These Terms of Use set forth the legally binding terms (“Terms of Use“) between us, babyark Inc. (“babyark“, “Company”, “us“, “our“, and “we”) and yourself (“User”, “you” or “your“), with respect to your use of our website located at https://babyark.com/ including any of its subdomains (the “Site“), our mobile application (the “App“), and any products (the “Products“) and services provided through them ( collectively, the “Services”).

 

BY ACCESSING OR USING OUR SERVICES, YOU ARE ACCEPTING THESE TERMS OF USE AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS OF USE, AND TO BIND YOU TO THESE TERMS OF USE. YOU MAY NOT ACCESS OR USE THE SERVICES, OR ACCEPT THESE TERMS OF USE IF YOU ARE NOT AT LEAST 18 YEARS OLD. THE SERVICES ARE PROVIDED “AS-IS” AND AS AVAILABLE AND BABYARK (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NONINFRINGEMENT.

 

Our Privacy Policy as well as our Shipping and Returns Policy are incorporated into these Terms of Use and form an integral part of these Terms of Use, and each forms a legally binding agreement between you and us. By using the Services or clicking “I accept” or any similar button, you agree to these Terms of Use and any other agreement incorporated into them. If you do not agree to any of the above, you should exit our Site and App and not use the Services.

 

1. PURCHASE TERMS

1.1. General.

(a) By placing any order with us, you make an offer to purchase Products from us in accordance with these Terms of Use. We may accept or reject any orders that we receive.
(b) If we accept any orders, a binding contract between you and us will arise and at all times will be subject to these Terms of Use ("Contract"). The Contract may only be amended by written agreement between you and us.

(c) You warrant to babyark that all information you provide in relation to any order is complete, true and accurate (including your name and delivery address (if applicable)).

 

1.2. Price.

(a) All current prices for any Products offered by us are available on our Site. The price you pay for the Products will be the price shown on our Site at the time that you make an order.
(b) Prices for the Products will be subject to alteration by us without notice from time to time. All Products are sold and provided subject to applicable taxes unless the Products are classified as exempted.

 

1.3. Products.

(a) We cannot guarantee that our online displays of Products will be accurate. All descriptions of our Products are subject to change at any time without notice, at our absolute discretion.
(b) Our Products are intended only for the purpose described and not for any other purpose. We make no representation as to the fitness of the Products for any other purpose. We will not be responsible in any way if the Products are modified in any manner from the condition in which it was supplied to you. We will not be responsible in any way if the Products are modified in any manner from the condition in which they were supplied to you.
(c) Any products specified as being suitable for use by children or infants requires careful and proper adult supervision, and should be carefully selected. Products must only be used by children of an appropriate age (as specified in the product guidelines).

 

1.4. Promotions.

(a) From time to time, we may offer seasonal or promotional pricing options on our Products. We reserve the right to change or cancel our promotions at any time.
(b) Unless otherwise stated, online discounts are not applicable to any other forms of ordering (including fax, mail, e-mail, phone orders or in-store) and vice versa.
((c) Unless otherwise stated, promotional codes may not be eligible for use on some Products that have already been discounted.

 

1.5. Payment processing.

Any payments made in connection with the Services shall be made through third party vendors (the "Payment Processor"), in accordance with the purchase and payment terms of such third party service providers. Applicable fees may apply. Payments of fees will be subject to the terms, conditions and privacy policies of the applicable Payment Processor. We are not responsible for any error by the Payment Processor. Users wishing to activate any protection mechanisms offered by a Payment Processor should do so by contacting the Payment Processor directly. You agree to provide the Payment Processor with accurate information regarding your credit card or other payment instrument. Any taxes applicable to you with regard to transactions made in accordance with these Terms of Use and according to applicable law will be borne by you exclusively. All fees are non-refundable. Unless otherwise stated, fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with of your transactions. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against our income, property and employees.
Please be advised that we do not directly process any payments, and shall have no liability for any failure to complete any transaction for any reason, including without limitation, due to expiry of Customers' payment method, fraud etc.

 

1.6. Delivery.

(a) Delivery fees are calculated at checkout.

(b) You acknowledge that babyark is not liable for any incorrect person accepting the delivery of your order at the delivery address you provided at the time of placing the order.
(c) All delivery dates are estimates only and you acknowledge and agree that babyark will not be liable to you for any delays or failure to meet such estimated delivery dates for any reason.
(d) Risk in the ordered Products passes to you upon delivery. Title to the ordered products passes to you upon a full payment of all amounts owed with respect to the Products purchased by you.

