Terms of Service
1. Terms and Modifications
We may modify these Terms at any time, in our sole discretion. The modified Terms will be posted on the Site or through other communications if we choose to modify the Terms. EACH TIME YOU ACCESS OR USE THE BAOBAB SERVICES YOU ARE ENTERING INTO A NEW AGREEMENT ON THE THEN-APPLICABLE TERMS. You should regularly review the Terms as we modify them. If you continue to use the Baobab Services after we have posted modified Terms, you thereby agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Baobab Services anymore. We may change or discontinue all or any part of the Baobab Services, at any time and without notice, at our sole discretion. By using the Baobab Services, you agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Baobab Services, or any portions of them. Certain features of the Baobab Services may be subject to additional guidelines, terms, or rules, which will accompany particular products or be posted on the Site. For example, certain content may be subject to additional terms or a separate end user license agreement (a “EULA” or “Additional Terms”, as applicable), which shall be considered a part of these Terms. If the EULA or Additional Terms and these Terms contain contradicting or inconsistent terms, such terms shall be resolved by Baobab in its sole and absolute discretion.
3. Who May Use the Baobab Services
In order to use certain features of the Baobab Services you will have to create an account (“Account”). You may create an Account if you are of legal age to agree to form a binding contract with Baobab and are not barred from using the Baobab Services under applicable law or regulation or these Terms.
You may not use the Services if you reside in any embargoed countries, e.g., Iran, Cuba, Syria, North Korea, or Iraq.
4. Consent to Electronic Communication
The Baobab Services are constantly evolving and may change over time. We may change, suspend or discontinue any or all aspects of the Baobab Services at any time for any reason without notice or liability to you. You acknowledge that you have no expectation of continued availability of the Baobab Services. We have the right to suspend or terminate access to the Baobab Services and your accounts on the Baobab Services, including due to a violation of these Terms.
The Baobab Services may include sweepstakes, contests, and promotions, which may also have additional rules and eligibility requirements, such as certain age or geographic area restrictions. You are responsible for complying with these rules and requirements.
By using the Baobab Services, you consent to receive electronic communications from us. These communications may involve sending emails to your email address provided during registration, or posting communications on the Baobab Services and may include notices about your account (e.g., payment authorizations, changes in password or payment method, confirmation of e-mails and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy.
The Baobab Services may include content and other materials supplied by Baobab and third parties (“Content”). Content includes, but is not limited to, text, graphics, mages, music, software, audio, video, animation, works of authorship of any kind information or other materials that are posted, generated, provided or otherwise made available through the Baobab Services. As between us and you, we own all rights, title and interest in the Baobab Services and Content, including all related intellectual property rights. Nothing grants you any rights in the Baobab Services or Content except as set forth in these Terms. You acknowledge and agree that the Baobab Services and Content are protected by copyright, trademark, patent, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Baobab Services or Content.
Except as otherwise expressly permitted by applicable law, any reproduction, distribution, modification, retransmission, publication, or other use or exploitation of our Content (or any portion or derivative thereof), directly or indirectly, is strictly prohibited unless written consent is first obtained.
The availability of Content on the Baobab Services may change from time to time and from place to place. You consent to us and our third-party providers determining your geographic location for purposes of providing the Baobab Services. Your location may not be accurately identified by our technology, so you may be unable to access certain features and Content even if you are located in an area where we intend to provide you access. We will not be liable to you for limitations or restrictions on access to Content, including any blackouts, location or device-based limitations, Content-viewing windows, or other limitations regarding availability of Content to you.
Some aspects of the display of Content may vary from device to device and may be affected by factors such as your location, the configuration of your device and the speed of your internet connection. We make no representations or warranties about the quality of your viewing experience on your device or other display.
6. Permitted Uses and License
We grant you a limited, non-exclusive, non-transferable license to access and use the Baobab Services solely for personal and non-commercial entertainment uses in compliance with these Terms as they may be modified from time to time. No other use of the Baobab Content is authorized.
Baobab may, in its sole discretion, terminate your password, account (or any part thereof) or your access to the Site, or remove and discard any Communication transmitted by you, or information stored, sent, or received via the Site without prior notice and for any reason, including, but not limited to: (i) concurrent access of the Site with identical user identification numbers, (ii) permitting another person or entity to use your user identification number to access the Site, (iii) any other access or use of the Site except as expressly provided in this Agreement, (iv) any violation of the terms and conditions of this Agreement or the rules and regulations relating to the use of, the software and/or data files contained in, or accessed through, the Site, (v) tampering with or alteration of any of the software and/or data files contained in, or accessed through, the Site, or (vi) failure to use the Site or portion thereof on a regular basis. You may terminate your membership hereunder upon thirty (30) days written notice by you to Baobab of your intent to terminate this Agreement. Termination, suspension, or cancellation of this Agreement or your access rights shall not affect any right or relief to which Baobab may be entitled, at law or in equity. Upon termination of this Agreement, all rights granted to you will automatically terminate and immediately revert to Baobab and its licensors.
