TERMS AND CONDITIONS
Last Updated 10/13/2016
This General Terms and Conditions of Use (this “TCU”) sets forth the terms and conditions under which Blueberry, Inc., a Delaware corporation (“Blueberry,” “we,” or “us”) provides you access to, and governs your use of, the website located at www.blueberryhome.com (the “Site”), and the information, content, features and curation services provided through the Site (collectively, the “Service”).
YOUR USE OF THE SITE AND/OR THE SERVICE, OR BY CLICKING “I ACCEPT” IF PRESENTED WITH THIS TCU IN A CLICK-THROUGH FORMAT, SIGNIFIES YOUR AGREEMENT TO THIS TCU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TCU, INCLUDING ANY MODIFICATIONS THAT BLUEBERRY MAKES FROM TIME TO TIME. If you do not agree to this TCU, you may not use the Site or the Service.
2. The Service. In exchange for any applicable fees and subject to certain limitations as described herein, you will be granted the right to use the Site and Services. Blueberry reserves the right to add, change, modify, suspend or discontinue any portion of the Site and/or Service, in its sole and absolute discretion, at any time. Your use of any new portion of the Service, including the availability of new services or products through the Site, shall be subject to this TCU. In addition, Blueberry may impose limits on any portion of the Service or restrict your access to portions of or the entire Site in its sole and absolute discretion without notice or liability. Blueberry’s Site curates group services generally relating to home maintenance and repairs. Certain users of Blueberry’s Services can be broadly categorized as Contractors who provide those services, certain users of the Site can be broadly categorized as associates who create content, such as recommendations (“Associates”), and certain other users can be broadly characterized as purchasers of the Contractor’s services (“Purchasers”). Contractors and any and all other service providers (“Contractors,”) that use the 1 Blueberry Site and Services hereby agree to implement the best practices utilized by their trade or profession and certify that they are aware of and continuously educate themselves regarding the current best practices of their trade or profession. Contractors also agree to have and maintain all relevant licenses and appropriate insurance required in the relevant jurisdiction governing their trade or profession and/or where they are providing services, as appropriate.
a. Reviews of Users. As part of its curation of group services, Blueberry offers a forum to recommend Contractors. Blueberry does not endorse or warrant any Contractors and any recommendations are the opinions of the author of any such reviews. Blueberry limits participating Contractors to those Contractors who are recommended by purchasers or other Contractors; however, Blueberry does not routinely provide background checks or verify license information of those Contractors. Contractors hereby agree not to solicit recommendations from family members, company employees or any parties who have not personally and commercially used the Contractors services. Blueberry uses commercially reasonable efforts to ensure any recommendations are authentic but does not guarantee them as such. Blueberry has the right to remove specific recommendations and ratings at its sole and absolute discretion.
b. Service Availability. Blueberry reserves the right to change content options (including eligibility for particular features) at any time and for any reason(s) or lack therefore without notice. Blueberry does not guarantee any match a purchaser of services with a Contractor will occur or will occur when and as a purchaser requests; for example, the supply of qualified Contractors varies by type of task, regional availability, seasonal variability and other factors that may make such matching impractical or impossible.
c. Site Security. You agree not to violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security technology related to the Site for any reason—or to attempt or assist another personto do so. You agree not to access the products by any means other than through those methods provided by Blueberry.
3. Internet Access. You are responsible for any Internet connection and telecommunication fees and charges that you incur when accessing the Site and/or the Service.
4. Account Creation. To use certain portions of the Service, you will be directed to register on the Site and/or the Service and create an account (“Account”). As part of the registration process, you will be asked to submit your name, email address and/or similar information and to select a password. You agree that all information you provide to Blueberry for purposes of creating an account (“Registration Information”) will be true, accurate, current and complete and your failure to provide such information shall constitute a breach of this TCU and may result in the immediate termination of your Account. You shall (i) promptly update your Registration Information to keep it true, accurate, current and complete; and (ii) maintain the confidentiality of your password. In creating an Account, you shall not (a) select or use the email address oruser nameof another person with the intent to impersonate that person, (b) use a name subject to the rights of any other person without authorization, or (c) allow any other party to use your Account and/or password except assetforth herein. You may not share or transfer any Account, but you may permit your minor child to use an Account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your password to anyone other than a minor child as set forth herein. You agree to immediately notify Blueberry by sending an email to firstname.lastname@example.org of any known or suspected unauthorized use(s) of your Account or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your password. You understand and agree that you shall be liable for all activities that occur under any Account created for your use, even if such activities were not committed by you. Blueberry is not responsible for any loss or damage arising from your failure to maintain the confidentiality of your password.
a. Payments. Account users agree to pay Contractors within thirty (30) days of the completion of a project unless otherwise specified in writing by the Contractor and agreed to by the User. Blueberry does not store customer credit card or banking information, all such data are stored on a third-party, validated Level 1 PCI DDS Compliant Service Provider.
b. Disputes. Any disagreement between a purchaser of services and a Contractor must be resolved between those parties and without any involvement from Blueberry.
