provider.
Some of the eight (8) major U.S. allergens as determined by the U.S. Department of Agriculture (“USDA”) (milk, wheat, egg, soy, fish, shellfish, peanuts and treenuts) are stored, portioned and packed in each of Baketivity’s facilities. Although Baketivity takes precautions to limit the potential for cross-contamination, cross-contamination may occur between food products, allowing meals or other products offered in connection with the Baketivity Service to contain some or all of those allergens.
Facebook® and Instagram® are registered trademarks of Facebook, Inc. (“Facebook”). LinkedIn® is a registered trademark of LinkedIn Corporation (“LinkedIn”). Pinterest® is a registered trademark of Pinterest, Inc. (“Pinterest”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). Snapchat® is a registered trademark of Snapchat, Inc. YouTube® is a registered trademark of Google, Inc. (“Google”). Please be advised that Baketivity is not in any way affiliated with Facebook, Google, LinkedIn, Pinterest or Twitter, and the Baketivity Offerings are not endorsed, administered or sponsored by any of those parties.
If you have any questions about the Agreement or the Baketivity Offerings, please access our Frequently Asked Questions or call our Customer Service team at 212-388-6170.
We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that: (a) any amendment or modification to the provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site and in the App, and you should review the Agreement prior to using the Baketivity Offerings and from time to time thereafter. By your continued use of any of the Baketivity Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Agreement, as in effect at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions in effect at the time of the subject dispute or incurred charges, as applicable). All amendments or modifications to the Agreement shall be effective immediately upon publication on the Site and App.
- Baketivity Service
(a) Baketivity Subscription Service. The Baketivity Subscription Service is an automatic recurring subscription service. As part of the Baketivity Subscription Service, we offer a number of subscription options that you choose from (each, a “Plan”). Using the plan, you will receive a package from Baketivity including the contents of your chosen Plan (each a “Delivery”). You can find specific details regarding your Plan and the Baketivity Service (“Account”) by accessing the Site and accessing your Account details.
For information on how to change, modify or cancel your Plan or to skip a delivery, please see Section 3(d). Some promotions for the Baketivity Service or other Baketivity Offerings may be offered by third parties in conjunction with the provision of such third parties’ own products and services. We are not responsible for any other products and services provided by such third parties. We reserve the right to modify, terminate or otherwise amend, in our sole discretion, our offered Plans; provided, however, that any amendment or modification to the Billing Provisions associated with those Plans shall not apply to any charges incurred prior to the applicable amendment or modification.
WHEN YOU REGISTER FOR THE BAKETIVITY SUBSCRIPTION SERVICE (AND EACH TIME YOU CHANGE YOUR PLAN) YOU EXPRESSLY AUTHORIZE AND AGREE THAT BAKETIVITY AND/OR OUR THIRD PARTY PAYMENT PROCESSOR IS AUTHORIZED TO AUTOMATICALLY CHARGE YOUR PAYMENT METHOD (AS DEFINED BELOW) ON A WEEKLY, RECURRING BASIS IN AN AMOUNT EQUAL TO THE THEN-EFFECTIVE RATE FOR YOUR PLAN, TOGETHER WITH ANY APPLICABLE TAXES AND SHIPPING (the “PLAN RATE”), FOR AS LONG AS YOU CONTINUE TO USE THE BAKETIVITY SUBSCRIPTION SERVICE, EXCEPT ON WEEKS YOU CHOOSE TO SKIP PRIOR TO THE CUTOFF TIME (AS DEFINED BELOW) OR UNLESS YOU CANCEL YOUR BAKETIVITY SUBSCRIPTION SERVICE IN ACCORDANCE WITH THE AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT BAKETIVITY WILL NOT OBTAIN ANY ADDITIONAL AUTHORIZATION FROM YOU FOR SUCH AUTOMATIC, RECURRING PAYMENTS. IN ADDITION, YOU AUTHORIZE US (AND/OR OUR THIRD PARTY PAYMENT PROCESSOR) TO CHARGE YOUR PAYMENT METHOD FOR ANY ADDITIONAL BAKETIVITY OFFERINGS PURCHASED BY YOU FROM TIME TO TIME OUTSIDE OF OR IN EXCESS OF YOUR PLAN, PLUS ANY APPLICABLE TAXES AND SHIPPING. EVERY TIME THAT YOU USE THE BAKETIVITY SUBSCRIPTION SERVICE, YOU RE-AFFIRM THAT BAKETIVITY IS AUTHORIZED TO CHARGE YOUR PAYMENT METHOD AS PROVIDED IN THE AGREEMENT, AND TO HAVE ALL APPLICABLE FEES AND CHARGES APPLIED TO SAME.
