Welcome to the FamilyByDesign website (the “Site”). We hope you will have a terrific experience as part of our community. Please review these Terms of Service thoroughly before commencing use of our Site.
In these Terms of Service, “FamilyByDesign” means FamilyByDesign Ventures, Inc., a Delaware corporation that provides services under the names FamilyByDesign, Family By Design, and familybydesign.com (hereinafter, “FamilyByDesign” or the “Company”). We provide such services to you subject to the following conditions. Before you may use the Site, you must read and accept all of the terms and conditions in, and linked to, these Terms of Service (“TOS” or “Terms”) and the linked Privacy Policy and Subscription Policy, which are incorporated into and made part of these Terms. We strongly advise that in addition to reading the TOS, you also access and read the linked information. If the TOS conflict with any other documents or agreements, the TOS will control for the purposes of usage of the Site. If you do not agree to be bound by these TOS and the Privacy Policy, you may not use the Site in any way—regardless of whether you choose to register as a Member of the Site.
These Terms constitute an electronic contract between you and FamilyByDesign. By accessing or using the Site, you indicate your unconditional acceptance of these Terms. Please review these Terms carefully, including the arbitration provision in Section 16, which describes how disputes will be resolved between us, and that no class actions may be brought under these Terms. We reserve the right, in our sole discretion, to update or revise these Terms of Service. Your continued use of the Site following the posting of any changes to the Terms of Service constitutes acceptance of those changes.
1. Description of Services.
On the Site, FamilyByDesign enables adults who access and use the Site for any purpose (“Site Users”) to read information about starting a family with a non-romantic partner (“co-parenting” or “known donor” relationships, collectively referred to as “parenting partnerships”), meet others interested in finding a compatible co-parent or known donor, and interact directly with professionals, co-parents, and other Site Users to discuss, ask questions, and receive answers about co-parenting and known donors. Collectively, all of these services are referred to in these TOS as the “Service” or “Services”. You are responsible for obtaining access to the Site, and paying any third-party fees, such as Internet service provider or airtime charges, that may apply to obtain such access. In addition, you must provide and are responsible for all equipment necessary to access the Site.
Note that all content and information on the Site, and answers on the Site provided by FBD Affiliates (as defined below) are for informational purposes only, and are not intended as advice which you should rely upon for your personal situation. We strongly recommend you seek personal, face-to-face counsel for advice on your personal situation. You rely on any site content, information, or advice provided on the Site at your own risk. Please see Sections 4, 7, 9, 10, 11 and 12 for more information on FamilyByDesign’s limitations on liability in regards to Site content.
2. Use of the Site.
(a) Limited License; Consent to Email Communications.
FamilyByDesign grants you a limited license to access and make personal use of the Site and the Service. You may not use the Site for any purpose that is unlawful or prohibited by these Terms of Service, or to solicit the performance of any illegal activity, activity that is competitive in any manner to FamilyByDesign, or other activity which infringes on the rights of FamilyByDesign or others. Once you complete and submit your registration, you have opted in to receive email communication from FamilyByDesign, unless and until you affirmatively opt out of such communications under the terms of the Privacy Policy.
(b) Prohibited Uses.
Notwithstanding any other rights or restrictions in these Terms of Service, you may not use this Site to: (i) transmit via or through the Site any information, data, text, images, files, links, or software except in connection with your authorized use of this Site or otherwise in response to specific requests for information by us; (ii) introduce to the Site or any other computer or web site viruses, worms, Trojan horses and/or any kind of harmful code; (iii) obtain unauthorized access to any computer system; (iv) impersonate any other person, including but not limited to, a registered user of this Site or an employee of FamilyByDesign; (v) invade the privacy or violate any personal or proprietary right (including intellectual property rights) of any person or entity; (vi) misrepresent the identity of a user or use a false e-mail address; (vii) tamper with or obtain access to this Site or any component of this Site; (viii) conduct fraudulent activities; (ix) collect or harvest information regarding other users of the Site for any reason whatsoever, including, without limitation, for sending such users unsolicited commercial e-mail; (x) copy or publish any information, articles, or other content that appears on the Site without the written consent of FamilyByDesign; (xi) download or copy account information for the benefit of another vendor or any other third party (except for Providers with the explicit consent of the account holder); (xii) commit any action that imposes or may impose (in FamilyByDesign’s sole discretion) an unreasonable or disproportionately large load on FamilyByDesign’s infrastructure; or (xiii) use data mining techniques, robots, or similar data gathering and extraction tools.
