Terms of Service
Last updated: March 12, 2013
1. Agreement between You and Balluun.
The Services consist of a web-based business-to-business social marketplace, accessible via the Site or via Balluun's mobile device software application (the "App
") where, as a registered user ("Registered User
"), you may be permitted to do some or all of the following: (a) create a profile ("company profile
") for the company or other business entity whom you represent and on whose behalf you use the Services; (b) create your own personal professional profile ("Personal Profile
") linked to your Company Profile on the Site; (c) communicate and network with other Registered Users, who may be your co-workers, or employees of, or persons otherwise acting for, business partners (each a "Connected Partner
") with whom you may be connected through the Services, by sending and posting messages through the Site or Services; (d) sell your products and services to your Connected Partners through your Storefront (defined in Section 3.3 below); (e) buy products and services from your Connected Partners; and (f) perform such other activities as may be facilitated by the Services, Site or App from time-to-time.
1.2 The term "you" and "your" for purposes of these Terms, means both you in your individual capacity, and the company or other business entity whom you represent and on whose behalf you use the Services under actual or apparent authority. By agreeing to these Terms or by using the Services, you represent and warrant that you have the authority to represent the company or business entity for whom you are acting. In addition, these Terms apply to you in your capacity as a Buyer and/or a Seller (as each term is defined in Section 2.1 below).
1.3 In order to use the Services you must agree to these Terms. If you do not agree to these Terms, do not use the Services. You acknowledge and agree that Balluun will treat your use of the Services as acceptance of these Terms from the time you first use the Services.
2. Balluun Account.
2.1 In order to make productive use of the Services, you must register with Balluun to open a Balluun user account ("Account"). In order to open an Account and become a Registered User, you will be required to provide the following information to Balluun: (a) your first and last names; (b) your e-mail address; (c) the name of your company; (d) your PayPal account, credit card, or, if relevant, other financial account information; and (e) such other information as Balluun may request from time-to-time. In addition, if you are creating a Company Profile for your company (i.e., you are the first Registered User to use the Services on behalf of your company), you must also choose whether your company wishes to use the Services as a buyer (a "Buyer") or as a seller (a "Seller"). If you create an Account as a Seller, you may also use your Account as a Buyer. However, if you create an Account as a Buyer, you are not permitted to use your Account as a Seller. To the extent you use your Seller Account as a Buyer, these Terms will apply to you as a Buyer for all transactions and other activities carried out by you through the Services in your capacity as a Buyer. Balluun reserves the right to approve any and all new Accounts. You should not create a new Company Profile for your company if a Company Profile already exists for your company, unless you believe that it is reasonably necessary to create an additional Company Profile(s) (e.g., you are a large company and wish to have separate Company Profiles for your affiliates, divisions, or for different types of products or services offered by you). However, Balluun may refuse to approve a new Company Profile, or may in the future cancel a Company Profile where more than one Company Profile exists for your company, if Balluun does not believe that there is a reasonable basis for such additional Company Profile(s); provided however, that Balluun has no obligation to do so. By registering to open an Account and where applicable, creating a Company Profile, you hereby agree that Balluun may include and make your Content (as defined in Section 7.1 below) available as part of the Services and provide such Content to other Registered Users of the Services.
2.2 By opening an Account and where applicable, creating a Company Profile, you represent and warrant that: (a) all information you submit in connection with the opening and use of your Account is true, accurate, current, and complete; (b) you have the authority to enter into these Terms and bind the company or other business entity on whose behalf you access the Site and use the Services; (c) the street address you use when registering to use the Services, and where applicable, creating a Company Profile, is the principal place of business of the company or other business entity on whose behalf you access the Site and use the Services; (d) your use of the Site, App or Services does not and will not violate any applicable law, rule or regulation; (e) you will promptly notify Balluun if your information changes so that Balluun can update its records and ensure that your information remains current; and (f) you are aged 18 or older; the Services are not intended for persons under 18. We reserve the right to verify the identity of any Registered User, although we have no obligation to do so.
2.3 You are solely responsible for maintaining the security and confidentiality of the information you hold for your Account, including, without limitation, your user name and password, and for any and all activity that occurs through your Account as a result of your failure to keep this information secure and confidential. You hereby agree to notify Balluun immediately if you become aware of any unauthorized use of your Account, user name or password, or any other breach of security in connection therewith. You may be held liable for losses incurred by Balluun or any third party due to someone else using your Account, user name or password as a result of your failing to keep your Account information secure and confidential. You are strictly prohibited from using anyone else's Account, user name or password at any time and for any reason. You may not assign, sell or transfer your Account, user name or password to any other person. Balluun is not liable to you or any third party for your failure to comply with your obligations under this paragraph.
3. Account Levels.
3.1 When you first create an Account, your Account will be classified as a "Spectator Account". There is no fee to sign up for either a Buyer or Seller Spectator Account, but when you use the Services as a Spectator Account, your use will be limited to following the activities of certain Balluun Buyers and Sellers on those companies' public news streams. To connect with Buyers or Sellers or to buy and sell products via the Services, you must apply for and be approved for an upgrade to one of our premium accounts "Premium Accounts". A description of each type of Premium Account, the functionality and benefits available with each, and fees and requirements of each upgrade are posted on the Site at https://www.balluun.com/public/sellerpricing
. Applications for certain Premium Accounts may require you to provide Balluum or Balluun's service providers additional information about your business.
3.2 By applying to upgrade to any Premium Account you hereby authorize Balluun and Balluun's third party service providers to contact you separately and use the information you provide to obtain, from time to time, credit reports and/or to otherwise make (or have third party providers make) credit or other background inquiries as Balluun deems appropriate to evaluate your registration for or continued use of the Services. Baluun, in its sole and absolute discretion, may refuse to approve or may terminate existing registrations with or without cause or notice, other than any notice required by any applicable law, and not waived herein.