(b) Payment and Billing Information. By providing your credit or debit card information (or other payment method accepted by Baketivity from time to time) when you sign up, and as updated from time to time on your Account page (your “Payment Method”), you authorize Baketivity and/or our third-party payment processor to charge your Payment Method as provided in the Agreement. Baketivity is unable to accept checking account transactions, paper checks, food stamps or third-party coupons at this time. If your Payment Method cannot be authorized or is otherwise in error, we may suspend or cancel your Delivery for the affected weeks. In the event of such failure of your Payment Method, we may take reasonable steps to retry your Payment Method. We may contact you to reconfirm or update your Payment Method. We are not responsible for any fees incurred by you when charging or retrying your Payment Method, including but not limited to, overdraft fees. You can update or change your Payment Method and other billing and payment account information by visiting your Account page on the Site or App, as applicable. In the event any such update or change is made after the Cut Off Time (as defined below) for your next scheduled Delivery, such update or change may not take effect immediately. Your right to use the Baketivity Service is subject to limits established by Baketivity and/or by the issuer of your Payment Method.
(c) Credit or Debit Card Temporary Authorizations. Baketivity reserves the right to execute an authorization or temporary charge on your Payment Method to up to One Dollar ($1.00) to verify that your Payment Method is valid and that the information you provide to Baketivity is correct (the “Temporary Authorization”). The Temporary Authorization will expire in a few days (debit card authorizations typically expire in 24-48 hours depending on your Payment Method provider’s rules). If you experienced trouble enrolling with Baketivity, you may see multiple Temporary Authorizations. These Temporary Authorizations will expire in accordance with your Payment Method provider’s rules.
(d) Changes, Cancellations & Other Modifications to the Plan. You may skip a delivery (or multiple deliveries to the extent allowed) at any time in accordance with the Agreement by visiting your Account page and following the instructions located therein, or by contacting us at help@Baketivity.com or 212-388-6170. You may cancel your Plan at any time by visiting your Account page and following the instructions located therein, or by contacting us at help@Baketivity.com or 212-388-6170.Changes to, or cancellations of, your Plan, or requests to skip any Delivery of your Baketivity Subscription Service, must be received by Baketivity by 12:00 p.m. in your applicable time zone, as determined by your delivery zip code, in each case at least six (6) days before your next scheduled delivery date, in order to take effect prior to the next scheduled Delivery (the “Cut Off Time”).If you do not submit such cancellation, skip or change request before the Cut Off Time, your weekly Delivery will be shipped and you will be charged your Plan Rate as provided in the Agreement, and if you requested to change or cancel your Plan, such change will not take effect until the week following your next weekly Delivery.
(e) Gift Cards. You may purchase and/or otherwise receive Gift Cards through the Site and/or App. You must create or have an existing and valid Account with Baketivity in order to redeem a Gift Card. All Accounts are subject to the Agreement in all respects. Gift Cards (which include, for purposes of the Agreement, e-gift cards and gift certificates) purchased from Baketivity expire on the later of: (a) the fifth (5th) anniversary of the date of purchase or (b) any longer expiration period required by applicable law. Gift Cards may not be redeemed for cash (except in those jurisdictions that require redemptions for cash). Baketivity Gift Cards may be redeemed on the Site or on the App. Redemptions of Gift Cards will result in the application of a credit to your Account in the amount of the Gift Card balance. Any Gift Card balances will be applied toward your Baketivity Subscription Service or any other product purchased by you from Baketivity from time to time until the Gift Card is depleted. Gift Cards are not redeemable for cash or credit, except to the extent required by applicable law. Baketivity is not responsible for lost or stolen Gift Cards. Lost or stolen Gift Cards cannot be replaced (except as required by law). All sales of Baketivity Gift Cards are final and non-refundable.
(f) Refunds and Credits. If you are dissatisfied with a Delivery and/or something is missing from your package, please contact us at help@Baketivity.com or 212-388-6170 and we may, in our sole discretion, issue a credit to your Account. All requests for a refund must be made within ninety (90) days from the date that your Account was charged for the underlying Delivery. If you request a refund after the ninety (90) day period, we may, in our sole discretion, issue a Gift Card in lieu of a refund to your Account. Gift Cards are subject to additional terms and conditions. Please visit Section 3(e) of the Agreement for our Gift Card terms, conditions and policies (collectively, “Gift Card Policies”).
