Terms of Service

Last Updated: October 29, 2018

These Terms of Service (“Terms”) apply to your access to and use of the website and other products and services (collectively, the “Services”) provided by Backdrop, Inc. (“Backdrop” or “we”). By using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 16. If you do not agree to these Terms, do not use our Services.

We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.

If you have any questions about these Terms or our Services, please contact us at legal@backdrophome.com.

1. Privacy

For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy.

2. Eligibility

You must be at least 13 years of age to use our Services and at least 18 years of age to submit an order. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.

3. User Accounts and Account Security

You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.

4. User Content

Our Services may allow you and other users to create, store, and share content, including messages, text, photos, videos, and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Backdrop.

You grant Backdrop and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username) may be visible to others.

You may not create, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.

5. Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:

- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;

Use or attempt to use another user’s account without authorization from that user and Backdrop;

Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;

Sell, resell or commercially use our Services;

Copy, reproduce, distribute, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;

Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;

Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;

Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;

Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;

Develop or use any applications that interact with our Services without our prior written consent;

Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;

Bypass or ignore instructions contained in our robots.txt file; or

Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

You may also share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, store or share any User Content that:

Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;

Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;

May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;

Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;

Impersonates, or misrepresents your affiliation with, any person or entity;

Contains any unsolicited promotions, political campaigning, advertising or solicitations;

Contains any private or personal information of a third party without such third party’s consent;

Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or

In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Backdrop or others to any harm or liability of any type.

Enforcement of this Section 5 is solely at Backdrop's discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.

6. Ownership; Limited License

The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Backdrop or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.

7. Trademarks

BACKDROP and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Backdrop and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.

8. Feedback

You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Backdrop or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Backdrop’s sole discretion. You understand that Backdrop may treat Feedback as nonconfidential.

9. Repeat Infringer Policy; Copyright Complaints

In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Backdrop’s designated agent as follows:

Designated Agent: Legal Department

Address: Backdrop, Inc., 247 W 30th St, STE 12A, New York, NY 10001

Telephone Number: (646) 560 - 3223

E-Mail Address: legal@backdrophome.com

Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Backdrop for certain costs and damages.

10. Third-Party Content

We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Backdrop does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.

11. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Backdrop and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Backdrop Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You agree to promptly notify Backdrop Parties of any third-party Claims, cooperate with Backdrop Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Backdrop Parties will have control of the defense or settlement, at Backdrop's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Backdrop or the other Backdrop Parties.

12. Disclaimers

Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us (please see our Limited Warranty Policy), our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, except as otherwise provided in writing by us, Backdrop does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Backdrop attempts to make your use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.

13. Limitation of Liability

To the fullest extent permitted by applicable law, Backdrop and the other Backdrop Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, incidental, or special damages or lost profits, even if Backdrop or the other Backdrop Parties have been advised of the possibility of such damages.

The total liability of Backdrop and the other Backdrop Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $100.00 or the amount paid by you to use our Services.

The limitations set forth in this Section 13 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Backdrop or the other Backdrop Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

14. Release

To the fullest extent permitted by applicable law, you release Backdrop and the other Backdrop Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “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.”

15. Transfer and Processing Data

In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.

16. Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Backdrop and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.

No Representative Actions. You and Backdrop agree that any dispute arising out of or related to these Terms or our Services is personal to you and Backdrop and that any dispute, including those relating to privacy and data security, will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.

Arbitration of Disputes. Except for small claims disputes in which you or Backdrop seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Backdrop seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Backdrop waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against Backdrop or relating in any way to the Services, including disputes arising out of relating to privacy and data security claims, you agree to first contact Backdrop and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Backdrop by email at legal@backdrophome.com or by certified mail addressed to Backdrop Inc., P.O. Box 237105 New York, NY 10023. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Backdrop cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in New York County, NY or may be conducted telephonically or via video conference for disputes alleging damages less than $100.00, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.

You and Backdrop agree that these Terms affect interstate commerce and that the enforceability of this Section 16 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

The arbitrator, Backdrop, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.

You and Backdrop agree that for any arbitration you initiate, you will pay the filing fee and Backdrop will pay the remaining JAMS fees and costs. For any arbitration initiated by Backdrop, Backdrop will pay all JAMS fees and costs. You and Backdrop agree that the state or federal courts of the State of New York and the United States sitting in New York County, NY have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Backdrop will not have the right to assert the claim.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 16 by emailing us at legal@backdrophome.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 17.

If any portion of this Section 16 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 16 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 16; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 16 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 16 will be enforceable.

