Terms of Service
Welcome, and thank you for your interest in Bariendo Inc. (“Bariendo,” “we,” or “us”) and our website at bariendo.com, along with our related websites, hosted applications, mobile or other downloadable applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Bariendo regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING BARIENDO’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND BARIENDO’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY BARIENDO AND BY YOU TO BE BOUND BY THESE TERMS.
YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF BARIENDO AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS/CALLS WILL INCLUDE APPOINTMENT AND PRESCRIPTION REMINDERS, SERVICE RECOMMENDATIONS, INSTRUCTIONS, AND DETAILS, LABORATORY RESULTS, AND OTHER STANDARD COMMUNICATIONS FROM US. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 16 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND BARIENDO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. Bariendo Service Overview
Bariendo offers a suite of services to support your endoscopic weight loss procedure, including in-person and virtual consultations, health monitoring, scheduling assistance, and more.
2. Eligibility
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your use of the Service is in compliance with any and all applicable laws and regulations.
3. Accounts and Registration
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, contact details, birthday, and other health information to help us determine your eligibility for specific services. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at [email protected].
4. General Payment Terms
Certain features of the Service may require you to pay fees. In order to pay such fees, you will be asked to supply certain information, including but not limited to credit card or other payment information. You agree to pay, using a Bariendo-approved payment method, all charges incurred by you or any other user of your credit card or other payment mechanism issued to you, including without limitation any applicable taxes and shipping, handling, and processing charges, if any, relating to such purchases and transactions. Payment transactions may be processed by a third-party payment processor, such as Stripe, Inc. (“Stripe”), in which case, by making a payment through the Service, you agree to be bound by and subject to such payment processor’s terms of service and privacy policy (which, in the case of Stripe, are available at Stripe End User Terms of Service and Stripe Privacy Policy). You may be eligible to make payments through a financing plan offered by a third-party provider, such as Cherry Technologies, Inc. Your use of any financing plan offered by a third-party provider is governed by that third-party provider’s terms and conditions, and we accept no responsibility or liability for such use. We reserve the right to refuse to process or complete any transaction, and to cancel any transaction, in our sole discretion. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as provided by our Refund and Return Policy and as required by law.
4.1 Price
Bariendo reserves the right to determine pricing for the Service. Bariendo will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our Pricing page periodically for current pricing information and any financing options available to you. Bariendo may change the fees for any feature of the Service, including additional fees or charges, if Bariendo gives you advance notice of changes before they apply. Bariendo, at its sole discretion, may make promotional offers with different features and different pricing to any of Bariendo’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Authorization
You authorize Bariendo to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Bariendo, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Bariendo may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.3 Delinquent Accounts
Bariendo may suspend or terminate access to certain fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5. License
5.1 Limited License
Subject to your complete and ongoing compliance with these Terms, Bariendo grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Service (whether installed by you or pre-installed on your mobile device by the device manufacturer or a wireless telephone provider) on a mobile device that you own or control; and (b) access and use the Service.
5.2 License Restrictions
Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
5.3 Feedback
We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Bariendo an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
6. Ownership; Proprietary Rights
The Service is owned and operated by Bariendo. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Bariendo (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Bariendo or its third-party licensors. Except as expressly authorized by Bariendo, you may not make use of the Materials. There are no implied licenses in these Terms and Bariendo reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms
7.1 Third-Party Services and Linked Websites
Bariendo may provide tools through the Service that enable you to export information, including User Content and personal health information, to third-party services, such as weight monitoring, prescription, or laboratory services that Bariendo may utilize. By using one of these tools, you hereby authorize that Bariendo to transfer that information to the applicable third-party service. Third-party services are not under Bariendo’s control, and, to the fullest extent permitted by law, Bariendo is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Bariendo’s control, and Bariendo is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any information with such third-party services. Once sharing occurs, Bariendo will have no control over the information that has been shared.
7.2 Third-Party Software
The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. User Content
8.1 User Content Generally; Limited License
The Service may permit users to submit content to the Service, including messages through the Service’s chat function (“User Content”). By submitting User Content to or via the Service, you grant Bariendo a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, and transfer your User Content, in whole or in part, for the purpose of providing and developing the Service. For the avoidance of doubt, User Content does not include any personal data or health information that you submit, which Bariendo will maintain in accordance with our Privacy Policy, and other information governed by the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, including the rules and regulations enacted under it.
8.2 Monitoring Content
Bariendo does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Bariendo reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Bariendo chooses to monitor the content, then Bariendo still assumes no responsibility or liability for content, or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy. Bariendo may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Service without any liability to the user who Posted such User Content to the Service or to any other users of the Service. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Bariendo with respect to your User Content.
9. Communications
9.1 Text Messaging & Phone Calls
You agree that Bariendo and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational calls or messages about your use of the Service, as well as marketing calls or messages. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM Bariendo, YOU CAN EMAIL [email protected] OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM Bariendo, YOU CAN EMAIL [email protected] OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing calls and texts is not a condition of any purchase on or use of the Service.