If you participate in any referral program or other referral offer that we offer from time to time, any referral credits earned by you or sent to you must be used within 14 days from the date of issuance, unless otherwise expressly specified in the terms of such referral program or offer. Baketivity reserves the right, in its absolute discretion, to determine your eligibility to participate in any referral program or other referral offer and will notify offenders of any perceived fraudulent activity which may result in, but is not limited to, Delivery and/or Account cancellation and/or cancellation of any outstanding referral or other unpaid credits.
(g) Trials. We may offer, from time to time, free or discounted trials for the Baketivity Subscription Service (“Trial Offers”). Any such Trial Offer lasts for the first week of your Plan only, unless expressly otherwise specified during sign-up and/or in the terms applicable to such Trial Offer. Trial Offers may not be combined with any other offers or promotions. Trial Offers are for first-time users of the Baketivity Subscription Service only, unless expressly provided otherwise in the terms applicable to such Trial Offers. Baketivity reserves the right, in its absolute discretion, to determine your eligibility for any Trial Offer and will notify offenders of any perceived fraudulent activity which may result in, but is not limited to, Delivery and/or Account cancellation and cancellation of any outstanding referral or other unpaid credits.
We will begin automatically billing your Payment Method the Plan Rate for your Plan on a recurring, weekly basis as provided in the Agreement at the end of the Trial Offer, or as otherwise specified at the beginning of your enrollment in the Trial Offer, unless you cancel your Plan prior to the end of the Trial Offer period with proper advance notice to Baketivity in accordance with this Agreement. Baketivity will send an email communication after you initially enroll in the Baketivity Subscription Service providing information on how to cancel your Baketivity Subscription Service. You may cancel your Baketivity Subscription Service prior to the start of automatic, recurring charges to your Payment Method only by following the instructions contained in the email or the Agreement. Such confirmation email will be sent in a timely manner so as to afford you sufficient time to cancel your Baketivity Subscription Service prior to the start of automatic, recurring weekly charges to the Payment Method provided by you at the time of sign-up. We reserve the right to authorize your Payment Method through various commercially reasonable methods.
(h) Promotions. From time to time, Baketivity offers Promotions by and through the Site, App, Baketivity food truck(s) or other facilities or other means. By providing true and accurate information in connection with the applicable Promotion registration form(s) and agreeing to the Promotion Rules applicable to each Promotion, you can obtain, or attempt to obtain, a chance to win the prize(s) and other awards offered through each Promotion, if any. You understand and agree that Baketivity shall not be liable to you or any third party for any claim in connection with your participation in any of the Promotions.
(i) Price and Availability. We reserve the right to adjust prices in our sole discretion, at any time and without notice to you; provided, however, that we will provide you with at least ten (10) days’ advance notice of any price changes associated with your Plan Rate. Your acceptance of Deliveries of the Baketivity Service after such notice has been delivered to you will constitute your acceptance of such price changes, unless you cancel your Baketivity Subscription Service in accordance with this Agreement. All prices shown on the Site and/or in the App are in U.S. dollars. Any applicable taxes and other fees or charges are not included and are additional to any prices shown on the Site and/or in the App. Prices, taxes or other fees may vary geographically.
We strive to provide you with high-quality products. Given the perishable nature of our products, from time-to-time certain products may be unavailable due to market conditions beyond our reasonable control or to quality that is below our standards. In the event that one of our ingredients or products is unavailable for any reason, and we have a replacement item that is comparable to such ingredient or product, we may make a substitution in our discretion. All of our products are subject to availability, and we reserve the right to limit the contents of your Delivery or the quantity of a particular product that you may order.
(j) Delivery of Products. Baketivity uses appropriate refrigerated shipping solutions and may use third-party delivery companies to deliver the Baketivity Service to its customers. Food products will remain fresh in your unopened package at room temperature (i.e., 78 degrees Fahrenheit) through midnight of the delivery date. You are responsible for inspecting your Delivery for any damage.
The risk of loss and/or damage to the Delivery is passed entirely to you at the time of delivery. You are solely responsible for the preparation, storage and cooking of the Delivery contents following delivery. Baketivity recommends that all instructions specified be followed.