3.3 Balluun may, in its discretion, introduce new or additional Premium Accounts, fees and/or requirements therefor, including without limitation, changing the requirements a Buyer or Seller must satisfy in order to register for Premium Accounts. Balluun will post any changes on the Site, and such changes will be effective as of their posting.
4. Conducting Transactions Through the Services.
4.1 The Services are intended to facilitate business communications and sales and purchase transactions between you acting as a Buyer or Seller, and Connected Businesses acting as Buyers or Sellers. Balluun is only a conduit through which Buyer and Seller can negotiate and enter into transactions for the purchase and sale of Seller's products and services. However, Balluun does not represent either Buyer or Seller in connection with any transactions carried out through the Site or Services, and Balluun is not a party to any transaction between any Buyer and Seller. Payments between Buyers and Sellers are processed through Balluun's third party service provider(s), and Balluun does not receive any Payments from Buyers on Sellers' behalf, or make any Payments to Sellers on Buyers' behalf. Nothing in these Terms, or the operation of the Site or Services, is intended to be interpreted as any endorsement or recommendation by Balluun of any Buyer, Seller, product or service. Without limiting the foregoing, Balluun cannot, and does not, evaluate, control or monitor: (a) any products or services offered by Sellers through their Storefronts (including, without limitation, the lawfulness, quality, safety, or availability of any Seller's products and services); (b) the creditworthiness or financial condition of any Buyer; or (c) the ability of any Buyer or Seller to enter into, or complete, any transaction, or to perform its payment, warranty, support, or other obligations. If you use the Services as a Seller, it is your sole responsibility to carry out your own due diligence, credit checks and research (or ensure that a third party has done so) before you sell any products or services to any Buyer. If you use the Services as a Buyer, it is your sole responsibility to carry out your own due diligence and research before you purchase any products or services from any Seller. Balluun has no liability to you or any third party in connection with your sale or purchase of any products or services through the Services or your use of such products or services, or the performance or non-performance of any Buyer or Seller, or any illegal, fraudulent, misleading, untruthful, inaccurate, or erroneous product, service or payment information, or other Content, provided by any Buyer or Seller in connection with, or through, the Services. No sales agency or similar relationship is created between Balluun and any Registered User or any Buyer or Seller in connection with the use of the Site, App or Services. Buyer acknowledges that Balluun does not and will not under any circumstances take, or assume title to, or assume the risk of loss in connection with, products or services bought or sold through the Services. Each of Buyer and Seller expressly agrees that Balluun will not be liable or responsible for any damages that either Buyer or Seller incurs as a result of, or in connection with, any transaction conducted through the Site or Services, and each of Buyer and Seller, will look to the other party to the relevant transaction for any and all recourse, including any payment, warranty or legal obligations concerning the affected products or services.
4.2 You acknowledge and agree that by using the Site and/or Services, you run the risk of dealing with persons who may be operating under false pretenses, and Balluun is under no obligation to, and does not represent that it has taken, or will take, any measures to verify the identity of any Registered User or any Buyer or Seller. We recommend that you use your common sense business judgment and take reasonable measures to research and confirm the identity of Registered Users, Buyers and Sellers with whom you choose to do business through the Site and/or Services.
4.3 Seller will display the products and services that it wishes to sell through the Services on the storefront page (the "Storefront") under Seller's Company Profile and on Seller's shop section of the Marketplace. Seller is responsible for uploading, maintaining and correcting all Content contained on Seller's Storefront, including, without limitation, descriptions, pricing, images, and other information related to Seller's products and services. Balluun has no responsibility for any errors or omissions in product or service descriptions, pricing or other matters relating to the Terms of Sale (as defined in Section 4.4 below), and all Content on the Storefront is the sole responsibility of Seller. Without limiting any other terms and conditions applicable to your use of the Services as set forth in these Terms, Balluun strictly prohibits the use of the Site and Services for the sale or purchase of any fake, counterfeit or unauthorized reproductions of any products or services. If you breach this prohibition Balluun will, in addition to any other rights or remedies that Balluun may have, terminate your Account, block your access to or use of the Site, App and/or Services, provide your contact information to third parties whose rights may have been infringed or misappropriated by your conduct, and if we deem it appropriate, we will report you to appropriate law enforcement authorities.
4.5 Buyer will purchase Seller's products collections by proceeding through the ordering and check-out procedure provided through the Services. Buyer will pay the applicable purchase price (the "Payment") in the currency specified by Seller and, by using either Buyer's PayPal account, credit card or by such other payment mechanism as Balluun may specify from time to time. Buyer is responsible for maintaining up to date PayPal account, credit card or other financial account information for its Account. Upon receipt of the applicable Payment from Buyer, Seller will promptly ship the relevant product, or provide the services to Buyer, and Buyer can track the shipment of any products and provision of any services through Balluun's order management/overview feature. Buyer understands that Balluun is not involved in the fulfillment, shipping or processing of any order that Buyer places through the Services, and Balluun has no responsibility or liability to Buyer or any third party in this regard.