8. Children Online Protection Act Notification
9. Terms Applicable to Third Party Platform Providers
If you access or download the Baobab Services via any app store or distribution platform (like the Apple Store or Google Play) (each, an “App Provider”), then you acknowledge and agree that:
These Terms are concluded between you and Baobab,
You must comply with all applicable third-party terms of service when using the Apps.
You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the Apps nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Apps you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you accessed or downloaded the Apps from the Apple Store, then you agree to use the Apps only: (i) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple Store Terms of Service.
If you accessed or downloaded our Software from a separate distribution platform (like Steam) (a “Software Provider”), then you acknowledge and agree that additional terms and conditions may apply to the Software, such as the Steam Subscriber Agreement, available at http://store.steampowered.com/subscriber_agreement/.
10. Health and Safety Notices
The Baobab Content may be viewed in virtual reality (“VR Content”) using third party virtual reality equipment and platforms. You are responsible for reading and following all setup and operating instructions and safety warnings provided with the virtual reality equipment and platform you are using. VR Content produces an immersive virtual reality experience, and users may have reactions to that experience, including simulation sickness, nausea discomfort, eye strain or disorientation. These reactions may be triggered when viewing VR Content for a brief or sustained period of time. Immediately stop viewing the VR Content if you experience any of these symptoms. Do not drive or operate machinery until you have recovered from any symptoms you experienced. See a doctor before viewing VR Content if you have a history of experiencing these symptoms or if you are prone to seizures. Anyone viewing VR Content should take frequent breaks while doing so. Remain seated whenever possible when viewing VR Content and take special care to be aware of your surroundings to ensure you do not injure yourself or other people around you while you are viewing or immediately after Viewing VR Content. Viewing VR Content is not recommended for children without adult supervision.
11. Use of Site Infringement Policy
We respect the intellectual property of others, and we ask our users to do the same. The Baobab Services, including the Content and other materials incorporated by us in the Baobab Services (“Materials”) are protected by copyrights, patents, trade secrets or other proprietary rights. Some of the characters, logos or other images incorporated by us in the Baobab Services are also protected as registered or unregistered copyrights, trademarks, trade names and/or service marks owned by us or others.
We, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the “Act”), reserve the right, but without obligation, to terminate your license to use the Baobab Services if we determine in our sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. If you believe that any User Content is defamatory or infringes your intellectual property, please send a written notice to the agent identified below to request a review of the alleged infringement:
Baobab Studios, Inc.
203 Redwood Shores Parkway, Suite 630
Redwood City, CA 94065
Attn: Legal; DMCA Notice
By e-mail: [email protected]
In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information:
Your name, address, telephone number, and e-mail address;
A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Baobab Services are covered by a single notification, a representative list of such works. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials;
Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law; and
A statement that the information in the notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.
We make no representation or warranty that the Content or Baobab Services are appropriate or available for use outside the United States, its territories, possessions and protectorates. If you choose to access the Baobab Services from other locations, you do so on your own initiative and at your own risk.
You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country in which you reside.
While we are always happy to hear from you, it is Baobab’s policy not to accept or consider creative materials, ideas, or suggestions other than those we specifically request. This is to avoid any misunderstandings if your ideas are similar to those we have developed independently. Therefore, we must request that you do NOT send to us any original creative materials such as screenplays, stories, original artwork, etc. Any communication or material you do transmit to the Site by electronic mail or otherwise will be treated as non-confidential and non-proprietary. Anything you transmit or post shall be deemed the property of and may be used by Baobab, or its affiliates, for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, Baobab is free to use and shall be deemed to own, any ideas, concepts, know-how, or techniques contained in any communication you send to the Site for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products using such information. Disclosure, submission, or offer of any submissions to the Site shall constitute an assignment to Baobab of all worldwide rights, titles, and interests in all copyrights and other intellectual property rights in such submission. Baobab may edit, copy, publish, distribute, translate, and otherwise use in any medium any submission that you forward to Baobab and will own exclusively all such rights, titles, and interest and shall not be limited in any way in its use, commercial or otherwise, of the submission. Baobab is and shall be under no obligation to: (1) maintain any of your or any user’s submissions in confidence; (2) to pay to you or any user any compensation for any submissions; or (3) to respond to any of your or any other user’s submissions. You acknowledge that, with respect to any claim you may have relating to or arising out of Baobab’s actual or alleged exploitation or use of any submission hereunder, the damage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle you to injunctive or other equitable relief or to in any way enjoin the production, distribution, exhibition or other exploitation of any production based on or allegedly based on such submission, and your rights and remedies in any such event shall be strictly limited to the right to recover damages, if any, in an action at law.