The Baketivity Offerings may not be available in all geographical areas. To receive a Delivery, you must live in a residential apartment or home, or receive permission from your employer or business owner to receive shipments to a business address. Shipments may not be scheduled to business addresses for Saturday deliveries. Additionally, after your second Delivery with Baketivity, you may designate an alternate receiver located within or near your building or home to accept your Delivery. This alternate receiver may accept your Delivery when you are not present at the time of delivery and shall accept the Delivery under all of the same terms and conditions that would apply had you accepted the Delivery yourself. Anyone at the delivery address who receives the Delivery is conclusively presumed to be authorized to receive the Delivery. If you, your doorman or your alternate receiver are not present at the delivery, we will use commercially reasonable efforts to contact you using the contact information in your Account. In certain geographical areas, and in Baketivity’s sole discretion, Baketivity may offer unattended delivery.
If something is missing from your Delivery, please contact us at help@Baketivity.com or 212-388-6170.
In the case of inclement weather or unforeseen delivery complications beyond our reasonable control, it may be necessary to make adjustments to our delivery schedule, which may require us to suspend, reschedule or cancel chosen delivery dates and times in our discretion. We will use commercially reasonable efforts to communicate any such delivery complications or adjustments. In the event that we are unable to make a scheduled delivery for any reason, we may, in our sole discretion, issue you a credit or refund of the purchase price for that Delivery.
(k) Dietary Preferences and Restrictions. Baketivity does not guarantee the accuracy of any nutritional information provided by Baketivity. Baketivity will not be responsible for any loss or damage resulting from your reliance on nutritional information, nor for ensuring that whatever foods you purchase, prepare or consume are in accordance with your respective dietary needs, restrictions or preferences. As such, you should always check the ingredients associated with any products that you receive from Baketivity to avoid potential allergic reactions. If you have or suspect that you have an allergic reaction or other adverse health event, promptly contact your health care provider.
(l) Third-Party Information Providers and Merchants. In certain cases, the Baketivity Service may permit you to order and receive products, information and services from third parties that are not owned or operated by Baketivity. In such instances, Baketivity acts only as the link between you and such third parties. The purchase, payment, warranty, guarantee, delivery, maintenance and all other matters concerning the merchandise, services and/or information ordered or received from such third parties are covered by their respective customer agreements and policies and are matters that should be addressed solely between you and such third parties. Baketivity makes no representations or warranties of any kind, express or implied, regarding the merchandise, services and/or information received from such third parties and the fact that Baketivity makes such products, information, and services available to you should not be construed as an endorsement of the third parties and/or the products, services, and information that they provide. You agree that Baketivity shall have no obligation and incur no liability to you in connection with any products, information and/or services from third parties that are not owned or operated by Baketivity.
You shall be responsible, at all times, for ensuring that you have an applicable mobile device and/or other equipment and service necessary to access the App. Baketivity does not guarantee the quality, speed or availability of the Internet connection associated with your mobile device. Baketivity does not guarantee that the App can be accessed: (a) on all mobile devices; (b) through all wireless service plans; and/or (c) in all geographical areas. Standard messaging, data and wireless access fees may apply to your use of the App. You are fully responsible for all such charges and Baketivity has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.
(a) Installation/ Download Venues. Baketivity believes in providing end-users with clear, concise and complete disclosure before end-users download and install the App, including a description of the primary functions of the App. The App requires User’s consent prior to installation. Baketivity does not believe that end-users should be deceived into downloading or installing the App. End-users may be able to download the App by and through the iTunes Store®, Google Play® store (but only where an Android version is made available, in Baketivity’s sole discretion) and other applicable venues (collectively, the “Download Venues”).
Google Play® is a registered trademark of Google. iTunes® is a registered trademark of Apple, Inc. (“Apple”). Please be advised that Baketivity is not in any way affiliated with Apple or Google, and the Baketivity Offerings are not endorsed, administered or sponsored by Apple or Google.
(b) Uninstall. The App can be completely uninstalled in a straightforward manner and without requiring undue effort or skill, in most cases by using the traditional “uninstall” app function contained within your mobile device. Please be advised that in some instances, you may be required to restart your mobile device before all remnants of the App are completely uninstalled and removed from your mobile device. If you experience any problems installing and/or uninstalling the App, please contact us via e-mail us at: help@Baketivity.com; or call us at: 212-388-6170.