4.6 For each product and service that Seller lists on its Storefront and in the Marketplace, Seller will provide Balluun, at its request, with the state or country from which the product ships or service is provided. Seller will promptly provide Balluun and the relevant Buyer (using Balluun's order management tool and the other business-to-business social networking tools made available through the Services) with any requested information regarding shipment, tracking and order status. Promptly after shipment, (but in any event, within twenty four (24) hours after shipment), of Buyer's order (or any portion of Buyer's order), or Seller's provision of the relevant service to Buyer, Seller will accurately inform Balluun and the relevant Buyer that the order has been shipped (and, in the case of a Buyer order that is shipped in more than one shipment, accurately inform Balluun and the relevant Buyer as to which portion of the order has been shipped), or that the service has been provided, using Balluun's order management tool and the other business-to-business social networking tools made available through the Services. If Seller fails to provide confirmation of shipment or other material information concerning the status of an order within the timeframe Balluun specifies, Balluun may in its sole discretion cancel (and notify Buyer that it has canceled) any such transaction, and Buyer and Seller will stop and/or cancel any such transaction upon such request by Balluun, and Balluun may request PayPal or its other service provider(s) to refund the Payment to Buyer.
4.7 In the event of any dispute between Buyer and Seller, we encourage the disputing party to contact the other party promptly so that the dispute can be resolved to both parties' satisfaction without delay. Balluun cannot become involved in the resolution of any dispute between any Buyer and Seller. However, in the event of any dispute that is notified to Balluun, Balluun may, in its sole discretion, cancel (and notify Buyer that it has canceled) the relevant transaction, and Buyer and Seller will stop and/or cancel any such transaction upon such request by Balluun, and Balluun may request PayPal or its other service provider(s) to refund the Payment to Buyer. Balluun expects Buyers and Sellers who use the Services to act honestly and in good faith, and to comply with the applicable Terms of Sale and any other binding legal obligations that govern each transaction conducted through the Services. Balluun expects you to honor any commitment that you have made to buy or sell products or services through the Services and we reserve the right to terminate your ability to use the Services if you fail to honor such commitment.
5. Transaction Fee.
5.1 To the extent you use the Services as a Buyer, you are not required to pay any fees to Balluun unless you have upgrade to any Premium Account. To the extent you use the Services as a Seller, you are required to pay Balluun a transaction fee ("Transaction Fee") on each completed transaction conducted through the Services based on the Final Transaction Price you agree with Buyer. "Final Transaction Price" means the total amount of an order for products or services placed by Buyer and accepted by Seller through the Services, net of shipping and applicable taxes. No other deductions are permitted when calculating the Final Transaction Price. You may review Balluun's current Transaction Fees here. All Transaction Fees paid to Balluun are non-refundable, even if Seller is obligated to provide a refund to Buyer. Balluun in its sole discretion and upon notice to Seller (including notices posted on the Site or sent to Seller's registered e-mail address), may require Seller to use a particular method of receiving payments due from Buyers, or may offer Seller the option of having such payments processed by one of a number of methods. If Seller uses PayPal as a payment method, the applicable Transaction Fee for each transaction conducted through the Services will automatically be deducted by PayPal from Buyer's Payment transmitted to Seller's PayPal account, and such Transaction Fee will be transmitted to Balluun. If Seller uses a different method of payment, Balluun may, in Balluun's sole discretion, partner with payment the payment processor to automatically deduct the Transaction Fee from Buyer's payment, or otherwise invoice Seller for applicable Transaction Fees. You expressly agree that Balluun is permitted to bill you for any applicable fees, any applicable tax and any other charges you may incur in connection with your use of the Services and the fees will be billed to your PayPal, credit card or other payment method. Seller is responsible for maintaining up to date PayPal or other financial account information for its Account.
5.2 As between Balluun on the one part, and Seller and Buyer on the other part, you agree that Seller is responsible for determining any Transaction Taxes (as defined below) that apply to transactions conducted through the Services and to collect, report, and remit the correct Transaction Taxes to the appropriate tax authorities. You also agree that Balluun is not obligated to determine whether any Transaction Taxes apply and is not responsible for collecting, reporting, or remitting any sales, use, or similar taxes arising from any transaction. "Transaction Taxes" means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products or services by Seller on or through the Services. Seller hereby agrees to indemnify, defend, and hold Balluun harmless, in respect of any and all losses, damages, or claims incurred by, or brought against, Balluun in respect of the payment or non-payment of such Transaction Taxes.
5.3 Unless otherwise agreed by Balluun and Seller, all Transaction Fees and Payments are payable in U.S. Dollars. Balluun reserves the right to suspend or terminate your use of or access to the Services, and access to your Content, if you fail to pay any Transaction Fees due in connection with your use of the Services. Any outstanding Transaction Fees are immediately due and payable upon termination of your use of the Site, App or Services for any reason.
5.4 To the greatest extent permitted by applicable law, Seller hereby waives all claims it may have relating to Payments and Transaction Fees payable in connection with the Services unless Seller notifies Balluun of any such dispute within thirty (30) calendar days of the relevant Payment being paid to Seller's PayPal or other financial account.
5.5 Balluun may introduce new or additional fees for any or all of the Services, and change its payment terms, including without limitation, the amount of Transaction Fees and the manner in which Transaction Fees are calculated and paid to Balluun, in its discretion; provided however, that such changes will not take effect for any transactions that are underway but have not been completed when such changes are announced. You will be notified of any such changes (including notices posted on the Site or sent to your registered e-mail address).
6. Balluun's Proprietary Rights.
6.1 You hereby acknowledge and agree that Balluun (or its licensors) owns all legal right, title and interest in and to the Site, App and Services, including, without limitation, all intellectual property or other proprietary rights which subsist in the Site, App and Services (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between you and Balluun, all materials on the Site and App, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", and arrangement of the Site and App and their content (except for your Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site and App, are all owned by Balluun or its licensors.
6.2 Nothing in these Terms gives you any right to use any of Balluun's trade names, trade marks, service marks, logos, domain names, and other distinctive brand features. All rights not expressly granted by Balluun under these Terms are reserved. There are no implied rights.