Your correspondence or business dealings with, or participation in promotions of, merchants found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such merchant. Baobab will NOT be responsible or liable for any loss and/ or damage of any sort incurred as the result of any such dealings or as the result of the presence of such merchants on the Site.
15. Chat Rooms / Message Boards / Bulletin Boards
The Site may provide you and other users an opportunity to submit, post, display, transmit and/or exchange information, ideas, opinions, photographs, images, video, creative works or other information, messages, transmissions or material to us, the Site or others (“Post” or “Postings”). Postings do not reflect the views of Baobab; and Baobab does not have any obligation to monitor, edit, or review any Postings on the Site. Baobab assumes NO responsibility or liability arising from the content of any such Postings nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information within such Postings on the Site. You are strictly prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. Baobab will fully cooperate with any law enforcement authorities or court order requesting or directing Baobab to disclose the identity of anyone posting any such information or materials.
16. Export Control
The Baobab Services are controlled and operated by us from our offices within the State of California. You hereby represent and warrant that: (a) you are not located in a country that is (i) subject to a U.S. government embargo (e.g., Crimea, Cuba, Iran, North Korea or Syria) or (ii) on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations; (b) you are not listed on any U.S., United Nations Security Council (UNSC), UK or EU government list of prohibited or restricted parties, including the list of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department or the U.S. Commerce Department’s Denied Persons List; and (c) you are not otherwise the target of U.S., UNSC, UK or EU economic sanctions. You may not access, download or otherwise use any Baobab Services in violation of United States, UNSC, UK or EU export control or economic sanctions laws and regulations. Software in or from the Baobab Services are further subject to U.S. export controls. No software may be downloaded or otherwise exported or re-exported in violation of applicable laws, including without limitation to any end user in a U.S. embargoed country or territory or an end user included on any U.S., UNSC, UK or EU government list of prohibited or restricted parties.
17. Binding Arbitration of All Disputes. No Class Relief.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of law provisions.
Agreement to Arbitrate
This Section 17 is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and we agree that we intend that this Section 17 satisfies the “writing” requirement of the Federal Arbitration Act. If binding arbitration is adjudged by a tribunal to be unenforceable, the provisions of Section 17 shall apply to all relevant disputes between you and us.
You and Baobab agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Baobab Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in San Francisco, San Francisco County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Baobab are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Baobab otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Baobab otherwise agree, the arbitration will be conducted in San Francisco, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Baobab submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The arbitrator may award the prevailing party attorneys’ fees and expenses, to the extent provided under applicable law.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions of the “Changes to Terms or Services” section above, We may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after we have given notice of such modifications and only on a prospective basis for claims arising from Baobab Transactions and Relationships occurring after the effective date of such notification. If any modification pursuant to this subpart (j) is deemed to be invalid, unenforceable, or illegal, then the arbitration provisions effective at the time of your agreement to these Terms shall govern any dispute or disagreement between you and us regarding Baobab Transactions or Relationships. If we make such a change, you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Baobab’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Baobab in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Confidentiality of Arbitration.
You and we agree to maintain the confidential nature of the Arbitration and shall not disclose the fact of the Arbitration, any documents exchanged as part of any mediation, proceedings of the Arbitration, the Arbitrator’s decision and the existence or amount of any Award, except as may be necessary to prepare for or conduct the Arbitration (in which case anyone becoming privy to such confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or court order.
18. Notice for California Users
Under California Civil Code Section 1789.3, California users of the Baobab Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
19. Links to Third Party Websites or Resources
The Baobab Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
(a) Applicable law. These Terms, any Additional Terms and the relationship between you and us shall be governed by the laws of the U.S. and the State of California without regard to its conflicts of law provisions. The Convention on Contracts for the International Sale of Goods does not apply to your access or use of the Baobab Services or these Terms.
(b) Venue. Subject to the arbitration provisions above, and other than small claims actions as permitted therein, any action or proceeding arising from, relating to or in connection with these Terms will be brought exclusively in the federal or state courts located in San Francisco, California, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.
(c) Limited Time to File Claims. You agree that regardless of any statute or law which establishes a different statute of limitations, to the maximum extent permitted under for connected with the use of the Baobab Services, or these Terms, or other Baobab Transactions or Relationships must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(d) Entire Agreement/ Severability. These Terms, and the additional terms referred to within these Terms, constitute the entire and exclusive understanding and agreement between Baobab and you regarding the Baobab Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Baobab and you regarding the Baobab Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
(e) Assignment. You may not assign or transfer your rights and obligations under these Terms, by operation of law or otherwise, without Baobab’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and void. Baobab may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(f) Notices. Any notices or other communications provided by Baobab under these Terms, including those regarding modifications to these Terms, will be given by Baobab: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
(g) Waiver. Baobab’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Baobab. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
21. Contact Information
If you have any questions about these Terms or the Baobab Services, please contact us at [email protected].