(c) Export/Usage Restrictions. You agree that the App may not be transferred or exported into any other country, or used in any manner prohibited by U.S. or other applicable export laws and regulations. The Baketivity Offerings are subject to, and you agree that you shall at all times comply with, all local, state, national and international laws, statutes, rules, regulations, ordinances and the like applicable to use of the Baketivity Offerings. You agree not to use the Baketivity Offerings: (a) for any commercial purposes; or (b) to conduct any business or activity, or solicit the performance of any activity, which is prohibited by law or any contractual provision by which you are bound.
The Site and App contain Content which includes, but is not limited to, information pertaining to the Baketivity Offerings, as well as regularly updated blog posts and third party links. The Content is offered for informational purposes only and is at all times subject to the disclaimers contained herein, and on the Site and in the App.
- Interactive Services
Subject to the restrictions set forth herein, the Interactive Services will allow end-users to participate in comment sections and other interactive areas of the Site and/or App. Each end-user agrees to use the Interactive Services in full compliance with all applicable laws and regulations. Each end-user shall be solely responsible for her/his comments, opinions, statements, feedback and other content (collectively, “Feedback”) posted by and through the Interactive Services. You understand and agree that Baketivity shall not be liable to you, any other end-user or any third party for any claim in connection with your use of, or inability to use, the Interactive Services. Baketivity does not monitor the Feedback submitted by end-users, and operates the comment sections of the Site and App as a neutral host. The Interactive Services contain Feedback that is provided directly by end-users. You agree that Baketivity shall have no obligation and incur no liability to you in connection with any Feedback appearing in or through the Interactive Services. Baketivity does not represent or warrant that the Feedback posted through the Interactive Services is accurate, complete or appropriate. Baketivity reserves the right to remove any Feedback from the Site and/or App at any time and for any reason, in Baketivity’s sole discretion.
You agree to use the Interactive Services in a manner consistent with any and all applicable laws and regulations. In connection with your use of the Interactive Services and other of the Baketivity Offerings, you agree not to: (a) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third party; (b) display any audio files, text, photographs, videos or other images containing confidential information; (c) display any audio files, text, photographs, videos or other images that may be deemed indecent or obscene in your community, as defined under applicable law; (d) impersonate any person or entity; (e) “stalk” or otherwise harass any person; (f) engage in unauthorized advertising to, or commercial solicitation of, other end-users; (g) transmit any chain letters, spam or junk e-mail to other end-users; (h) express or imply that any statements that you make are endorsed by Baketivity, without Baketivity’s specific prior written consent; (i) harvest or collect personal information of other end-users whether or not for commercial purposes, without their express consent; (j) use any robot, spider, 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 App, Site and/or their respective content; (k) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (l) remove any copyright, trademark or other proprietary rights notices contained in the App and/or Site; (m) interfere with or disrupt the App, Site and/or the servers or networks connected to same; (n) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (o) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to mobile networks; (p) “frame” or “mirror” any part of the App and/or Site without Baketivity’s prior written authorization; (q) use metatags or code or other devices containing any reference to any Baketivity Offerings in order to direct any person to any other mobile application or website for any purpose; and/or (r) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Baketivity Offerings or any software used in or in connection with Baketivity Offerings. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Agreement and may result in the immediate termination of your access to the App and/or Site without notice, in the sole discretion of Baketivity. Baketivity reserves the right to pursue any and all legal remedies against end users that engage in the aforementioned prohibited conduct.
- License and Proprietary Rights
(a) Copyright and Ownership. The Site, App, and all associated Content, design, text, graphics, and interfaces; as well the collection, selection, and arrangement thereof; and all associated software (collectively, the “Baketivity Materials”), are the sole and exclusive property of, or duly licensed to, Baketivity. Consent is granted to view, electronically copy, and print in hard copy portions of the App and Site for the sole purpose of using the Baketivity Service. Any other use of the Baketivity Materials, including modification, distribution, or reproduction for purposes other than those noted above, without the prior written permission of Baketivity is strictly prohibited. You acknowledge that Baketivity and/or third-party content providers remain the owners of such Baketivity Materials and that you do not acquire any of those ownership rights by downloading copyrighted material. Baketivity reserves the right to revoke this authorization at any time, and any use shall be discontinued immediately on written notice from Baketivity.
(b) Trademarks. “Baketivity®,” all other Baketivity marks and logos, and all titles, characters, names, graphics, and button icons are service marks, trademarks, and/or trade dress of Baketivity, LLC or otherwise proprietary to Baketivity, LLC, and may not be used by you for any reason other than as expressly permitted by the Agreement. All other trademarks, service marks, product names, and company names or logos appearing by and through the Baketivity Offerings are the property of their respective owners and you do not acquire any ownership rights in or to such marks, logos, or names by using and/or accessing the Baketivity Offerings.