You may not bypass any measures used by FamilyByDesign to prevent or restrict access to the Site. Any unauthorized use by you shall terminate the permission or license granted to you by FamilyByDesign.
(c) Responsibility For Member Account.
You are responsible for maintaining the confidentiality of your account, including your username and password. You agree to accept responsibility for all activities that occur under your account or password. You agree to immediately notify us in the event of any unauthorized use of your account or other breach of security. Because of this, we strongly advise that if you are logged in as a Member, you exit or “log out” from your account at the end of each session.
3. Membership Eligibility.
(a) Requirements for Use and Membership.
The “matching” portion of the Site (titled as the “Find” portion of the Site), whereby a Site User creates a member profile in order to find and interact with potential parenting partners, is available to Site Users who are 18 years and older, who have properly registered with the Site for its matching services and who have not been previously suspended or removed by FamilyByDesign for any reason (a “Member”). By becoming a Member you represent and warrant that you are of legal age, that you have never been convicted of a felony and that you are not required to register as a sex offender with any government entity. If you do not meet the above qualifications, or if your use of the Site or Membership is prohibited by the laws of the United States or other applicable jurisdiction, you may not use the Service or Site. In consideration of your use of the Site, you represent that you are of legal age to form a binding contract and meet the criteria listed above.
(b) Accuracy of Account.
You agree to provide true, accurate, current and complete information about yourself as prompted by the Site’s registration form and other forms on the Site or as otherwise provided by FamilyByDesign. If you provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete), or if FamilyByDesign has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, FamilyByDesign has the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof). FamilyByDesign reserves the right to refuse service, terminate accounts, or remove or edit content in its sole discretion.
(c) One Account Per User.
Site Users may not have more than one active Member account. FamilyByDesign reserves the right to revoke or prohibit your membership for any reason at any time, without notice, but, in particular, upon any violation of any of these Terms of Service or the Privacy Policy. Additionally, users are prohibited from selling, trading, or otherwise transferring any FamilyByDesign account to, or sharing any such account with, another party.
4. Site User-Submitted Content.
(a) Responsibility For and Treatment Of Content.
The Site provides Site Users (a designation that includes “Members” as well as those who use the Site without becoming a Member) the ability to send messages and post information and pictures on their profile and in other areas of the Site. By accessing the Site, you acknowledge that you are solely responsible for your profile, messages, photos, notes, text, information, opinions, ideas and any other content you post, upload, submit, publish, or display (hereinafter “post”) on or through the Site, or transmit to or share with other Site Users (collectively, the “Site User Content” or “Content”). Any Site User Content that is posted will not be treated as confidential. FamilyByDesign has the right, but not the obligation, to monitor and decline, edit, or remove (without notice) all or any portion of any Site User Content for any reason or no reason. In particular, FamilyByDesign may remove any Site User Content that it believes, in its sole discretion, violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Site Users. If FamilyByDesign chooses at any time, in its sole discretion, to monitor Site User Content, it still has no responsibility for the Site User Content or for the conduct of the Site User posting Site User Content or to edit or remove any Site User Content, except in compliance with Section 15 below. Family by Design reserves the right at any time in its sole discretion to block use from certain IP addresses in order to protect the integrity of the Service.
(b) Prohibited Content.
You agree not to use the Site to post Site User Content or transmit to any person anything containing (i) libelous or otherwise unlawful, abusive, sexually oriented, racially offensive, threatening, harassing, obscene or illegal material; (ii) advertisements of any kind; (iii) personal information (such as social security numbers, addresses, last names, phone numbers, email addresses, URLs, etc.); (iv) confidential information of FamilyByDesign, its subsidiaries, or affiliates; (v) any chain letters, pyramid schemes, spam, contests, or promotional material; (vi) messages that offer unauthorized downloads of any copyrighted or private information; (vii) material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity) and (viii) any information similar or related to the foregoing.
