Terms of Use

NEWBORN EVOLUTION LLC TERMS OF USE AGREEMENT

 

Welcome to Newborn Evolution LLC (“Newborn Evolution,” “we,” or “our”).

 

By using the website located at www.newbornevolution.com and the related mobile websites (collectively, the “Websites”), you agree to be bound by these Terms of Use (this “Terms of Use” or “Agreement”). If you wish to make use of the service (the “Service”), please read this Agreement. If you object to anything in this Agreement or the Newborn Evolution Privacy Policy, do not use the Service.

 

PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.

 

1. Electronic Agreement. This Terms of Use is an electronic contract that sets out the legally binding terms of your use of the Service. This Terms of Use is subject to change by Newborn Evolution at any time, effective upon posting on the Newborn Evolution Websites. By accessing and/or using the Service, you accept this Terms of Use and agree to the terms, conditions and notices contained or referenced herein. Your continued use of the Service following Newborn Evolution’s posting of revised terms of any section of the Terms of Use will constitute your express and binding acceptance of and consent to the revised Terms of Use.

 

2. Access and Retention.In order to access and retain this electronic Agreement, you must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must use all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Please print a copy of this document for your records. To retain an electronic copy of this Agreement, you may save it into any word processing program.

 

3. Eligibility.You must be at least eighteen (18) years of age. By using the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.

 

The Service is also not available to any users who have been previously removed or suspended from the Service.

 

By using the Service, you represent and warrant that you have the right, authority and capacity to enter into this Terms of Use and to abide by all of the terms and conditions of this Terms of Use.

 

4. Commercial Use of Service. If you are using and/or accessing the Service on behalf of a company, entity, or organization (collectively, a “Subscribing Entity”), you represent and warrant that:

 

1. You are an authorized representative of the Subscribing Entity, and that you have the authority to bind the Subscribing Entity to this Terms of Use;
2. You have read and understand this Terms of Use; and
3. You agree to this Terms of Use on behalf of the Subscribing Entity.

 

Illegal and/or unauthorized uses of the Service include, but are not limited to, collecting usernames and/or email addresses of other Newborn Evolution users (the “Users”) by electronic or other means for the purpose of sending unsolicited email, unauthorized framing of or linking to the Websites, sharing or disclosing your username or password to any third party or permitting any third party to access your account, attempting to impersonate another user or person, use of the Service in any fraudulent or misleading manner, any automated use of the system, such as scraping the Websites, automated scripts, spiders, robots, crawlers, harvesting or data mining tools or the like, interfering with, disrupting, or creating an undue burden on the Service or the networks or services connected to the Service, and using the Service in a manner inconsistent with any and all applicable laws and regulations. Illegal and/or unauthorized use of the Service may be investigated, and appropriate legal action may be taken, including without limitation, civil, criminal, and injunctive redress. Use of the Service is with the permission of Newborn Evolution, which may be revoked at any time, for any reason, in Newborn Evolution’s sole discretion.

 

5. Your Use of the Service

 

1. You must not copy or capture, or attempt to copy or capture, any content from the Websites or Service, unless given express permission by Newborn Evolution.
2. You must not copy, republish, adapt, make available or otherwise communicate to the public, display, perform, transfer, share, distribute or otherwise use or exploit any content on or from the Websites and/or Service.
3. You must not use any content in any way that is designed to create a separate service or that replicates any part of the offering of the Service.
4. You must not employ scraping or similar techniques to aggregate, repurpose, republish or otherwise make use of any content.
5. You must not employ any techniques or make use of any services, automated or otherwise, designed to misrepresent your activity on the Service, including without limitation by the use of bots, botnets, scripts, apps, plugins, extensions or other automated means to register accounts, log in, send messages, post comments, or otherwise to act on your behalf, particularly where such activity occurs in a multiple or repetitive fashion. You must not offer or promote the availability of any such techniques or services to any other users of the Service.
6. You must not alter or remove, or attempt to alter or remove, any trademark, copyright or other proprietary or legal notices contained in, or appearing on, the Websites or any content appearing on the Websites.
7. You must not, and must not permit any third party to, copy or adapt the object code of the Websites, or reverse engineer, reverse assemble, decompile, modify or attempt to discover any source or object code of any part of the Websites, or circumvent or attempt to circumvent or copy any copy protection mechanism or access any rights management information pertaining to content on the Websites.
8. You must not commit or engage in, or encourage, induce, solicit or promote, any conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or regulation.
9. You must not rent, sell or lease access to the Service, or any content on the Websites.
10. You must not deliberately impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity, for example, by registering an account in the name of another person or company, or sending messages or making comments using the name of another person.
11. You must not stalk, exploit, threaten, abuse or otherwise harass another user, or any Newborn Evolution employee. If Newborn Evolution determines that any user has threatened, stalked, harassed, or verbally abused any Newborn Evolution employee or another Newborn Evolution User, Newborn Evolution reserves the right to immediately suspend and/orterminate that user’s access to the Service.
12. You must not sell or transfer, or offer to sell or transfer, any Newborn Evolution account to any third party without the prior written approval of Newborn Evolution.
13. You must not collect or attempt to collect personal data, or any other kind of information about other users, including without limitation, through spidering or any form of scraping.
14. You must not violate, circumvent or attempt to violate or circumvent any data security measures employed by Newborn Evolution; access or attempt to access data or materials which are not intended for your use; log into, or attempt to log into, a server or account which you are not authorized to access; attempt to scan or test the vulnerability of Newborn Evolution’s servers, system or network or attempt to breach Newborn Evolution’s data security or authentication procedures; attempt to interfere with the Websites or the Services by any means including, without limitation, hacking Newborn Evolution’s servers or systems, submitting a virus, overloading, mail-bombing or crashing. Without limitation to any other rights or remedies of Newborn Evolution under these Terms of Use, Newborn Evolution reserves the right to investigate any situation that appears to involve any of the above, and may report such matters to, and cooperate with, appropriate law enforcement authorities in prosecuting any users who have participated in any such violations.