- Copyright Policy/DMCA Compliance
Baketivity reserves the right to terminate any end-user’s access to the Baketivity Offerings where that end-user infringes upon third-party copyrights. If any end-user or other third party believes that a copyrighted work has been copied and/or posted via the Baketivity Offerings in a way that constitutes copyright infringement, that party should provide Baketivity with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location of the copyrighted work that such party claims has been infringed upon; (c) a written statement by such party that it has a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) such party’s name and contact information, such as telephone number or e-mail address; and (e) a statement by such party that the above information in such party’s notice is accurate and, under penalty of perjury, that such party is the copyright owner or authorized to act on the copyright owner’s behalf.
- Access to the Baketivity Offerings
(a) Access. You will provide all equipment and services and be responsible for all data, telephone and other charges necessary to access the Baketivity Offerings. You agree to comply with all applicable laws and the terms of the Agreement in connection with your use of or participation in any Baketivity Offerings. You hereby represent that you are at least eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in your jurisdiction), and have the requisite power and authority to enter into the Agreement and perform your obligations hereunder.
You acknowledge that from time to time the Site, App and/or other Baketivity Offerings may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Baketivity may undertake from time to time; or (c) causes beyond the reasonable control of Baketivity or which are not reasonably foreseeable by Baketivity. Baketivity shall not be liable to you in any such event.
(b) ID Number and Passwords. Access to the Baketivity Service is accomplished through the use of a registered email address and a password that you choose upon your registration for the Baketivity Service, as updated from time to time. You are solely responsible for any authorized or unauthorized access to your Account by any person. You agree to bear all responsibility of the upkeep and maintenance of an accurate and active email address for access to the Site and App, or receipt of transactional, Account-related or marketing email communications or other communications relating to the Baketivity Offerings. You agree to bear all responsibility for the confidentiality of your password. You agree to notify Baketivity promptly of any unauthorized use of your password or Account and you will remain liable for any unauthorized use of the Baketivity Service.
(c) Your Account/Registration. You are responsible for all charges (including applicable taxes) to your Account in connection with your use of the Baketivity Service, including in connection with your Plan and/or any other add-on or other purchases that are selected for purchase from time to time, by you or anyone you allow to use your Account and password to access the Baketivity Service.
In order to access the Baketivity Offerings, you must provide some or all of the following information: (a) your full name; (b) your e-mail address; (c) your mailing and/or billing address; (d) your telephone number; (e) your Payment Method information; (f) information pertaining to your alternative receiver of product ; and (g) any other information requested by Baketivity (collectively, “Account Information”). You agree and accept responsibility for keeping all your Account Information current, up to date and accurate in all respects. You can update your Account Information by visiting your Account page on the Site or App, as applicable, or by contacting us at help@Baketivity.com or 212-388-6170. Please do not send credit card or other payment information via email. You agree that you will not provide fraudulent Account Information and that you are solely responsible for any Account Information that you provide to Baketivity, and accept responsibility for all activities that occur under your Account or password and for restricting access to your computer and mobile device(s), as applicable.
- Representations and Warranties
Each end-user hereby represents and warrants to Baketivity as follows: (a) the Agreement constitutes such end-user’s legal, valid and binding obligation which is fully enforceable against such end-user in accordance with its terms; (b) such end-user understands and agrees that such end-user has independently evaluated the desirability of utilizing the Baketivity Offerings and that such end-user has not relied on any representation and/or warranty other than those set forth in the Agreement; (c) such end-user’s performance under the Agreement, such end-user’s use of the Baketivity Offerings and her/his Feedback (if applicable) will not: (i) invade the right of privacy or publicity of any third person; (ii) involve any libelous, obscene, indecent or otherwise unlawful material; (iii) violate any applicable law; and/or (iv) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of publicity, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity; and (d) if applicable, such end-user will be solely responsible for her/his feedback.
Each end-user agrees to indemnify, defend and hold Baketivity and the Baketivity Parties (as defined below) harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to: (a) her/his feedback; (b) any dispute between that end-user and any other end-user or third party; (c) that end-user’s breach of the Agreement and/or any representation or warranty contained herein; (d) any allegation that such end-user (or that end-user’s feedback) has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (e) any claim that such end-user’s use of the Baketivity Offerings has violated any applicable law; and/or (f) such end-user’s use of the Baketivity Offerings in any manner whatsoever.