The following is a partial list of the kind of Content that is illegal or prohibited on the Site. FamilyByDesign reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending Content or communication from the Site and terminating the membership of such violators. It includes, but is not limited to, Content that:
• is patently offensive to the online community, such as Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
• harasses or advocates harassment of another person;
• involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”;
• promotes information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
• promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
• contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
• provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18;
• provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
• solicits passwords or personal identifying information for commercial or unlawful purposes from other users; and
• engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
(c) Legality and Accuracy of Content.
Your use of the Service, including but not limited to the Content you post on the Service, must be in accordance with any and all applicable laws and regulations.
You agree not to provide inaccurate, misleading or false information to FamilyByDesign or to any Site User. If information provided to FamilyByDesign, or another Site User, subsequently becomes inaccurate, misleading or false, you agree to promptly notify FamilyByDesign of such change.
(d) Advertising and Solicitation Prohibited.
You may not engage in advertising to, or solicitation of, other Site Users. This includes but is not limited to solicitation or advertising to buy or sell any products or services through the Service, or invitations to attend parties or other social functions or networking events for commercial purposes or any other purpose that could be deemed competitive to FamilyByDesign’s Services. You may not transmit any chain letters or junk email to other Site Users. Although FamilyByDesign cannot monitor the conduct of its Site Users off the Site, it is also a violation of these rules to use any information obtained from the Service in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any Site User without their prior explicit consent. In order to protect our Site Users from such advertising or solicitation, we reserve the right to restrict the number of emails which a Site User may send to other Site Users in any 24-hour period to a number which we deem appropriate in our sole discretion.
If you breach the terms of this subsection and send or post unsolicited bulk email, “spam” or any other unsolicited communications for commercial purposes or any other purpose that could be deemed competitive to FamilyByDesign’s Services through the Services, you acknowledge that you will have caused substantial harm to FamilyByDesign, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay FamilyByDesign US$50.00 for each such unsolicited communication you send through the Services.
(e) Grant of License by You.
By posting Content to any public area of FamilyByDesign, you automatically grant, and you represent and warrant that you have the right to grant, to FamilyByDesign, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that public posting and use of your content by FamilyByDesign will not infringe or violate the rights of any third party, and that any Content you provide will not include or attach anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in the foregoing paragraph.
UNDER NO CIRCUMSTANCE SHALL ANY DISCLOSURE OF ANY SITE USER CONTENT TO FAMILY BY DESIGN BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION OR ATTRIBUTION. BY SUBMITTING ANY SITE USER CONTENT TO OR THROUGH FAMILY BY DESIGN, YOU REPRESENT AND WARRANT THAT ALL YOUR SITE USER CONTENT WILL NOT VIOLATE ANY RIGHT OF ANY THIRD PARTY, INCLUDING COPYRIGHT, TRADEMARK, PRIVACY, OR OTHER PERSONAL OR PROPRIETARY RIGHTS. YOU REPRESENT AND WARRANT THAT NO SITE USER CONTENT WILL BE OR CONTAIN LIBELOUS OR OTHERWISE UNLAWFUL, ABUSIVE, OR OBSCENE MATERIAL. YOU ARE AND SHALL REMAIN SOLELY RESPONSIBLE FOR YOUR SITE USER CONTENT. YOU REPRESENT AND WARRANT TO FAMILY BY DESIGN THAT FAMILY BY DESIGN IS FREE TO USE THE SITE USER CONTENT, EITHER AS SUBMITTED OR AS EDITED BY FAMILYBYDESIGN, AND IMPLEMENT ANY SUGGESTIONS CONTAINED THEREIN, IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY FAMILY BY DESIGN, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY AND WITHOUT ANY COMPENSATION TO YOU.
5. FamilyByDesign Affiliates.
(a) The FamilyByDesign Affiliates.
From time to time, FamilyByDesign may enter into agreements with medical, legal, family counseling, and other professionals, as well as co-parents and known donors, inviting them to share their insight and advice with our Site Users. Such professionals are referred to herein as “FBD Affiliates”, and their liability is limited as described below. Site Users rely on content provided by FBD Affiliates at their own risk, as described below.
(b) No Affiliation In Absence of Agreement.