 

You agree to comply with the above conditions, and acknowledge and agree that Newborn Evolution has the right, in its sole discretion, to terminate your account or take such other action as we see fit if you breach any of the above conditions or any of the other terms of these Terms of Use. This may include taking court action and/or reporting offending users to the relevant authorities.

 

6. Pricing; Charges on Your Account.

 

1. General. Please note that the billing policies that are disclosed to you in subscribing to the service are deemed part of this Terms of Use. Notwithstanding anything herein, you are solely responsible for all taxes associated with your use of the Websites and/or Service.

 

1. Billing. Newborn Evolution bills you through an online account (your “Billing Account”) for use of the Service. You agree to pay all charges at the prices then in effect for any use of the Service by you or other persons (including your agents) using your Billing Account, and you authorize Newborn Evolution to charge your chosen payment provider (your “Payment Method”) for the Service. You agree to make payment using that selected Payment Method.
2. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen payment method.

 

7. Modifications to Service. Newborn Evolution reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Newborn Evolution shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

 

8. Blocking of IP Addresses. In order to protect the integrity of the Services, Newborn Evolution reserves the right at any time in its sole discretion to block Users from certain IP addresses from accessing the Websites and/or Service.

 

9. Term. This Terms of Use will remain in full force and effect while you use the Websites and/or Service.

 

Newborn Evolution may terminate your access to the Service for any reason by sending notice to you at the email address you provide to us. All decisions regarding the termination of accounts shall be made in the sole discretion of Newborn Evolution. Newborn Evolution is not required to provide you notice prior to terminating your access to the Service. Newborn Evolution is not required, and may be prohibited, from disclosing a reason for the termination of your account. Even after your access is terminated, this Terms of Use will remain in effect. All terms that by their nature may survive termination of this Terms of Use shall be deemed to survive such termination.

 

10. Third Party Content. Newborn Evolution may provide third party content on the Websites and/or Service and may provide links to webpages and content of third parties (collectively, the “Third-Party Content”) as a service to those interested in this information. Newborn Evolution does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. Please be aware that Newborn Evolution does not create Third-Party Content, nor does Newborn Evolution update or monitor it. Any such Third-Party Content is the intellectual property of such third party, and may be protected by copyright or trademark rights. Newborn Evolution is therefore not responsible for any Third-Party Content on the Service. Users use such Third-Party Content at their own risk.

 

The Service may include links or references to other web sites or services solely as a convenience to Newborn Evolution users (collectively, the “Reference Sites”). Newborn Evolution does not endorse any Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service are solely between you and the relevant advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.

 

11. Intellectual Property. Newborn Evolution, the Newborn Evolution logos and any other product or service name or slogan contained in the Service are trademarks of Newborn Evolution or our suppliers or licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of Newborn Evolution or the applicable trademark holder. Any authorized use of these trademarks must be in accordance with any guidelines that Newborn Evolution may provide you from time to time.