6. Termination of the Service. You understand and agree that you have no ownership rights in your Account and Blueberry may stop offering and/or supporting the Service at any time. Further, Blueberry may refuse to create an account or cancel your Account and delete all user specific settings and information associated with your Account at any time, without notice, for any reason or no reason including, without limitation, your violation of this TCU. You may cancel your Account at any time and cancellation will take effect immediately. Blueberry reserves the right to permanently restrict access to the Site and the Service to any users who have had their Accountscancelled. All fees paid and charges made prior to termination as provided herein are nonrefundable, including any advance charge. Termination of your account shall not relieve you of any obligations to pay accrued charges.
7. Use of Site and Service. You agree that you will not, in connection with your use of the Site or Service, violate any applicable law or regulation. Without limiting the foregoing, you agree not to (i) make available through the Site and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity); (ii) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Site and/or the Service or otherwise attempt to disrupt the Site and/or the Service or any other person’s use of the Site and/or the Service; or (iii) attempt to gain unauthorized access to the Site and/or the Service, Accounts registered to otherusers,or the computer systems or networks connected to the Site and/or the Service. Furthermore, you may not use the Site and/or the Service to develop, generate, transmit or store information that: (a) is defamatory, harmful, abusive, obscene or hateful; (b) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site and/or the Service, (c) performs any unsolicited commercial communication not permitted by applicable law; (d) constitutes harassment or a violation of privacy or threatens other people or groups of people; (e) is harmful to children in any manner; (f) violates any applicable law, regulation or ordinance; (g) makes any false, misleading or deceptive statement or representation regarding Blueberry and/or the Site and/or the Service or (h) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias). You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, email information of other Account holders or other data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or Service. The Site and the Service are operated by Blueberry in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
8. User Content.
a. You understand that all user-provided data, information, text, software, graphics, video, messages, tags, or other materials (“User Content”), whether publicly posted or privately transmitted, on the Site or through the use of the Site or the Service, are the sole responsibility of the person posting or transmitting such Content, whether created by Associates, Contractors or Purchasers. You alone are responsible for your User Content, and once published, it cannot always be withdrawn. Upon written request of the creator of any specific User Content to email@example.com, and subject to all the other terms of this TCU, Blueberry will make commercially reasonable efforts to remove User Content specifically identified by the creator of such content. You assume all risks associated with your User Content or with the use or User Content created by Associates, Contractors or Purchasers, including any disclosure by you of information in the User Content that makes you personally identifiable. You represent that you own, or have the necessary permissions to use and authorize the use of the User Content as described herein. You may not imply that any User Content is in any way sponsored or endorsed by Blueberry. You may expose yourself to liability if, for example, User Content you generate contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
b. Blueberry does not control the User Content posted on the Site or transmitted through the use of the Site to the Service and, as such, Blueberry does not guarantee, and shall not be responsible for any deficiencies relating to, the accuracy, reliability or quality of such User Content, including any and all recommendations made regarding the Contractors. Further, you acknowledge that Blueberry may or may not pre-screen User Content that is displayed on the Site or transmitted through the use of the Site or the Service.
c. You understand that by visiting the Site or using the Service, you may be exposed to User Content that you may considerto beoffensive, indecent or objectionable. Under no circumstances will Blueberry be liable in any way for any User Content including, but not limited to, any errors or omissions in any UserContent,or any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available on the Site or through the use of the Site or the Service.
d. However, you further understand that users providing recommendations regarding services are necessarily subjective opinions regarding specific experiences that may be different from your own experiences whether due to your perspective or another change of circumstances, and that such communications may be protected by law, including the First Amendment to the U.S. Constitution, or otherwise not actionable. You further agree that any disputes related to a recommendation created consistent with the requirements in this TCU by another user are subject to the Limitation of Liability provisions below.
e. Blueberry may use User Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms (“Other Media”). As such, you hereby irrevocably grant Blueberry a world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use User Content for any purpose. You also irrevocably grant the users of the Site and Services the right to access User Content in connection with their use of the Site and Services. You additionally, irrevocablywaive,and cause to be waived, against Blueberry and its users any claims and assertions of moral rights or attribution with respect to User Content. By “use” we mean use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of User Content.
a. Links from the Site. The Site may contain links to websites operated by other parties. Blueberry provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of Blueberry, and Blueberry is not responsible for the content available on the other sites. Such links do not imply Blueberry’s endorsement of information or material on any other site and Blueberry disclaims all liability with regard to your access to and use of such linked websites.
b. Links to the Site. To place a link to the Site on another website, you must adhere to Blueberry’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Blueberry’s and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Blueberry, (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linkingsite,and (iv) Blueberry reserves the right to revoke its consent to the link at any time and in its sole discretion.