6.3 Subject to your compliance with these Terms, including, without limitation, your payment of any applicable Transaction Fees or other applicable fees, Balluun hereby grants you a limited, personal, worldwide, royalty-free, non-transferable, non-sublicensable and non-exclusive license to use the Site, App and Services for your internal business use, for such purposes as permitted and/or specified by Balluun from time-to-time in any applicable documentation or applicable descriptions. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Site, App and Services as provided by Balluun, in the manner permitted by these Terms.
6.4 During, and after the termination of, your use of the App or Services, you will not assert, nor will you authorize or assist any third party to assert, against Balluun or any of the Balluun Parties (defined in Section 14.1 below), any patent infringement claim with respect to the App or Services.
7. Services Use Restrictions.
7.1 You hereby represent and warrant that you will not, and will not permit or induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site, App or Services or otherwise attempt to gain unauthorized access to any portion or feature of the Site or Services, or any other systems or networks connected to the Site or Services, or to any Balluun or any third party server, by hacking, password "mining", or any other illegal means; (b) use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Services; (c) use any device, software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the Site or Services or any transaction being conducted on the Site or through the Services, or with any other person's use of the Site or Services; (d) breach any security measures implemented on the Site or App or in the Services; (e) track or seek to trace any information on any other person who visits the Site or uses the App or Services; (f) forge headers or otherwise manipulate identifiers in order to disguise your identity, or the origin of any message or other communication that you send to Balluun, any Registered User, Buyer or Seller, or any third party in connection with the Services; (g) pretend that you are, or that you represent, someone else, or impersonate any other person; (h) use the Site, App or Services to buy or sell any products or services that fall within the Prohibited Field (defined in Section 7.2 below); (i) use the Site, App or Services for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by these Terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data, consumer protection, unfair competition, anti-discrimination or false advertising; (j) upload or otherwise process any malicious content to, or through, the Services; or (k) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to, the App and/or Services, or made available to you in connection with the Site, App and/or Services.
7.2 "Prohibited Field" for purposes of these Terms means any of the following: (a) products or services relating to the design, development, production, or use of missiles or the design, development, production, stockpiling, or use of chemical or biological weapons; (b) products or services that are racially, religiously or ethnically derogatory, or that promote hatred, violence, discrimination, racial or religious intolerance; (c) sweepstakes, giveaways, lotteries, raffles, or contests; (d) stocks, bonds, investment interests, and other securities; (e) pornographic materials, items that are sexual in nature, or sexually explicit products or services; (f) products or services that do not offer a product or service for sale, such as advertisements solely for the purpose of collecting user information; (g) products or services that are harmful to minors; and (h) other products or services which while not prohibited by applicable law, may be deemed by Balluun in its sole discretion, as unsuitable or otherwise inappropriate for buying or selling through the Services.
7.3 You hereby agree that you will notify Balluun if you become aware that the Site, App or Services are being used for or in any Prohibited Field or for any other illegal or unauthorized purpose.
7.4 You are solely responsible for ensuring that your use of the Services, and any products, services, or information that you provide or obtain through using the Services, complies with all applicable laws, rules and regulations of the place from where you access the Services and/or use such products and services.
8. Your Content & License from You.
8.1 You hereby agree that you are solely responsible and liable for any and all information, data files, written text, computer software, music, audio files or other sounds, photographs, videos, graphics (including the logos, trademarks and other identifiers of your brands), images, messages, communications, and other content (collectively "Content") that you collect, upload, store, transmit, display, publish, disclose, or otherwise use in connection with the Services, and for the consequences of your actions in connection with such Content and your use of the Services, and Balluun's use of your Content on your behalf.
8.2 Without limiting the foregoing, your Content includes, without limitation: (a) all information you provide for any Company Profile or Personal Profile; (b) all information you provide on, or in connection with, your Storefront or the Marketplace, including without limitation, information concerning the functionality of your products and services and any warranties that you provide in connection therewith, and any other information that you provide to Buyers, Sellers and third parties in connection with your use of the Services; (c) personally identifiable information that you collect from Buyers, Sellers and third parties in connection with your use of the Services; (d) confidential and/or proprietary information that you obtain from Buyers, Sellers and third parties in connection with your use of the Services; and (e) information that you post, display or transmit to your co-workers, Registered Users, Buyers, Sellers, and third parties through message systems, discussion boards, message boards, chat-rooms, or other means of communication made available through the Services.
8.3 You agree that Balluun has no responsibility to you, any Registered User, Buyer, Seller or to any third party in connection with your Content. You are solely responsible for any losses or damage suffered by Balluun, a Registered, User, Buyer, Seller or any third party in connection with your Content. You hereby represent and warrant that you will not collect, store, transmit, publish, provide, or otherwise use any Content in connection with the Services that: (a) violates these Terms; (b) is defamatory, libelous, abusive, illegal, profane, indecent, pornographic, obscene, hateful, offensive, harassing, or threatening in any way; (c) is fraudulent or makes fraudulent offers of products or services or involves the purchase or sale, or attempted purchase or sale, of counterfeit, fake or stolen products, or otherwise constitutes or encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise intentionally or unintentionally violates, or induces the violation of, any law, rule or regulation, (including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising); (d) infringes, misappropriates, or otherwise violates any third party's copyright, trademark, patent, trade secret, or other personal or proprietary right; (e) invades or interferes with the rights of privacy or publicity of any person; (f) contains a virus, malicious code or any other harmful component; (g) promotes or endorses discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
8.4 You agree to immediately take down, delete or modify any Content that is stored by you through the Services that violates these Terms or any applicable laws, rules, or regulations, including pursuant to a take down, deletion or modification request from Balluun. Balluun may, but is not obligated to, monitor Content made available through the Services. In the event that you elect not to comply with a request from Balluun to take down, delete or modify certain Content, Balluun reserves the right to directly take down, delete or modify such Content. Balluun assumes no liability or responsibility arising from your activities in connection with the Services, including, without limitation, Content that you collect, store, transmit, publish, process, disclose, or otherwise use in connection with the Services.