 

Newborn Evolution retains all proprietary rights in the Websites and the Service, except where otherwise noted. The Websites contain the copyrighted material, trademarks, and other proprietary information of Newborn Evolution, and its licensors. Except where we have given you express written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information. All content on Newborn Evolution is proprietary. Except where otherwise specified in this Agreement, all Content is copyrighted material of Newborn Evolution and for Newborn Evolution Users’ use only. Distribution of Content to others is strictly prohibited. You agree that Newborn Evolution would be irreparably harmed by any violation or threatened violation of this section and that, therefore, Newborn Evolution shall be entitled to an injunction prohibiting you from any violation or threatened violation of this section, without posting bond, in addition to any other right or remedy it may have.

 

We may provide links to third party websites, and some of the content appearing on Newborn Evolution may be supplied by third parties. Newborn Evolution has no responsibility for these third party websites nor for their content, which is subject to and governed by the terms of use and/or privacy policies, if any, of the applicable third party content providers.

 

You may not use any metatags or any other hidden text utilizing “Newborn Evolution” or any other name, trademark or product or service name of Newborn Evolution without our prior written permission. In addition, the look and feel of the Newborn Evolution Service, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Newborn Evolution 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 in the Service 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 thereof by us or any other affiliation.

 

The Service is owned and operated by Newborn Evolution. Unless otherwise indicated, all content and other materials on the Service, including, without limitation, Newborn Evolution’s logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files and the selection and arrangement thereof (collectively, the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws (including in your country of residence).

 

12. Reviews.

 

You may post reviews on the Websites (the “Reviews”). Newborn Evolution reserves the right to remove any Review that Newborn Evolution determines, in its sole discretion, is inaccurate, defamatory, or otherwise objectionable. If you believe that a Review is objectionable, you may email us at Joanne@NewbornEvolution.com  to request that the Review be removed.

 

Notwithstanding the foregoing, Newborn Evolution is not obligated to remove any Reviews, and disclaims any liability arising from or relating to Reviews posted on the Websites.

 

13. Repeat Infringer Policy. Newborn Evolution has adopted a policy that it will promptly terminate without notice any user’s access to the Service if that user is determined by Newborn Evolution to be a “repeat infringer.” A repeat infringer includes, without limitation a user who has been notified by Newborn Evolution of infringing activity violations more than twice and/or who has had any user-submitted content removed from the Service more than twice. Newborn Evolution may also at our sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

 

In addition, Newborn Evolution accommodates and does not interfere with standard technical measures used by intellectual property rights owners to protect their materials.

Please note that we do not offer refunds to Users whose accounts are terminated as a result of repeated infringement of these Terms of Use.

14. Limitation of Liability. In no event shall Newborn Evolution be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the Websites or Service, or use thereof. Nothing contained in the Websites or Service or in any written or oral communications from Newborn Evolution or its employees or agents shall be construed to make any promise, covenant, warranty, or guaranty, all of which are explicitly disclaimed hereby, contrary to the statements and disclaimers contained in this paragraph.

 

The content and functionality on the Websites and Service, along with the services provided by employees of the Websites and Service, are offered “as is” without warranty of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Newborn Evolution makes no warranties, express or implied, as to the ownership, accuracy, completeness or adequacy of the Websites’ content or that the functionality of the Websites or Service will be uninterrupted or error-free or free from virus or third party attack. You hereby acknowledge that your use of the Websites and the Service is at your sole risk. UNDER NO CIRCUMSTANCES SHALL NEWBORN EVOLUTION, ITS OFFICERS, OWNERS, EMPLOYEES OR AGENTS AND THEIR RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS BE LIABLE FOR ANY DAMAGES, INCLUDING DIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT DIRECTLY OR INDIRECTLY RESULT FROM USE OF, OR INABILITY TO USE, THE WEBSITES OR SERVICE OR THE INFORMATION CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE WEBSITES OR SERVICE, EVEN IF NEWBORN EVOLUTION HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND REGARDLESS OF THE THEORY OF LIABILITY.

 

TO THE GREATEST EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL NEWBORN EVOLUTION HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THE AGREEMENT, WEBSITES OR THE SERVICE, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL, COPYRIGHT INFRINGEMENT, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PERSONAL INJURY, PROPERTY DAMAGE, OR ANY OTHER DAMAGES OR LOSSES, EVEN IF NEWBORN EVOLUTION HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH SUCH LIABILITY IS BASED.

 

In the event that any of the foregoing limitations are deemed to be unenforceable, to the greatest extent permitted by law, you agree that the entire aggregate liability of Newborn Evolution and sole remedy available to any User in any case in any way arising out of or relating to the Agreement, Websites or the Service shall be limited to monetary damages that in the aggregate may not exceed the greater of $500.00 or the sum of any amount paid by the User to Newborn Evolution during the six months prior to notice to Newborn Evolution of the dispute for which the remedy is sought.