(e) We will make reasonable efforts to avoid any delay in the dispatch of Product(s) sold through our Services, however, we will not be liable for any delays resulting from postal delays or any events outside of our reasonable control. If no one is available at your address to take delivery, the Product(s) will be returned to us or to our provider’s nearest location, in which case, you will be notified and required to contact us to rearrange delivery.

 

1.7. Cancellation of orders.

(a) Please confirm the details of any orders carefully (including the type of Products ordered and the quantities ordered) as we may not be able to change or cancel orders without additional charges once we have accepted your order.

(b) If you cancel any orders for the Products, you are liable for any losses incurred by us, including but not limited to any loss of profits and any delivery costs for Products that have already been dispatched.

(c) Subject to your selected method of payment, upon any cancellation of an order by you, you agree that we may charge you additional surcharges on that transaction from our third party services providers.

(d) babyark reserves the right to cancel an order at any time before delivery, for whatever reason, including where: (i) there is an event beyond our control, such as elements of nature or acts of God (including storms, fires, floods, cyclones, tidal waves, landslides or earthquakes), acts of war, terrorism, strike, lockout or other labor difficulties, embargo and failure of supply of electricity, heat or light to a premises, which results in babyark not being able to supply the products within a reasonable time to you; and (ii) babyark suppliers are unable to supply the Products that they have promised to supply. Where babyark cancels any order prior to delivery, we will notify you and refund to you the payment made for that order.

 

1.8. Returns.

As a consumer, you are legally afforded certain rights in relation to the Products, in case the Product(s) are faulty or not as described. We are under a legal duty to supply Product(s) that are in conformity with this contract and with your order. Nothing in these Terms of Use shall affect your statutory rights. If you changed your mind or you are not happy with a Product you received, you can easily return it within 100 days of your purchase. Just complete the return form or send us an email to contact@babyark.com, and we will guide you through the process. For more information, see our Shipping and Returns Policy . Once we have received the returned Product(s), we will reimburse you the cost of your order (excluding delivery charges) within 30 days from the day the Product(s) was received by us, or of you providing sufficient evidence of having returned the Product(s) to us. We will only make refunds to the same method of payment which you used to make your purchase.

 

1.9. Shipping.

To learn more about our shipping times, pricing and options, please see our Shipping and Returns Policy.

 

1.10. Pre-orders.

We may offer you to pre-order Products online before they are available in Company's stock ("Pre-Order Products"). If you purchase a Pre-Order Product, you will be charged immediately. For more information, see our Shipping and Returns Policy.

 

2. PROPRIETARY RIGHTS

2.1. “babyark” and the “babyark” Logo are protected trademarks of Company. Company’s trademarks may not be used without Company’s written permission. Other trademarks, service marks, and trade names that appear on the Services may be registered marks of their respective owners and you are not permitted to use them without the consent of such owners.
2.2. Company retains all rights, titles and ownership in and to the Services or any part thereof, including without limitation, their design and layout, information, contents, copyrights, patents, trademarks, service marks and logos, database whether registered or not (the “Materials“), except as expressly excluded in these Terms of Use.

2.3. You are granted only a limited and revocable right to use the Services, subject to the terms of these Terms of Use, and for personal use only. Under no circumstances will you acquire any right, interest or title to any part of the Services or the Materials.

 

3. ACCOUNTS

 

3.1. In order to use certain features of the Services (e.g., to make a purchase or use the App), you may need to register for an account (“Company Account”) and provide certain information about yourself and about your child, as prompted by the Services registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) You will maintain the accuracy of such information.

3.2. You may delete your Company Account at any time, for any reason, by following the instructions on the Services. Company may suspend or terminate Your Company Account in cases such as suspected unauthorized use of Your Company Account, or any other breach of security, Company policies, contracts, applicable laws, or if otherwise Company reasonably deems such action necessary in order to protect its interests, at Company’s sole discretion.
3.3. Company will not be liable for any loss or damage arising from such suspension or termination, or from your failure to comply with the above requirements. Furthermore, Company will not be liable for any loss or damage arising from any unauthorized access to your Company Account.
3.4. You are solely responsible for the activity that occurs in your Company Account, and you must keep your Company Account password secure. You must notify us immediately of any breach of security or unauthorized use of your Company Account.