8.5 Balluun claims no ownership or control over your right, title and interest in your Content. You retain copyright and any other intellectual property and other proprietary rights you already hold in your Content, and you are solely responsible for protecting those rights, as you deem appropriate. By collecting, submitting, storing, transmitting, publishing, displaying, or otherwise using your Content in connection with the Services, you hereby grant Balluun a worldwide, royalty-free, fully-paid-up, non-exclusive, transferable, sublicensable, perpetual, irrevocable license to reproduce, adapt, reformat, modify, perform, display, distribute, translate, create derivative works from, and otherwise use such Content for the purpose of enabling Balluun to provide the Services, including, without limitation, storing and retrieving the Content, making the Content available through the Services, adapting, reformatting and modifying the Content for technical display and transmission, conforming the Content to the limitation and terms of the Services, and any other use related to the maintenance, provision and improvement of the Site, App and Services.
8.6 You hereby agree that Balluun, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, in presentations, marketing materials, customer lists, financial reports and web site listings (including links to your Company Profile, Storefront and web site) for the purpose of advertising, promoting or publicizing the App or Services.
8.7 Balluun will not disclose any of your Content, except: (a) as necessary to provide the Services; (b) as otherwise expressly permitted by you; or (c) as required to comply with the request of any governmental or regulatory body, subpoenas or court orders, or as otherwise required by applicable law, rule or regulation. If we receive a subpoena, court order, or other request from a governmental or regulatory body requesting the disclosure of any of your Content, we will use good faith efforts to provide you with reasonable notice to allow you to seek a protective order or other appropriate remedy (except to the extent Balluun's compliance with the foregoing would cause it to violate a court order or other legal requirement). You are required to respond to third party requests about your Content, and we may provide your contact information to third parties, and suspend or terminate your access to the Services and your Content, if you fail to respond to such third party requests.
8.8 Balluun may use usage patterns, trends and other statistical data derived from your Content and use of the Site, App or Services for purposes of providing, operating, maintaining, or improving the Site, App or Services.
8.9 You acknowledge and agree that Balluun is not liable in any way to you or any third party, for any third party Content made available to you through the Services, including, without limitation, any errors or omissions in Content, or for any loss or damage of any kind incurred as a result of the use or reliance on Content. You agree to evaluate and bear all risks and responsibility associated with the use or reliance on any Content that you obtain through your use of the Services.
9. Message and Discussion Boards; Buyer & Seller Ratings.
9.1 Balluun may make message boards and/or discussion boards available to Registered Users on the Site to promote and encourage open, honest and respectful communication between Registered Users. All Content, whether publicly posted or privately transmitted through a message board or discussion board on the Site, will be the sole responsibility and liability of the posting Registered User. You acknowledge and agree that Balluun does not control the Content posted or transmitted through any message board or discussion board on the Site, and does not guarantee the accuracy, integrity, quality, or suitability of such posted or transmitted Content. Balluun does not pre-screen Content posted or transmitted through any message board or discussion board on the Site. Balluun may, but is not obligated to, monitor the posting activities of Registered Users and may in its sole discretion, edit or remove any Content and/or restrict a Registered User's ability to post Content through the message boards and discussion boards. By using any message board or discussion board, you understand that you may be exposed to Content that is offensive, indecent or objectionable, and you use such message boards and discussion boards solely at your own risk and Balluun has no responsibility or liability to you in connection therewith. You should exercise common sense and appropriate caution before posting any of your own personally identifiable information or other confidential information on any message board or discussion board, as such information will be viewable by any Registered User accessing such board, and Balluun has no responsibility or liability to you in respect of your decision to make your personally identifiable information or other confidential information publicly available through the Services.
9.2 Balluun may in its sole discretion, enable Buyers and Sellers to provide feedback and/or ratings concerning the Buyers or Sellers with whom they have conducted transactions through the Services. Such feedback and ratings are intended to enable Buyers and Sellers to evaluate the overall performance of the Buyers and Sellers with whom they have dealt, and to help Buyers and Sellers develop a reputation within the marketplace enabled by the Services. Please use caution and good judgment when providing feedback or ratings, as they will be viewable by all users of the Services. All feedback and ratings that you provide through the feedback and ratings tool, will constitute "Content" and will be governed by the terms applicable to Content in Section 8 and elsewhere in these Terms. Without limiting the foregoing, you may not: (a) post any false, malicious, reckless, abusive, defamatory, offensive, inflammatory, or inappropriate information about any Buyer or Seller using the feedback and ratings tool; (b) disclose any confidential or personal information of any Buyer or Seller using the feedback and ratings tool; (c) manipulate feedback and ratings, including, without limitation, by rating yourself or your affiliated companies; (d) provide feedback or ratings before the Buyer or Seller has had a reasonable period of time to complete a transaction or resolve any dispute that has arisen with regard to the transaction; or (e) provide feedback or ratings on an unrelated transaction. You are solely and exclusively responsible and liable for all feedback and other ratings that you provide.