17. Governing Law and Venue

Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of New York, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of New York and the United States, respectively, sitting in New York County, New York.

18. Terms of Sale

In addition, the following terms apply to your purchase of the products offered on our website (“Products”).

Product Descriptions. We try to make the Services thorough, accurate, and helpful to our customers. Nonetheless, there may be times when certain information contained on the Site may be incorrect, incomplete, inaccurate, or appear inaccurate because of the browser, hardware, or other technology that you use. We apologize in advance for any such errors that may result in an incorrect price, inaccurate description, item unavailability or otherwise affect your order. We reserve the right to correct errors (whether by changing information on the Services or by informing you of the error and giving you an opportunity to cancel your order) or to update Product information at any time without notice.

Availability and Pricing. Backdrop reserves the right to change the prices and available Products at any time. Quantities of some Products may be limited and stock cannot always be guaranteed. Products offered for sale on this Services are for sale only in the United States and all prices are quoted in U.S. dollars. We may occasionally make errors in the stated prices on the Services. If a Product’s correct price is higher than the listed price, we will, in our discretion, either confirm the correct price with you or cancel your order and notify you of such cancellation.

Purchasing Products. The display of Products on the Services invites you to make us an offer to buy the Products. Your order is an offer to buy the Products, which we accept only by shipping the Products ordered. Any confirmation that you receive after placing an order does not constitute an acceptance of your offer, and is subject to correction before shipment in the event of inaccuracies, errors, Product unavailability, or for any other reason.

Orders. We have the right to refuse or limit any orders and limit quantities. We will not be liable if a Product is unavailable or if shipment is delayed. All orders are non-cancelable; we may grant or deny cancellation requests in our sole and absolute discretion. We reserve the right to provide substantially similar products to fulfill your order.

Returns. All returns will be subject to the Backdrop Return Policy.

Damaged or Incomplete Shipment. If you receive a damaged or incomplete shipment of Products, or if you are otherwise unhappy with any Product, please contact us. We must receive notice of a damaged or incomplete shipment within two (2) weeks of receipt (as shown on by our common carrier’s shipping information). Any refunds or replacements are made solely in our discretion.

Payment. You authorize us (and any payment processor) to charge your payment card for all purchases you make. We accept the forms of payment stated on the Services and, for credit card payments, charge your credit card when your order is processed. The bank issuing your credit card may control when to release funds in the case of an order cancellation or refund. We reserve the right to use the payment information you provide us in connection with this payment to provide better service to you should you wish to use our service again in the future and to protect us from fraud and other losses. Completion of a payment transaction is contingent upon: (a) you providing complete personal, account, transaction and any other information needed, (b) authorization of the payment by your credit or debit card company, and (c) acceptance of your payment. You may cancel your payment prior to your final submission of it to us. We may, in our sole discretion, cancel your payment at any time by providing notice to you through your contact information or by a notice when you attempt to make a payment. We may cancel a payment or prevent you from initiating future payments for any reason, including, without limitation, the following: (i) if you attempt to use the Services in breach of any applicable law or regulation, including the card network rules or regulations; (ii) if you use the Services in breach of these Terms; (iii) if we suspect fraudulent, unlawful or improper activity regarding a payment; (iv) if we detect, in our sole discretion, that your payments have excessive disputes, high reversal rates or present a relatively high risk of losses; or (v) failure to cooperate in an investigation or provide additional information when requested.

Transfer of Title and Risk of Loss/Damage. Title to and the risk of loss/damage of all Products passes from us to you at the time we deliver the products to the common carrier for shipment. By purchasing products on the Site for shipment, you are asking us to engage a common carrier to deliver your order. In doing so, we are providing a service to and acting on behalf of you. We reserve the right to choose any and all procedures, packaging and the common carrier of sold products. We may not be able to have your order shipped to a post office box, to certain addresses or on certain days. We reserve the right to ship your order in multiple boxes or shipments.

Taxes. Stated prices do not include any customs duties, sales, use, value-added, excise, federal, state, local or other taxes. You are solely responsible for the payment of such taxes related to your purchase. We have the right to charge you for any taxes that we believe we are required to pay or collect related to your purchase.

Personal Use Only. Products are for your personal use only. You agree not sell or resell any products you purchase or otherwise receive from us. Except where prohibited by law, we may limit the quantity of Products available for purchase. We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that may result in a violation of these Terms, as we determine in our sole discretion.

19. Modifying and Terminating our Services

We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.

20. Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

21. Miscellaneous

The failure of Backdrop to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. Under California Civil Code Section 1789.3, California consumers 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 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.

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