- Warranty Disclaimer
THE BAKETIVITY OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, BAKETIVITY MAKES NO WARRANTY THAT THE BAKETIVITY OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL RESULT IN ANY SPECIFIC DIETARY BENEFIT, WEIGHT LOSS OR OTHER HEALTH-RELATED OUTCOME; AND/OR (E) WILL BE ACCURATE OR RELIABLE. THE BAKETIVITY OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. BAKETIVITY WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET AND/OR MOBILE NETWORK CONNECTION ASSOCIATED WITH THE BAKETIVITY OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BAKETIVITY OR OTHERWISE THROUGH OR FROM THE BAKETIVITY OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. WITHOUT LIMITING THE FOREGOING, BAKETIVITY DOES NOT ENDORSE END-USER CONTENT OR FEEDBACK AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY FEEDBACK.
- Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER BAKETIVITY, NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, REPRESENTATIVES, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, OR LICENSORS (COLLECTIVELY, “BAKETIVITY PARTIES”), SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BAKETIVITY OR THE APPLICABLE BAKETIVITY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR THE INABILITY TO USE THE BAKETIVITY OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS PURCHASED OR OBTAINED FROM OR THROUGH THE BAKETIVITY OFFERINGS; (C) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR ACCOUNT INFORMATION; (D) THE FAILURE TO REALIZE ANY SPECIFIC DIETARY BENEFIT, WEIGHT LOSS OR OTHER HEALTH-RELATED OUTCOME; AND/OR (E) ANY OTHER MATTER RELATING TO THE BAKETIVITY OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. YOU HEREBY RELEASE BAKETIVITY AND THE BAKETIVITY PARTIES FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF BAKETIVITY TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE AS SET FORTH IN THE DISPUTE RESOLUTION PROVISIONS OF THESE TERMS AND CONDITIONS. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF YOUR USE OF THE BAKETIVITY OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME, MAY BE BROUGHT BY YOU OR BAKETIVITY MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE SUBJECT CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND BAKETIVITY. ACCESS TO THE BAKETIVITY OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF BAKETIVITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Dispute Resolution Provisions
In the event of any dispute, controversy or claim arising out of or relating to the Baketivity Offerings or the Agreement, or any provisions of the Agreement, or the breach of same by any party hereto: (a) each of you and Baketivity agree to submit such dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found Here. We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”). If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in your county of residence, by filing a separate Demand for Arbitration, which is available Here. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Baketivity or the Baketivity Parties. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that Baketivity incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you agreed to, or are deemed to have agreed to, the Agreement as provided hereunder.
- User content and Material.
We do not claim ownership of user-generated content and material. Any and all photographs, articles, images, graphics, videos, sounds, music, audio recordings, text, files, profiles, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content that you (i) submit or post on the Site, on any of our blogs, social media accounts or through tools or applications we provide for posting or sharing such content with us; or (ii) have posted or uploaded to your social media accounts, including but not limited to Instagram, Twitter, Facebook, Snapchat, and Pinterest, which are tagged with #BAKETIVITY or any other Baketivity promoted hashtag (collectively “User Content”) shall be deemed nonconfidential and nonproprietary. By submitting or posting any User Content, you grant to Baketivity and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use or otherwise exploit all or any portion of the User Content, as well as your name, persona and likeness included in any User Content and your social media account handle, username, real name, profile picture and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including but not limited to in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, will have the right to (i) receive any royalty or consideration of any kind for the use of the User Content pursuant to this Agreement or (ii) inspect or approve the editorial copy or other material that may be used in connection with the User Content. Baketivity will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. Baketivity shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content or respond to any User Content. Baketivity retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason. Subject to the licenses granted in this Agreement, you retain ownership of any copyright and other rights you may have in the User Content.
By submitting or posting User Content on the Site, on your social media accounts or through any tools or applications we provide for posting or sharing your User Content with us, you represent and warrant that (i) you own or control any and all rights in and to the User Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (ii) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you are 18 years of age or older; and (iv) the User Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) contain any addresses, email addresses, phone numbers or any contact information or (e) contain computer viruses, worms or other harmful files. Upon request by Baketivity, you will furnish Baketivity any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You are solely responsible for the User Content and you hereby agree to indemnify and hold Baketivity and its employees, agents, affiliates, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
Baketivity does not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by you or anyone else. By submitting or posting the User Content you fully and unconditionally release and forever discharge Baketivity and its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and one or more users or any other person or entity, or (ii) the use by Baketivity or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that Baketivity has no control over, and shall have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. Baketivity acts as a passive conduit for User Content and has no obligation to screen or monitor User Content. If Baketivity becomes aware of any User Content that allegedly may not conform to these Terms, Baketivity may investigate the allegation and determine in its sole discretion whether to take action in accordance with these Terms. Baketivity has no liability or responsibility to end-users for performance or nonperformance of such activities.