10.1 If you send or transmit any communications or materials to Balluun by mail, e-mail, telephone, or otherwise ("Feedback"), suggesting or recommending changes to our Site, App or Services, including, without limitation, new features or functionality relating thereto, any comments, questions, suggestions, or the like, all such Feedback is, and will be treated as, non-confidential and non-proprietary. This means that you give up any claim that the use of such Feedback by Balluun or its agents, violates any of your rights including, without limitation, moral rights, privacy rights, proprietary or other property rights, rights of publicity, rights to credit for material or ideas, or any other right, including the right to approve the way Balluun uses such Feedback.
10.2 You hereby assign all right, title, and interest in, and Balluun is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree and understand that Balluun is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
11. Copyright Infringement
11.1 Balluun respects the intellectual property and other proprietary rights of others and has a policy of removing Content from the Site, App and Services that infringes third party copyrights and suspending and/or terminating the Account of any user who uses the Site, App or Services in violation of copyright law, and where appropriate, blocking such user's access to the Site, App and Services.
11.2 If you are a copyright owner, or an agent thereof, and believe that your work is the subject of copyright infringement and appears on our Site or App, or is being used through the Services, including, without limitation, displayed on a Storefront, you may submit a notification to us pursuant to the Digital Millennium Copyright Act ("DMCA
") by providing our copyright agent (designated below) with the following information in writing: (a) your physical or electronic signature; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit Balluun to locate such material; (d) information reasonably sufficient to permit Balluun to contact you, such as an address, telephone number, and, if available, an e-mail address; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are, or that you are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed. Balluun's designated copyright agent to receive notifications of claimed infringement under the DMCA is:
Attn: DMCA Agent
950 Tower Lane, Suite 1775
Foster City, CA 94404
Tel: (650) 576-3727
Fax: (650) 745-1030
11.3 Only DMCA or other copyright-related notices should be sent to the copyright agent; any other communications sent to the copyright agent will be destroyed.
12. Other Intellectual Property Rights Infringement.
12.1 Please use the procedure specified in Section 11 above for all DMCA- and other copyright- related notices.
Balluun respects the intellectual property and other proprietary rights of others and has a policy of removing Content from the Site, App and Services that infringes or misappropriates the intellectual property rights of others, and suspending and/or terminating the Account of any user who uses the Site, App or Services in violation of any laws applicable to the protection of intellectual property rights, and where appropriate, blocking such user's access to the Site, App and/or Services.
12.2 If you are the owner of an intellectual property right, and believe that your intellectual property right is the subject of infringement or misappropriation and appears on our Site or App, or is being used through the Services, including, without limitation, displayed on a Storefront, you may submit a notification to us by providing our intellectual property rights agent (designated below) with the following information in writing: (a) your physical or electronic signature; (b) identification of the intellectual property right claimed to have been infringed or misappropriated; (c) identification of the material that is claimed to be infringing or misappropriating or to be the subject of infringing or misappropriating activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Balluun to locate such material; (d) information reasonably sufficient to permit Balluun to contact you, such as an address, telephone number, and, if available, an e-mail address; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by you as the owner of the intellectual property right in question, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are, the owner of the intellectual property right that is allegedly infringed. Balluun's designated intellectual property rights agent to receive notifications of claimed infringement or misappropriation under this Section 12 is:
Attn: Copyright Agent
950 Tower Lane, Suite 1775
Foster City, CA 94404
Tel: (650) 576-3727
Fax: (650) 745-1030
12.3 Only intellectual property rights-related notices should be sent to the intellectual property rights agent; any other communications sent to the intellectual property rights agent will be destroyed. DMCA and other copyright-related notices should be sent to the copyright agent designated in Section 11.3 above.
13. Services Availability & Support.
13.1 Balluun will make the Services available to you consistent with the manner in which Balluun makes the Services generally available to other users of the Services. You acknowledge and agree that the form and nature of the Services, or any individual Service, which Balluun currently provides may change from time-to-time without prior notice to you, subject to the terms in Section 5.6. Examples of changes to the form and nature of the Services include, without limitation, changes to Transaction Fees, fees and payment policies, security patches, additional functionality, reduced functionality, and other enhancements. By continuing to use the Services, you are indicating your acceptance of such changes which Balluun may make at any time in its sole discretion.
13.2 Balluun does not make any representations or guarantees regarding uptime or availability of the Services. Balluun does not guarantee that the Services will meet any particular service level, or that any Payments or other transactions or activities carried out through the Services will be carried out in any specific timeframe. The Services may be unavailable at certain times, including during any unanticipated or unscheduled downtime or unavailability of all or any portion of the Services as a result of system failures or force majeure events described in Section 23.7. Balluun will use commercially reasonable efforts, circumstances permitting, to provide information regarding any such Services interruptions and the restoration of use of, and access to, the Services following any Services interruption, including by information posted on the Site or sent to your registered e-mail address.
13.3 Balluun may temporarily suspend your access to any portion or all of the Services and your Content if Balluun reasonably determines that: (a) there is a threat or attack on the Services (including a denial of service attack) or other event that may create a risk to the Services, you or any other Services user; (b) your use of the Services or your Content disrupts or poses a security risk to the Services or any other Services user, may harm Balluun's systems or any other Services user, or may subject Balluun or any third party to liability; (c) you are using the Services for fraudulent or illegal activities; (d) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) you are using the Site, App, Services or other Balluun property in breach of these Terms; (f) you are in default of your payment obligations hereunder; (g) you breach or threaten to breach your Terms of Sale or other binding legal obligations; or (h) there is an unusual spike or increase in your use of the Services (collectively, "Services Suspensions"). Balluun will use commercially reasonable efforts, circumstances permitting, to provide written notice of any Services Suspension to you (including notices posted on the Site or sent to your registered e-mail address) and to provide updates regarding resumption (if any) of the Services following any Services Suspension. Balluun will have no liability for any damage, liabilities, losses (including, without limitation, any loss of data or profits) or any other consequences that you or any third party may incur as a result of any Services Suspension.