 

4. ACCEPTABLE USE POLICY: RESTRICTIONS ON USE

 

4.1 Your use of the Services is subject to the following restrictions:

4.1.1 You may not use, sell, rent, lease, copy, modify, distribute, redistribute, license, publicly perform or display, publish, edit, create derivative works from, or otherwise make unauthorized use of the Materials or any of the Company's Services without the Company’s prior explicit written consent; Likewise, You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services, without the Company’s prior explicit written consent;

4.1.2. Except as expressly stated herein, no part of the Services or Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, without the Company’s prior explicit written consent;

4.1.3. You shall not access or use the Services in order to build a similar or competitive service;

4.1.4. You may not use the Services or Materials in connection with material that promotes illegal activities, or the violation of any local, state, national, or international law or regulation, including, without limitation, laws governing intellectual property and other proprietary rights (including, but not limited to, patents, trademarks, trade secrets, copyrights, or any confidential, proprietary or trade secret information of any third party), information protection and privacy;

4.1.5. You shall comply with the applicable rules and laws related to the Services;

4.1.6. The Services may not be used or accessed by any automated machine, bot, spider, or such other automated feature or service;

4.1.7. You shall not impersonate any person or entity or otherwise misrepresent affiliation, connection or association with any person or entity, or use any fraudulent, misleading or inaccurate contact information;

4.1.8. You may not remove, circumvent, disable, damage or otherwise interfere with any features of the Services, or attempt to gain unauthorized access to any portion of the Services through any means, or interfere with, corrupt, or disrupt the operation or performance of the Services or the ability of any other person to use them, including, without limitation, in connection to your use of any viruses, worms, Trojan horses, or other destructive items or harmful codes, or placing excessive load on the servers, or attempting to degrade the performance of the servers in any way;

4.1.9. You may not violate other users’ or third parties’ rights to privacy, publicity and other rights, or harvest, scrape, data aggregate, data mine, screen scrape, index or collect data and information about other users or third parties without their consent, whether manually, or automatically with the use of any means, including without limitation bots, crawlers, spiders, sifters and load testers, without the express written consent of the Company, or engage in testing, pen-testing, sniffing or monitoring of the Services, or Company’s systems, software or hardware in any way;

4.1.10. You may not use the Services or Materials in connection with any material which a reasonable person could deem to be: offensive, inaccurate, incomplete, abusive, obscene, objectionable, defamatory, libelous, fraudulent or deceptive, indecent, pornographic, profane, threatening, advocating harassment or intimidation, distressing, vulgar, hateful, malicious, harmful for minors, racially or ethnically offensive, advocating racism, bigotry, hatred or physical harm of any kind against any group or individual, or disparaging the religious, political, or legal agenda of any person or entity, or is otherwise inconsistent with these Terms of Use including any of our policies;

4.2. Company reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Company will not be liable to You or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.

4.3. The Services are not intended for use by individuals below the age of majority ("Minor(s)"). Instead, they are specifically tailored for the engagement and involvement of the parents or legal guardians of such individuals. Accordingly, explicit consent from such parent or legal guardian is required in order to provide the Services. The Company retains the right to request and verify parental or legal guardian consent through reasonable means. Discovery of a user as a Minor without verified parental or legal guardian consent may result in the suspension or termination of the account, with denial of access to the Services.

5.THIRD PARTY SERVICES

 

5.1. The Services might contain links to third party services, websites or advertisements for third parties (collectively, “Third Party Services“). Such Third Party Services are not under the control of babyark and babyark is not responsible for any Third Party Services. babyark provides these Third Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Services. You use all Third Party Services at your own risk.

5.2. When you use a Third Party Service, the applicable third party’s terms and policies apply, including such third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Services.6. PRIVACY
We will use any personal information that we may collect or obtain in connection with the Services in accordance with our Privacy Policy, which is available at Privacy Policy Page.

 

7. APP STORES ADDITIONAL TERMS
   

7.1. You acknowledge that these Terms of Use are between you and Company and not with Apple Inc. ("Apple") or Google Inc. ("Google"). The Google Play Store or the Apple App Store have their own terms and conditions to which you must agree to abide by before downloading the App from them.

7.2. You agree to comply with, and your license to use Company Services is conditioned upon your compliance with, all applicable terms and conditions of the Google Play Store or the Apple App Store.

7.3. Please note that the following terms apply in addition to all other provisions in this Agreement, if you downloaded Company Services to your mobile device from the Apple App Store or Google Play Store.

7.4. You acknowledge and agree that: Apple has no obligation to furnish any maintenance and support services with respect to Company Services or handle any warranty claims. Apple is not responsible for addressing any claims you have relating to the Services, including product liability claims, consumer protection claims, intellectual property infringement claims, or any claim that the Services fails to conform to any applicable legal or regulatory requirement. Apple and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use and that, upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary thereof. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Services to you (if applicable) and to the maximum extent permitted by applicable law, and Apple will have no other warranty obligation whatsoever with respect to the Services. Any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company, in accordance with the provisions of these Terms of Use. Apple shall not be responsible nor shall you refer to Apple any claim of any third party that the Services or your possession and use of the Services infringes that third party’s intellectual property rights.