9.2 Push Notifications
When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
9.3 Email
We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct
BY USING THE SERVICE, YOU AGREE NOT TO
10.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
10.2 violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
10.3 access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Bariendo;
10.4 interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
10.5 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
10.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity;
10.7 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
10.8 attempt to do any of the acts described in this Section 10 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 10 (Prohibited Conduct).
11. Modification of Terms
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this Section 11 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
12. Term, Termination, and Modification of the Service
12.1 Term
These Terms are effective beginning when you accept the Terms or first access or use the Service and end when terminated as described in Section 12.2 (Termination).
12.2 Termination
If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Bariendo may, at its sole discretion, terminate these Terms, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination.
12.3 Effect of Termination
Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Bariendo any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3 (Feedback), 6 (Ownership; Proprietary Rights), 12.3 (Effect of Termination), 13 (Indemnity), 14 (Disclaimers; No Warranties by Bariendo), 15 (Limitation of Liability), 16 (Dispute Resolution and Arbitration), and 17 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you submit to the Service since upon termination of your account, you may lose access rights to any User Content you submitted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
12.4 Modification of the Service
Bariendo reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Bariendo will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you submit to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you submitted to the Service.
13. Indemnity
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Bariendo, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Bariendo Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Disclaimers; No Warranties by Bariendo
14.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. BARIENDO DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. BARIENDO DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND BARIENDO DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
14.2 By using the Service, you may obtain information from third parties, such as doctors and other medical experts. Bariendo exerts no editorial control over the opinions, advice, statements, or other information provided by such third parties. Bariendo has not independently verified any third-party content provided to you, and makes no representation as to its adequacy, fairness, accuracy, or completeness. If you have any questions regarding your health or a medical condition or a medical procedure, you should always seek the advice of your physician or other qualified healthcare professional. You should never delay obtaining medical advice or disregard any medical advice because of something you have or have not read from Bariendo. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR BARIENDO ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE BARIENDO ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE OR YOUR RELIANCE ON ANY PROVIDED INFORMATION. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA.
14.3 The Service connects you with medical professionals, but this functionality does not imply Bariendo’s (a) endorsement of such professionals or (b) verification of their credentials, qualifications, or abilities. Additionally, the Service offers you access to third-party prescription and laboratory service providers, but Bariendo cannot always guarantee the availability of such service providers or their offerings.
14.4 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 14 (DISCLAIMERS; NO WARRANTIES BY BARIENDO) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Bariendo does not disclaim any warranty or other right that Bariendo is prohibited from disclaiming under applicable law.
15. Limitation of Liability
15.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE BARIENDO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY BARIENDO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
15.2 TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE BARIENDO ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO BARIENDO FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (B) US$100.
15.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
16.1 Generally
Except as described in Section 16.2 (Exceptions) and 16.3 (Opt-Out), you and Bariendo agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Bariendo ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions
Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Opt-Out
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Bariendo Inc., Attention: Legal Department – Arbitration Opt-Out, 225 Woolsey St, San Francisco, CA 94134 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Bariendo receives your Opt-Out Notice, this Section 16 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
16.4 Arbitrator
This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at adr.org, by calling the AAA at +1-800-778-7879, or by contacting Bariendo.
16.5 Commencing Arbitration
Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Bariendo’s address for Notice is: Bariendo Inc., 225 Woolsey St, San Francisco, CA 94134. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Bariendo may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Bariendo will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
16.6 Arbitration Proceedings
Any arbitration hearing will take place in the county and state of your [residence/billing address] unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your [residence/billing address]. During the arbitration, the amount of any settlement offer made by you or Bariendo must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
16.7 Arbitration Relief
Except as provided in Section 16.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Bariendo before an arbitrator was selected, Bariendo will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
16.8 No Class Actions
YOU AND Bariendo AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Bariendo agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.9 Modifications to this Arbitration Provision
If Bariendo makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Bariendo’s address for Notice of Arbitration, in which case your account with Bariendo will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.10 Enforceability
If Section 16.8 (No Class Actions) or the entirety of this Section 16 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Bariendo receives an Opt-Out Notice from you, then the entirety of this Section 16 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17.2 (Governing Law) will govern any action arising out of or related to these Terms.
17. Miscellaneous
17.1 General Terms
These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Bariendo regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
17.2 Governing Law
These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Bariendo submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
17.3 Privacy Policy
Please read the Bariendo Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Bariendo Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
17.4 Additional Terms
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
17.5 Consent to Electronic Communications
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
17.6 Contact Information
The Service is offered by Bariendo Inc., located at 225 Woolsey St, San Francisco, CA 94134. You may contact us by sending correspondence to that address or by emailing us at [email protected].
17.7 Notice to California Residents
If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
17.8 No Support
We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
17.9 International Use
The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
18. Notice Regarding Apple
This Section 18 (Notice Regarding Apple) only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Bariendo only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.