13.4 Balluun will provide customer service and support to you to the extent such support is generally made available without charge to other users of the Services.
14.1 Balluun will use commercially reasonable efforts to establish and maintain administrative, technical and physical safeguards in connection with Balluun's internal data center facilities, servers, networking equipment, and host software systems that are within Balluun's reasonable control, and that are used to provide the Services, that are designed to: (a) protect the security and integrity of the Balluun network; (b) guard against anticipated threats or hazards to the security and integrity of the Balluun network; and (c) protect against the accidental or unauthorized access, use, alteration or disclosure of your Content. The safeguards will be at least equal to the generally accepted security standards within the information technology industry.
14.2 You are solely responsible for properly configuring and using the Services and taking your own steps to maintain appropriate security, protection and backup of your Content, including using encryption technology to protect your Content from unauthorized access and routinely archiving your Content. Except as set forth in Section 14.1 above, Balluun is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, your Content or other data that you submit or use in connection with your Account or the Services.
15. Exclusion of Warranties.
15.1 YOUR USE OF THE SITE, APP AND SERVICES IS ENTIRELY AT YOUR OWN DISCRETION AND RISK. THE SITE, APP AND SERVICES ARE FURNISHED TO YOU "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. BALLUUN, ON BEHALF OF ITSELF, AND ON BEHALF OF ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS, AND THIRD PARTY SERVICE PROVIDERS, AND BALLUUN'S AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS, (COLLECTIVELY, THE "BALLUUN PARTIES"): (A) EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SITE, APP, SERVICES, OR PRODUCTS, SERVICES, DATA OR OTHER INFORMATION PROVIDED THROUGH THE SERVICES (INCLUDING, WITHOUT LIMITATION PRODUCTS AND SERVICES YOU PURCHASE FROM ANY SELLER THROUGH THE SERVICES), WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, STABLE, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF THEIR ACCURACY, SAFETY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, PRODUCTS AND SERVICES YOU PURCHASE FROM ANY SELLER THROUGH THE SERVICES). YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND ANY PRODUCTS OR SERVICES THAT YOU OBTAIN FROM ANY SELLER, OR PROVIDE TO ANY BUYER, THROUGH THE SERVICES.
15.2 THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND BALLUUN. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BALLUUN OR ANY PERSON ON BEHALF OF BALLUUN SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
15.3 NOTHING IN THESE TERMS, THIS SECTION 15, OR SECTION 16 BELOW, SHALL EXCLUDE OR LIMIT BALLUUN'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
16. Limitation of Liability.
16.1 SUBJECT TO SECTION 15.3 ABOVE, IN NO EVENT WILL BALLUUN OR THE BALLUUN PARTIES BE LIABLE TO YOU, ANY REGISTERED USER, BUYER, SELLER, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS (INCLUDING, WITHOUT LIMITATION, ANY LOSS RELATING TO ANY PRODUCT(S) OR SERVICE(S) YOU PURCHASE FROM ANY SELLER, OR SELL TO ANY BUYER, THROUGH THE SERVICES), OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY), EVEN IF BALLUUN OR THE BALLUUN PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.2 BALLUUN AND THE BALLUUN PARTIES WILL NOT BE LIABLE TO YOU, ANY REGISTERED USER, BUYER, SELLER, OR ANY THIRD PARTY FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY RELATED TO THE SITE, APP OR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATING TO ANY PRODUCT(S) OR SERVICE(S) YOU PURCHASE FROM ANY SELLER, OR SELL TO ANY BUYER, THROUGH THE SERVICES). IF, NOTWITHSTANDING THE FOREGOING, BALLUUN OR ONE OF THE BALLUUN PARTIES IS FOUND TO BE LIABLE TO YOU, ANY REGISTERED USER, BUYER, SELLER, OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, BALLUUN OR THE RELEVANT BALLUUN PARTY'S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT OF ANY TRANSACTION FEES OR OTHER FEES ACTUALLY PAID BY YOU, TO BALLUUN DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO BALLUUN OR THE RELEVANT BALLUUN PARTY'S LIABILITY; AND (B) FIVE HUNDRED UNITED STATES DOLLARS (US$500).
17.1 You hereby agree to indemnify, defend and hold harmless Balluun and the Balluun Parties (each an "Indemnified Party"), from and against any and all liability and costs (including, without limitation, attorneys' fees and costs) incurred by the Indemnified Party(s) in connection with any actual or alleged claim arising out of: (a) your use of the Site, App or Services; (b) any breach or alleged breach by you of these Terms, your Terms of Sale, or other binding legal obligations; (c) any Content provided by you (including, without limitation, Content displayed on your Storefront, and Content provided by you in the form of feedback and/or ratings concerning Buyers or Sellers); (d) any Feedback provided by you; (e) any breach or alleged breach by you of a third party's rights, including, without limitation, any intellectual property, privacy or publicity rights; (f) any damage caused by or alleged to have been caused by you to the Site or Services; or (g) any actual or alleged violation or non-compliance by you with any applicable law, rule or regulation, including without limitation, those governing consumer protection, unfair competition, anti-discrimination or false advertising.
17.2 Counsel you select for the defense or settlement of a claim must be consented to by the Indemnified Party(s) prior to counsel being engaged to represent you and the Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Indemnified Party(s) in the defense or settlement of any claim. Balluun and/or the other Indemnified Party(s) reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of Balluun or any other Indemnified Party(s) without the prior written consent of Balluun and/or the other Indemnified Party(s).