Notwithstanding the foregoing paragraph, FamilyByDesign is not affiliated with websites or third parties that sell or advertise our services or provides services without a written agreement with us. FamilyByDesign reserves the right to void all service policies, return policies, and other policies for orders and FamilyByDesign products or services that were obtained through unauthorized parties. FamilyByDesign is not responsible for any representations by unauthorized parties.
6. Subscription Policy & Cancellation. Access to certain Services on the site may require a paid subscription. Such subscription and any cancellation or refunds associated with it shall be governed by our Subscription Policy, which is fully incorporated herein by reference. In the event of a conflict between the terms of the Subscription Policy and these TOS, the terms of these TOS shall prevail.
7. Accuracy of Content.
Excluding Site User Content, the information on this Site is believed to be complete and reliable; however, the information may contain typographical errors and other errors or inaccuracies. We will use reasonable efforts to correct errors as soon as practicable. We reserve the right to: (i) correct any errors, inaccuracies, or omissions; and (ii) make changes to content or other information without obligation to issue any notice of such changes. Notwithstanding the foregoing, we are not responsible for inaccuracies contained in any information appearing on the Site.
8. Proprietary Rights.
(a) FamilyByDesign’s Proprietary Rights.
Excluding Site User Content, you acknowledge and agree that the content, software, materials and other components (including but not limited to our logos, graphics, videos, music, button icons, and page headers) available on the Site are the highly valuable property of FamilyByDesign and/or its affiliates, subsidiaries, or licensors and are protected by copyrights, trademarks, service marks, or other proprietary rights and laws. You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any content or materials on the Site (including software and code), without the express written permission of FamilyByDesign.
(b) Proprietary Rights of Third Parties.
All trademarks not owned by FamilyByDesign that appear on the Site are the property of their respective owners. Use of the content and materials for any purpose not expressly permitted in these Terms of Service is prohibited. We are not liable for any infringement of copyrights, trademarks, trade dress or other proprietary or intellectual property rights arising out of content posted on or transmitted through the Site by Site Users or FBD Affiliates.
9. Links to Third-Party Websites; No Implied Endorsements.
This Site may contain links to other websites on the Internet. You acknowledge that we have no control over such websites and that we are not responsible for the accuracy, content, legality, or any other aspect of any linked website. Reference to any website, products, services, providers or other information by name, link, trade name, trademark or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof or any affiliation therewith by FamilyByDesign.
10. Indemnification by You; No Third Party Beneficiaries.
By using this Site, you agree to indemnify, hold harmless, and defend FamilyByDesign, its subsidiaries, divisions, and affiliates, and their respective officers, directors, employees, successors, agents, subsidiaries, partners, contractors, vendors, manufacturers, distributors, representatives, affiliates, and the FBD Affiliates (collectively, the “FBD Indemnitees”) from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim (including without limitation, claims made by third parties for infringement of intellectual property rights) by a third party that arises in connection with (i) your use or misuse of the Site; (ii) your reliance upon any content or other information on this Site for any purpose; (iii) a dispute with a Site User; (iv) your breach of the Terms of Service; (v) your violation of any law or the rights of a third party; or (vi) your Site User Content. You agree to cooperate as fully as reasonably required in the defense of any claim. FamilyByDesign reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you for which you will remain responsible for indemnifying and holding harmless the FBD Indemnitees.
You agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to these Terms.
11. Disclaimers.
(a) We Are Not Responsible for Content and Conduct of Others.
FamilyByDesign is not and shall not be at any time responsible or liable for any loss or damage of any kind, including personal injury or death, (whether in tort, contract, or strict liability) arising out of or related to any Site User Content or any other content appearing on this site, or to any act or omission by Site Users of the Site, by FamilyByDesign or by any third party or by any of the equipment or programming associated with or utilized by the Site. In particular, Family by Design is not responsible for the conduct, whether online or offline, of any user of the Site including any Member of the Service. Any content submitted by our Site Users or FBD Affiliates does not necessarily reflect the opinions or policies of FamilyByDesign.
(b) We Are Not Responsible for Technical Errors.
FamilyByDesign assumes no responsibility for any error, omission, interruption, delay, communications line failure, deletion, defect, delay in operation or transmission, theft or destruction or unauthorized access to, or alteration of, any Site User Content or other Site User communications. FamilyByDesign is not responsible for any problems or technical malfunction of any telephone or cable network or lines, computer systems, servers or providers, computer equipment, software, failure of any email or other functions due to technical problems or traffic congestion on the Internet or on the Site, including any injury or damage to Site User’s or other person’s computer related to or resulting from participation on or through the Site.