 

8.DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

8.1. THE SERVICES ARE PROVIDED ON AN AS-IS AND AS AVAILABLE BASIS. WE MAKE NO WARRANTY THAT THE SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, OR LEGAL. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

8.2. EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS OF USE OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY IS NOT LIABLE FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THERE FROM, ARISING FROM THESE TERMS OF USE OR YOUR USE OR INABILITY TO USE THE SERVICES. ACCESS TO, AND USE OF, THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. PLEASE NOTE THAT USING THE SERVICES DOES NOT REPLACES SAFE DRIVING, IN ACCORDANCE WITH THE APPLICABLE LAWS AND REGULATIONS, AND ANY OTHER LEGAL REQUIREMENTS APPLYING TO DRIVING WITH CHILDREN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS OF USE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50).9.INDEMNITY
If any third party (including, but not limited to, a regulatory or governmental authority) brings any kind of demand, claim, suit, action or proceeding against Company, Company's affiliate, and/or any of our respective directors, officers, employees, or representatives (each, an “Indemnitee”), and it is based upon or arises from: your use of the Services; and/or
your breach of any provision of these Terms of Use (each of the foregoing, an “Indemnity Claim”) then, upon written request by Company (to be decided in our sole discretion), you agree to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (i) Company reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases you agree to reasonably cooperate with Company's defense activities at your own cost and expense; and (ii) you shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).10.TERM AND TERMINATION
10.1. Subject to this Section, these Terms of Use will remain in full force and effect while you use the Services. We may (a) suspend your rights to use the Services, or (b) terminate these Terms of Use, at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms of Use.

10.2. Upon termination of these Terms of Use, your Company Account and right to access and use the Services will terminate immediately. Company will not have any liability whatsoever to you for any termination of these Terms of Use.

10.3. The provisions of these Terms of Use that, by their nature and content, must survive the termination of these Terms of Use in order to achieve the fundamental purposes of these Terms of Use shall so survive. Without limiting the generality of the foregoing, the Proprietary Rights, Disclaimers of Warranties, Limitation of Liability, Governing Law and Jurisdiction and General sections, will survive the termination or expiration of the Terms of Use.

 

11. CHANGES TO THE SERVICES

 

We reserve the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently, in whole or in party, the Services without notice, at any time. You agree that your continued use of the Services following such modifications constitutes your acceptance of such modifications.

 

12. GOVERNING LAW AND JURISDICTION

 

These Terms of Use are governed by the laws of the State of Delaware and the courts in the State of Delaware, United States will have jurisdiction; however, Company may bring suit for payment in the country where you are located.

 

13. GENERAL

 

Changes to Terms. Company may change these Terms of Use from time to time, and such change will become effective upon the date on which it is posted on the Site or App. You are responsible for checking the Site and App regularly for such changes. By continuing to access or use the Services, you agree to be bound by the revised Terms of Use.
Severability. If any part of these Terms of Use is deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severable from the rest of these Terms of Use and shall not affect the validity and enforceability of any of the remaining provisions of these Terms of Use. In such cases, the part deemed invalid or unenforceable shall be construed in a manner consistent with applicable law to reflect, as closely as possible, the original intent of the parties.

 

Waiver. No failure or delay on the part of any party in exercising any right or remedy under these Terms of Use shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.

Relationship. Nothing in these Terms of Use shall be construed as creating any agency, partnership, trust arrangement, fiduciary relationship or any other form of joint enterprise between you and Company.

Entire Agreement. These Terms of Use contain the entire agreement between Company and you relating to your use of the Services and supersedes any and all prior agreements between Company and you in relation to the same. You confirm that, in agreeing to accept these Terms of Use, You have not relied on any representation except as has expressly been made by Company in these Terms of Use.

Assignment. You may not assign your rights or delegate your obligations under these Terms of Use without Company's prior written consent. Any purported assignment contrary to this section will be null and void and without effect. Company may assign its obligations under these Terms without your consent and without notice or obligation to you.

No Third-Party Rights. There are no third-party beneficiaries to these Terms of Use.
Force Majeure. Company shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond Company's reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Services shall not be deemed within Company's reasonable control.

Communication. If you have any questions about these Terms of Use or about the Company in general, please contact us at: contact@babyark.com. Subject to the content of your inquiry, Company may request that you provide additional information in order to allow the appropriate handling of your inquiry.

babyark Inc.

8 The green A, Dover, DE, 19901, USA