18.1 You hereby release Balluun and each of the Balluun Parties from and against any and all demands, claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses of any kind, including but not limited to, personal injuries, death and property damage, that arise from, out of, or in connection with, or incident to, directly or indirectly, the use of the Site, App, Services, and/or Content, including, without limitation, any products or services that you provide to any Buyer, or obtain from any Seller, through the Services.
19. Time Limitation.
19.1 Any cause of action arising under these Terms must be commenced by you within one (1) year after the claim or cause of action arises.
20. Termination of Services.
20.1 Provided that you are not currently engaged in any transactions as a Buyer or Seller, you may stop using the Services at any time by closing your Account, or ceasing to use the Services. In such event, you will not be entitled to any refund of any fees that you have paid prior to you ceasing to use the Services.
20.2 Balluun reserves the right in its sole discretion to cease or suspend providing all or any part of the Services immediately without any notice to you, if: (a) you breach, or threaten to breach, or are suspected of having breached, these Terms, your Terms of Sale, or any other binding legal obligations; (b) Balluun is required to do so under any applicable law, rule or regulation; (c) the Services rely on data, services or another business relationship between Balluun and a third party service provider, and such relationship terminates or changes in such a way that affects Balluun's ability to continue providing the Services; (d) continuing to provide the Services could create a substantial economic burden on Balluun as determined by Balluun in its sole discretion; (e) continuing to provide the Services could create a security risk or material technical burden as determined by Balluun in its sole discretion; or (f) Balluun otherwise determines in it sole discretion, that it no longer wishes to provide the Services, or a portion of the Services.
20.3 If your use of the Services is terminated or suspended pursuant to Sections 20.1 or 20.2 above, except to the extent prohibited by any applicable law, rule or regulation, you will have access to, and the ability to export, your Content for a period of thirty (30) calendar days following such termination or suspension, after which all your Content will be destroyed. Without limiting the foregoing, the rights set forth in this Section 20.3 are subject to your payment of any outstanding Transaction Fees or other applicable fees due upon and after termination of your use of the Services.
20.4 Any of your obligations under these Terms which by their nature are intended to survive the termination of your use of the Services shall continue to apply to you after you cease to use the Services.
20.5 Balluun may take any legal action against you to enforce these Terms or to prevent the breach of these Terms, including, without limitation, seeking equitable remedies or using technical means at its disposal. In addition to any other legal, equitable or technical rights and remedies that it may have, Balluun may without limitation, immediately terminate or suspend your use of the Services and access to your Content, if Balluun believes in its sole discretion that you are violating these Terms, or that you intend to do so.
20.6 Balluun may notify the relevant law enforcement authorities or other third parties, of any illegal or other prohibited conduct by you, including, without limitation, your actual, threatened or suspected violation of these Terms, or any other binding legal obligations, or unauthorized use of the Site, App or Services.
21. Governing Law and Venue.
21.1 These Terms will be construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules. Except as set forth below in Section 21.2, the federal and state courts seated in Santa Clara, San Mateo and San Francisco Counties, California, shall have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, these Terms and you hereby irrevocably waive any objection to such exclusive jurisdiction; provided however, that Balluun may seek to enforce any judgment in its favor in any court of competent jurisdiction.
21.2 Notwithstanding the foregoing, Balluun may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its proprietary and other rights. You agree that your breach of these Terms may result in immediate and irreparable damage to Balluun for which there is no adequate remedy at law.
21.3 The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from these Terms, including, without limitation, application to the Site or Services. Furthermore, these Terms (including without limitation, the Site and Services) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
21.4 Any cause of action arising under these Terms must be commenced by you within one (1) year after the claim or cause of action arises.
22. Third Party Web Sites.
22.1 The Site, App and Services may provide links to other web sites that are not owned or operated by Balluun ("Third Party Web Sites"). Balluun provides these links to you as a convenience only, and Balluun does not verify, make any representations concerning, or take responsibility for, such Third Party Web Sites, or the products or services offered through such Third Party Web Sites, including, without limitation, the truthfulness, accuracy, quality, or completeness of the content of, or activities conducted on, such Third Party Web Sites. You should use your own independent judgment before accessing and using such Third Party Web Sites, or products or services offered through such Third Party Web Sites.
22.3 Any reference on the Site or App, or through the Services, to any product, process, publication or service of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise, does not constitute or imply Balluun's endorsement or recommendation thereof, and your use of any Third Party Web Sites and third party product, process, publication, or service is entirely at your own risk.
23. Miscellaneous Legal Terms.
23.2 The failure of Balluun to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
23.3 If any part of these Terms is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of these Terms, and the other parts will remain in full force and effect.
23.4 Any notice or other communications by Balluun relating to the Site, App or Services may be made by letter, e-mail or posting on the Site, and you hereby consent to receive notices and other communications in electronic form to the extent permitted by applicable law.
23.5 These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each Balluun Party and Indemnified Party shall be a third party beneficiary hereunder and accordingly, shall be entitled to directly enforce and rely upon any provision of these Terms that confers a right or remedy in favor of it.
23.6 Balluun may assign or transfer its rights, or delegate any performance, under these Terms to a third party in its sole discretion. You may not assign or otherwise transfer your rights, or delegate your performance, under these Terms to any third party without in each and every case, Balluun's express prior written consent.
23.7 Balluun will not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of the common enemy, earthquake, fire, flood or other acts of God, the elements, epidemics, labor conditions, power failures, Internet disturbances, or other force majeure event.
23.8 You may not access the Services if you are a direct competitor of Balluun's, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.