10. Blueberry Intellectual Property. As between you and Blueberry, you own any User Content you generate. The interfaces, content, arrangement and layout of the Site and the Services including, but not limited to, the Blueberry trademark and logo, designs, text, artwork, graphics, images, buttons, user interfaces, information and other content, and any compilation of the foregoing (the “Blueberry Intellectual Property”), are the property of Blueberry, except where otherwise noted, and are protected from copying, imitation, communication, or simulation under U.S. and international laws and may not be reproduced, modified, communicated, displayed, distributed, or transmitted without the prior written permission of Blueberry. You understand and acknowledge that, by visiting the Site, you do not acquire or obtain by implication or otherwise, any license or right to use or make additional copies of any materials or information displayed on the Site or to any of the Services. You agree not to display or use any Blueberry Intellectual Property or third party content located on the Site in any manner not expressly permitted under this TCU.
11. Suggestions and Improvements. By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Yelp and its users any claims and assertions of any moral rights contained in such Feedback.
12. Children. The Site and the Service are not directed toward children under 13 years of age nor does Blueberry knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to Blueberry.
13. DISCLAIMER OF WARRANTIES. THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. BLUEBERRY MAKES NO WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND/OR THE SERVICE IS AT YOUR SOLE RISK. BLUEBERRY DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT THE SITE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BLUEBERRY PROVIDES NO WARRANTY OR GUARANTY OF ANY KIND THAT THE SITE OR THE SERVICE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
14. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BLUEBERRY OR ANY OF ITS AFFILIATES, TOGETHER WITH ITS RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND AGENTS, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS TCU, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) FOR ANY LOST OR CORRUPTED DATA, LOST PROFITS, LOSS OR DAMAGE TO ANY COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE AND/OR THE SERVICE, EVEN IF BLUEBERRY AND/OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (II) THE USE OR THE INABILITY TO USE THE SITE OR THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; (V) ANY OTHER MATTER RELATING TO THE SITE OR THE SERVICE; OR (IV) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BLUEBERRY’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE SHALL NOT EXCEED THE GREATER OF THE FEES YOU HAVE PAID TO BLUEBERRY IN THE PREVIOUS SIX (6) MONTHS OR ONE HUNDRED DOLLARS ($100). YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SITE OR ANY PORTION OF THE SERVICE IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE USE OF THE SITE AND THE SERVICE. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Blueberry and its affiliates shall be limited to the fullest extent permitted by law.
15. Indemnification. You agree to defend, indemnify and hold Blueberry, and its successors and assigns, and their respective officers, directors, affiliates, agents and employees, harmless from and against any and all claims, actions, proceedings and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) arising out of or relating to (i) your use or misuse of the Site or the Service, (ii) your breach or alleged breach of this TCU, (iii) your violation of any law, rule, regulation or rights of others in connection with your use of the Site or the Service, or (iv) infringement, violation or misappropriation of any copyright, trade secret, or any other intellectual property rights or the violation of any property or privacy right arising from any of the content that you post on the Site or transmit through the Service.
16. Governing Law; Jurisdiction. This TCU shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in the Binding Arbitration provision below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts locatedwithinSan Francisco, California and you agree to submit to the personal jurisdiction of such courts.
a. Arbitration Procedures. You and Blueberry agree that, except as provided in Section (d) below, all disputes, controversies and claims related to this TCU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this TCU. In the event of a conflict between the terms set forth in this Binding Arbitration provision and the JAMS Rules, the terms in this Binding Arbitration provision will control and prevail. Except as otherwise set forth in Section (d) below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this TCU, (i) you and Blueberry may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND BLUEBERRY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
b. Location. The arbitration will be conducted in San Francisco, California,unless the parties agree to video,phone and/or Internet connection appearances.
c. Limitations. You and Blueberry agree that any arbitration shall be limited to the Claim between Blueberry and you individually. YOU AND BLUEBERRY AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
d. Exceptions to Arbitration. You and Blueberry agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Blueberry’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
a. TCU Revisions You agree that no joint venture, partnership, employment, or agency relationship exists between you and Blueberry as a result of this TCU or your use of the Site, or the Service.
b. No Partnership You agree that no joint venture, partnership, employment, or agency relationship exists between you and Blueberry as a result of this TCU or your use of the Site, or the Service.
c. Assignment Blueberry may assign this TCU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign this TCU without Blueberry’s prior written consent, and any unauthorized assignment by you shall be null and void.
d. Severability. If any of the provisions of this TCU is found to be invalid or unenforceable, then that provision will be construed in a manner consistent with applicable laws to reflect, as nearly as possible, the original intentions of theparties,and the remaining provisions shall remain in full force and effect.
e. Attorneys’ Fees. In the event any litigation is brought by either party in connection with this TCU, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
f. No Waiver. The failure to enforce any provision of this TCU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this TCU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
g. Notices. All notices given by you or required under this TCU shall be in writing and addressedto:Blueberry, Inc., 401 Florence Street, Palo Alto, California, 94301, Attn: Chief Operating Officer.
h. Equitable Remedies. You hereby agree that Blueberry would be irreparably damaged if the terms of this TCU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this TCU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
i. English Version Prevails. This TCU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and the Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or the Service.
j. English Version Prevails. In the event that this Agreement is translated into other languages and there is a discrepancy between the two language versions, the English language version shall prevail to the extent that such discrepancy is the result of an error in translation.