 

15. Indemnity by You.You agree to indemnify and hold Newborn Evolution, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, arising out of or related to:

 

1. your use of the Service and/or Websites in violation of this Terms of Use and/or arising from a breach of this Terms of Use including without limitation your representations and warranties set forth above; or
2. any activity related to your account, be it by you or by any other person accessing your account with or without your consent unless such activity was caused by the act or default of Newborn Evolution.

 

16. Attorney Fees.In the event that Newborn Evolution is successful in whole or in part in any action or proceeding related to or arising from this Terms of Use, you shall be responsible for Newborn Evolution’s attorneys’ fees and costs.

 

17. Parental or Guardian Permission. Some of the Content on the Websites may not be appropriate for children. CHILDREN UNDER THE AGE OF 16 ARE NOT PERMITTED TO USE THE WEBSITES AND/OR SERVICE UNLESS A SUPERVISING PARENT OR GUARDIAN IS PRESENT. INDIVIDUALS UNDER THE AGE OF 16 ARE NOT PERMITTED TO SUBSCRIBE TO OUR FEE-BASED SERVICES OR GIVE NEWBORN EVOLUTION THEIR EMAIL ADDRESS OR ANY OTHER PERSONALLY IDENTIFIABLE INFORMATION.

 

18. Privacy.Use of the Websites and/or the Service is also governed by our Privacy Policy, located at https://newbornevolution.com/privacy-policy/

 

19. Jurisdiction and Choice of Law; Dispute Resolution. If there is any dispute arising out of the Websites and/or the Service, by using the Websites and/or Service, you expressly agree that any such dispute shall be governed by the laws of the State of New York, without regard to its conflict of law provisions, and you expressly agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of New York, for the resolution of any such dispute. Acceptance of the terms and conditions of this Agreement constitutes your consent to be sued in such courts and to accept service of process outside the State of New York with the same force and effect as if such service had been made within the State of New York. You hereby agree to accept service of process for any action hereunder by certified mail return receipt requested which service shall have the same force and effect as though service had been effected by personal service in the applicable jurisdiction. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions.
20. Arbitration Provision/No Class Action. Except where prohibited by law, as a condition of using the Websites and/or Service, you agree that any and all disputes, claims and causes of action (collectively, “Claim”) arising out of or connected with the Websites and/or Service, shall be resolved individually, without resort to any form of class action, exclusively by binding arbitration under the rules of the American Arbitration Association for full and final settlement of such Claim, and judgment on the award rendered in the arbitration may be entered in any court having jurisdiction thereof. Such arbitration shall be held in accordance with the Rules for Expedited Procedures under the Commercial Arbitration Rules of the American Arbitration Association or other mutually agreeable organization, before a single arbitrator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement), selected by agreement of both parties or by an independent mediator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement) if the parties are unable to agree. The parties shall split the arbitration and/or mediator costs. An award rendered by the arbitrator(s) may be entered and confirmed by the courts of the State of New York, County of Westchester, or the U.S. District Court for the Southern District of New York. The parties agree that any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts of the State of New York, County of Westchester, or the U.S. District Court for the Southern District of New York.
21. No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this Terms of Use, there shall be no third party beneficiaries to this Terms of Use.

 

22. Availability Outside the U.S. If you access Newborn Evolution from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. If you access the Websites or Service from outside of the United States, you acknowledge that any personal information you provide will be processed in the United States and other geographies as selected by us in our sole discretion, and you hereby consent to the collection and processing of your personal information in a manner consistent with this Agreement and the Privacy Policy.

 

23. Entire Agreement.

 

This Terms of Use, along with the Privacy Policy, contains the entire agreement between you and Newborn Evolution regarding the use of the Websites and/or the Service.

 

24. Severability; Waiver. If any provision of this Terms of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Terms of Use, which shall remain in full force and effect. No waiver of any term of this Terms of Use shall be deemed a further or continuing waiver of such term or any other term. In addition, Newborn Evolution’s failure to enforce any term of this Terms of Use shall not be deemed as a waiver of such term or otherwise affect Newborn Evolution’s ability to enforce such term at any point in the future.

 

25. Headings. The section headings contained in this Terms of Use are for reference purposes only and shall not in any way affect the meaning or interpretation of this Terms of Use.

Please contact us with any questions regarding this agreement.

 

Newborn Evolution reserves all rights not expressly granted in these Terms of Use.

 

I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.

 

(Updated: July 12, 2018)