BAKETIVITY HAS THE ABSOLUTE RIGHT TO REMOVE AND/OR DELETE WITHOUT NOTICE ANY USER CONTENT WITHIN ITS CONTROL THAT IT DEEMS OBJECTIONABLE. YOU CONSENT TO SUCH REMOVAL AND/OR DELETION AND WAIVE ANY CLAIM AGAINST BAKETIVITY FOR SUCH REMOVAL AND/OR DELETION. BAKETIVITY IS NOT RESPONSIBLE OR LIABLE FOR FAILURE TO STORE POSTED CONTENT OR OTHER MATERIALS YOU TRANSMIT THROUGH THE SITE. YOU SHOULD TAKE MEASURES TO PRESERVE COPIES OF ANY DATA, MATERIAL, CONTENT OR INFORMATION YOU POST ON THE SITE OR ANY OTHER SITES OR PLATFORMS.
(a) Termination. The Agreement is effective upon your acceptance as set forth herein and shall continue in full force and effect until terminated. Baketivity may suspend or terminate the Agreement or any Baketivity Offerings or remove or disable access to all or any portion of the Baketivity Offerings at any time for any reason or for no reason with or without notice to you. You may terminate your Baketivity Service account at any time for any reason or for no reason by delivering notice in the manner provided above, which termination will be effective the day notice is received or such later date specified in the notice. Baketivity reserves the right to collect fees and charges incurred before you cancel your Baketivity Service account. In addition, you are responsible for any charges incurred to third-party vendors or content providers prior to your cancelation.
(b) Third Party Websites. The Baketivity Offerings contain links to other websites on the Internet that are owned and operated by third parties including, without limitation, the Social Media Pages. Baketivity does not control the information, products or services made available on, by or through these third party websites. The inclusion of any link does not imply endorsement by Baketivity of the applicable website or any association with the website’s operators. Because Baketivity has no control over such websites and/or resources, each end-user agrees that Baketivity is not responsible or liable for the availability or the operation of such external websites, for any material located on or available from or through any such websites or for the protection of any end-user’s data privacy by third parties. Each end-user further agrees that Baketivity shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on, by or through any such website.
(c) Notices. Baketivity may give notice to you of any change or any other communication related to the Agreement through a general posting on the Site and in the App, by email, or by conventional mail to your address contained in the data provided by you in your account. You may give notice to Baketivity by emailing help@Baketivity.com
(d) Entire Agreement; Severability; Waiver; Relationship of the Parties; Headings; Assignment. The Agreement represents your entire agreement with Baketivity regarding your use of the Baketivity Offerings. To the extent that anything in or associated with the Baketivity Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence provided, however, that with respect to the: (a) Promotions, to the extent that anything in these Terms and Conditions is inconsistent with the applicable Promotion Rules, those Promotion Rules, as applicable, shall take precedence; and (b) Gift Cards, to the extent that anything in these Terms and Conditions is inconsistent with the applicable Gift Card Policies, those Gift Card Policies shall take precedence. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed, in accordance with applicable law, as nearly as possible to reflect the original intention of the parties, and the remainder of the Agreement shall remain in full force and effect. The failure of either party to insist upon strict performance of any provision of the Agreement shall not be construed as a waiver of any provision or right. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Baketivity may, with or without notice to you and in its sole discretion, assign the Agreement and/or any of its rights or delegate its duties under the Agreement to any third party for any purpose. The Agreement, may not however, be assigned by you, and you may not delegate your duties under it. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
(e) Third-Party Beneficiaries. You agree that the Agreement is not intended to confer and does not confer any rights or remedies upon any person other than you, Baketivity, and Baketivity Parties; provided, however, that the provisions of the Agreement are for the benefit of the Baketivity Parties, and each shall have the right to assert and enforce the provisions directly on its own behalf. The Agreement and all obligations and restrictions placed upon you or your permitted users by the Agreement shall survive termination of the Agreement and your Baketivity Service account.