(c) We Provide the Site and Services As-Is; No Warranty.
The Site, its content and all text, images, merchandise and other information on, accessible from or available through the Site are provided on an “as available” and “as is” basis without warranty of any kind, either express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Specifically, but without limitation, FamilyByDesign does not warrant that: (i) the information available on the Site is free of errors; (ii) the functions contained on this site will be uninterrupted or free of errors; (iii) defects will be corrected, or (iv) the Site or the server(s) and other technology that makes it available will always function as intended or are free of viruses or other harmful components.
12. Limitation of Liability.
By accessing or using this Site, or by purchasing or using Third Party Products, you accept unconditionally the following general and specific limitations of liability:
(a) You rely on content and advice at your own risk.
The Site provides a forum for advice, opinions, statements and other information and content provided by affiliates, professionals and Site Users. Also, from time to time, employees and founders of FamilyByDesign may provide content for the Site, and although efforts are made to provide accurate content, such employees and founders are not licensed professionals and do not represent that the content is accurate or suitable for your individual circumstances. FamilyByDesign does not (i) guarantee the accuracy, completeness, or usefulness of any information found on the Site, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Site. Under no circumstances shall FamilyByDesign, its employees and founders, or its affiliates (including the FBD Affiliates and their employers and employees) be responsible for any loss or damage resulting from your reliance on information or other content posted on the Site or transmitted to or by any Site Users or third parties. This includes any loss or damage resulting from your reliance on information provided by FBD Affiliates or FamilyByDesign employees or founders in response to a question that you may have posed to one or more of the FBD Affiliates.
Entering into a parenting partnership is a major life decision; accordingly, we strongly encourage you to arrange for personal, face-to-face consultations with knowledgeable professionals before taking any action, whether medical, legal or otherwise, in your search for the desired co-parenting arrangement.
(b) You interact with other Site Users at your own risk.
The Site also provides a forum for interacting with other Site Users. You are solely responsible for your interactions with other Site Users or other individuals you encounter on or through the Site, whether on the Site or in person. You understand that FamilyByDesign does not conduct criminal background checks on Site Users, nor do we otherwise inquire into the backgrounds of Site Users or attempt to verify the veracity of any statements made by its Site Users. While FamilyByDesign does offer the opportunity for Members to “verify” their profile by submitting a copy of a driver’s license or passport identification, we do not conduct any verification checks as to whether such submitted information represents the Member’s true identity and therefore you rely on the veracity of this Member-provided information at your own risk.
FamilyByDesign makes no representations or warranties regarding the conduct of any Site User or the compatibility of any Member with any other current or future Member. Notwithstanding the foregoing, FamilyByDesign reserves the right to use publicly-available records to conduct criminal background checks, sex offender register searches, or otherwise screen Site Users at any time, using any legal means.
In no event shall FamilyByDesign by liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Site, including without limitation, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other registered users of the Site or any other persons you meet through the Site. You agree to take all reasonable precautions in all interactions with other Site Users of the Site, especially if you decide to meet offline or in person, and agree to review FamilyByDesign’s Safety Tips prior to interacting with other Site Users. You acknowledge that you should not provide any personal or financial information (for example, credit card or bank account information) to other Site Users.
You understand that FamilyByDesign makes no guarantees, either express or implied, regarding your ultimate compatibility with individuals you meet through the Site.
(c) You purchase and use Third Party Products at your own risk.
As a service to the co-parenting community, FamilyByDesign may from time to time sell products on this Site that are manufactured and marketed by third parties (“Third Party Products”). FamilyByDesign is not responsible for examining or evaluating any products not manufactured by FamilyByDesign, and does not assume any responsibility or liability for the consequences of purchasing or using any such Third Party Products. Prior to purchasing or using any Third Party Products, you should carefully evaluate the appropriateness of their use for you, including by consulting your health, legal, or financial professionals, as appropriate.
THE SERVICES AND PRODUCTS AVAILABLE THROUGH THE SITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE ARE PROVIDED BY FAMILY BY DESIGN ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. FAMILY BY DESIGN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR PRODUCTS, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE INFORMATION, CONTENT, MATERIALS, SERVICES AND PRODUCTS AVAILABLE ON THE SITE IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, FAMILY BY DESIGN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FAMILY BY DESIGN WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY PRODUCT OR SERVICE OBTAINED THROUGH THE SITE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
IN NO EVENT SHALL FAMILY BY DESIGN, ITS SUBSIDIARIES, DIVISIONS, OR AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES, OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE BE LIABLE TO ANY USER OF THE SITE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITE OR ANY INFORMATION CONTAINED THEREON OR STORED OR MAINTAINED BY FAMILY BY DESIGN, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF FAMILY BY DESIGN HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN NO EVENT SHALL THE TOTAL LIABILITY OF FAMILY BY DESIGN, ITS SUBSIDIARIES, OR AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THIS SITE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT YOU PAID TO FAMILY BY DESIGN IN CONNECTION WITH THE APPLICABLE SERVICE, GOOD, OR OTHER OFFERING GIVING RISE TO SUCH LIABILITY, OR, IF YOU HAVE NOT PAID FAMILY BY DESIGN FOR THE USE OF ANY SUCH SERVICES, GOODS, OR OTHER OFFERING, THE AMOUNT OF US$25.00 OR ITS EQUIVALENT.
WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL FAMILY BY DESIGN, ITS SUBSIDIARIES OR AFFILIATES (INCLUDING THE FBD AFFILIATES) OR THEIR RESPECTIVE OFFICERS, FOUNDERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES, OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE HAVE ANY LIABILITY FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR OTHERWISE INCURRED IN CONNECTION WITH THE LOSS OF ANY DATA OR INFORMATION CONTAINED IN YOUR ACCOUNT OR OTHERWISE STORED BY OR ON BEHALF OF FAMILY BY DESIGN.
YOU HEREBY ACKNOWLEDGE THAT THIS SECTION 12 APPLIES TO ALL CONTENT, INFORMATION, MATERIALS, SERVICES, AND PRODUCTS AVAILABLE THROUGH THE SITE. BECAUSE SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH STATES SOME OR ALL OF THE ABOVE DISCLAIMERS OR EXCLUSIONS MAY NOT APPLY AND LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
13. International Use.
We make no representation that information on this Site is appropriate or available for use outside the United States. Those who choose to access this Site from outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
14. Term and Termination; Survival; Unavailability of Site.
(a) Term and Termination.
These Terms will remain in full force and effect from the first time that you access the Site and shall remain in effect in perpetuity. However, FamilyByDesign retains the right to modify these Terms at any time, at which point the modified Terms shall supersede the previous Terms and the modified Terms shall remain in effect in perpetuity or until the modified Terms are themselves altered on their own terms. We may, in our sole discretion, terminate or suspend your use or access to all or part of the Site or your account or membership, for any reason, including without limitation, breach of these Terms of Service. You may terminate your membership at any time, for any reason, by following the instructions on the Site on how to terminate your membership, or you may provide us with written notice using the email or postal address listed at the bottom of these Terms. If at any time, we notify you that your access to and/or use of the Site or your account is terminated, you must cease and desist from all such access and/or use immediately.
(b) Survival.
In the event these Terms of Service or your membership or account are terminated (whether by you or by us, and whether for cause or without cause) the restrictions regarding intellectual property matters, the representations and warranties, indemnities, and limitations of liabilities set forth herein (as well as any other of your obligations which by their nature should survive termination) will survive termination.
(c) Unavailability of Site.
We may alter, suspend, or discontinue this Site in whole or in part, at any time and for any reason, without notice or cost. In addition, the Site may be temporarily unavailable from time to time for maintenance or other reasons. You agree that FamilyByDesign shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.
15. Copyright; DMCA Procedures.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that any materials on this Site infringe your copyright, you may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative, and must: (a) identify the allegedly infringing materials; (b) indicate where on the Site the infringing materials are located; (c) provide your name and contact information; (d) state that you have a good faith belief that the materials are infringing; (e) state that the information in your claim is accurate; and (f) indicate that “under penalty of perjury” you are the lawful copyright owner or are authorized to act on the owner’s behalf. If you believe that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send this Site a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov for further information. Our contact for copyright issues relating to this Site (including the notices and counter-notices) is: copyright@familybydesign.com . Please note that there are penalties for false claims under the DMCA.
16. Arbitration; Choice of Law and Forum.
(a) Arbitration Agreement.
The exclusive means of resolving any dispute or claim arising out of or relating to these Terms (including any alleged breach thereof), the Service, or the Site shall be binding arbitration administered by the American Arbitration Association. The sole exception to the exclusivity of arbitration is that you have the right to bring an individual claim against FamilyByDesign in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against FamilyByDesign any class action, class arbitration, or other representative action or proceeding. If you do not agree to this Arbitration Agreement, do not use the Site or any services or goods offered therein.
(b) Notice of Rights.
By using the Site or the Service in any way, you agree to the above arbitration agreement. In doing so, you give up your right to go to court to assert or defend any claims between you and FamilyByDesign (except for matters that may be taken to small-claims court). You also give up your right to participate in a class action or other class proceeding. Your rights will be determined by a neutral arbitrator, not a judge or jury. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Notwithstanding anything contained in these Terms of Service to the contrary, FamilyByDesign shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in order to enforce our rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief. You consent to the jurisdiction of such courts and irrevocably waive any objection, including without limitation any objection to the laying of venue or objection based on the grounds of forum non conveniens, which you may now or hereafter have to the bringing of any such action or proceeding in such jurisdiction.
In addition, you expressly waive any right to a jury trial in any legal proceeding against FamilyByDesign, its subsidiaries, divisions, or affiliates or their respective officers, directors, employees, agents, or successors under or related to these Terms of Service. Any claim or cause of action you have with respect to use of the Site must be commenced within one (1) year after the claim arises.
(c) Forum; Choice of Law.
For purposes of any actions or proceedings ancillary to arbitration, or in the event that a given controversy is held by a court of competent jurisdiction to be non-arbitrable, each of the parties hereto (i) irrevocably agrees that the state and federal courts located in New York County shall have sole and exclusive jurisdiction over any suit or other proceeding arising out of or based upon this Agreement, (ii) submits to the venue and jurisdiction of such courts, and (iii) irrevocably consents to personal jurisdiction by such courts.
These Terms of Service and any dispute of any sort that might arise between you and FamilyByDesign or its subsidiaries, divisions, or affiliates shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles, as it is applied to agreements entered into and performed therein.
17. Miscellaneous.
(a) Entire Agreement.
Unless otherwise specified herein, these Terms of Service, together with the Privacy Policy and any other policies explicitly incorporated hereto, constitute the entire agreement between you and FamilyByDesign with respect to the Site and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and FamilyByDesign with respect to the Site.
(b) Severability.
If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
(c) Waiver.
The failure of FamilyByDesign to act with respect to a breach by you or others does not waive FamilyByDesign’s right to act with respect to subsequent or similar breaches. FamilyByDesign’s failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
(d) Assignment.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by FamilyByDesign without restriction.
(e) Headings.
The section headings contained in these Terms of Service are included for convenience only and shall not limit or otherwise affect the terms of these Terms of Service.
18. Definitions.
In these Terms of Service, the terms “we”, “us”, “our” and other similar references mean FamilyByDesign Ventures, Inc., FamilyByDesign, and familybydesign.com. The terms “you”, “your” and other similar references mean a specific Site User (both Members and non-Members) of the FamilyByDesign site.
19. When We Make Changes To These Terms.
FamilyByDesign may, at our sole discretion, alter these Terms from time to time to provide enhancements and updates. When we do so, we will provide notice of those changes within a reasonable amount of time to the e-mail address you provided when you signed up for our services, as well as on this page. Your continued use of FamilyByDesign following notice of any such revisions will constitute your acknowledgment and acceptance of the new terms, and your agreement to continue to be bound by these Terms of Service, as amended.
If you would like to receive a copy of these Terms in non-electronic format, please send a letter and a self-addressed stamped envelope to the address given below, or send a request to tos@familybydesign.com.
20. Contacting Us.
If you have any questions or concerns about these Terms of Service, or wish to report a violation of these Terms of Service, please contact us at tos@familybydesign.com or at:
FamilyByDesign Ventures, Inc.
201 West 21st Street, #9J
New York, NY 10011
