Lau Brothers LLC Terms of Service

Last Updated: July 2016

These terms of service (“Terms”) apply to your access and use of all Lau Brothers LLC apps, websites, emails and other services that are related to the Baby Art product (collectively, the “Service”). The Service is owned and operated by Lau Brothers LLC and our affiliates (together hereafter referred to as “Baby Art”, “we”, “us”, “our”). “You” or “Your” means an adult user of the Services, or as the parent or guardian of any minor whom you allow access to the Services, and for whom you will be held strictly responsible. These Terms are a contract between you and Baby Art. These Terms do not apply to our products that are not related to Baby Art, which are Unsplurge and Genius Notepad. Please read these Terms carefully.

Accepting these Terms

If you access or use the Service, it means you agree to be bound by all of the terms below. So, before you use the Service, please read all of the terms. If you don’t agree to all of the terms below, please do not use the Service. Also, if a term does not make sense to you, please let us know by e-mailing main+babyart@laubrothersllc.com.

Changes to these Terms

We reserve the right to modify these Terms at any time. For instance, we may need to change these Terms if we come out with a new feature or for some other reason.

Whenever we make changes to these Terms, the changes are effective immediately after we post such revised Terms (indicated by revising the date at the top of these Terms) or upon your acceptance if we provide a mechanism for your immediate acceptance of the revised Terms. It is your responsibility to check Lau Brothers LLC for changes to these Terms.

If you continue to use the Service after the revised Terms go into effect, then you have accepted the changes to these Terms.

Privacy Policy

By using the Service, you acknowledge and agree that we will collect and store information about you in accordance with our Privacy Policy. We encourage you to read our Privacy Policy, as it is an integral part of these Terms.

You grant to Baby Art the right to collect and store your data as necessary to: (i) operate in accordance with these Terms; (ii) provide the Service; (iii) protect your data; and (iv) improve the Service and other related products and services, without violating the rights of any third party or otherwise obligating Baby Art to you or to any third party. Baby Art does not and will not assume any obligations with respect to your data or to your use of the Service other than as expressly set forth in the Terms and our Privacy, or as required by applicable law.

Third-Party Services

From time to time, we may provide you with links to third party websites or services that we do not own or control. Your use of the Service may also include the use of applications that are developed or owned by a third party. Your use of such third party applications, websites, and services is governed by that party’s own terms of service or privacy policies. We encourage you to read the terms and conditions and privacy policy of any third party application, website or service that you visit or use.

In order to provide you with the Services, we may make use of services provided by Microsoft Cognitive Services. Thus, when you agree to our Terms and use our Service, you are also agreeing to be bound by the Microsoft Cognitive Services Preview Terms and its associated privacy policy. We encourage you to read the Microsoft Cognitive Services Preview Terms at this website: http://go.microsoft.com/fwlink/?LinkId=533207

Intellectual Property Rights

We put a lot of effort into creating the Service including, the logo and all designs, text, graphics, pictures, information and other content (excluding your content). This property is owned by us or our licensors and it is protected by U.S. and international copyright laws. Baby Art hereby grants you a limited, revocable, personal, worldwide, royalty-free, non-exclusive, nonsublicensable and non- assignable license to use the Services solely for your personal use. Except as expressly permitted herein, you may not copy, further develop, reproduce, republish, modify, alter, download, post, broadcast, transmit or otherwise use the Services.

However, unless we expressly state otherwise, your rights do not include, without limiation: (i) publicly performing or publicly displaying the Service; (ii) modifying or otherwise making any derivative uses of the Service or any portion thereof; (iii) using any data mining, robots or similar data gathering or extraction methods; (iv) downloading (other than page caching) of any portion of the Service or any information contained therein; (v) reverse engineering or accessing the Service in order to build a competitive product or service; or (vi) using the Service other than for its intended purposes. If you do any of this stuff, we may terminate your use of the Service.

SUBSCRIPTION PRICING & TERMS

Baby Art is free to download, and many of the features require a subscription to access. All users are welcome to a free 7-day trial period. If you do not cancel at least 24 hours prior to the end of the free trial, you will be automatically charged according to the subscription option that you chose at the time you initiated the free trial. Payment will be charged to your credit card through your iTunes account at confirmation of purchase. Subscription renews automatically unless cancelled at least 24 hours prior to the end of the subscription period. There is no increase in price when renewing. Subscriptions can be managed and auto-renewal turned off in Account Settings in iTunes after purchase. Please see this website, created and maintained by Apple Inc., for specific instructions on managing your subscription for Baby Art: https://support.apple.com/en-us/HT202039. Once purchased, refunds will not be provided for any unused portion of the term.

Our Content

“Our Content” means any information that may be generated or encountered through use of the Service, such as data files, device characteristics, written text, software, music, graphics, photographs, images, sounds, videos, messages and any other like materials. You understand that by using the Service you may encounter examples of Our Content that you may find offensive, indecent, or objectionable. Baby Art does not guarantee the accuracy, integrity or quality of Our Content. You understand and agree that your use of the Service and any of Our Content is solely at your own risk.

Automatic Creation

The Service may provide functionality for the automatic creation of videos, slideshows, photo collages or other media (“Automatic Content”). If you choose to use the Service, then the Service will automatically access media, such as but not limited to data files, photos,  videos, messages and any other like materials, on your device and any other services that you grant us access to (“Your Content”), in order to create Automatic Content. By using the Service, you expressly allow Baby Art to automatically access Your Content for these purposes, and grant us a Baby Art shall not have any liability for the operation of the automatic creation functionality as described in this document.

Back up Your Content

You are responsible for backing up, to your own computer or other device, any important documents, images or other of Your Content that you store or access via the Service. Baby Art shall use reasonable skill and due care in providing the Service, but we do not guarantee or warrant that any of Your Content that you may store or access through the Service will not be subject to inadvertent damage, corruption or loss.

Changes to Content

You understand that in order to provide the Service, Baby Art may transmit Your Content across various public networks, in various media, and modify or change your Your Content to comply with technical requirements of connecting networks or devices or computers. You agree to permit Baby Art to take any such actions.

Hyperlinks and Third Party Content

You may create a hyperlink to the Service. But, you may not use, frame or utilize framing techniques to enclose any of our trademarks, logos or other proprietary information without our express written consent.

We makes no claim or representation regarding, and accepts no responsibility for third party websites accessible by hyperlink from the Service or websites linking to the Service. When you leave the Service, you should be aware that these Terms and our policies no longer govern.

If there is any content on the Service from you and others, we don’t review, verify or authenticate it, and it may include inaccuracies or false information. We make no representations, warranties, or guarantees relating to the quality, suitability, truth, accuracy or completeness of any content contained in the Service. You acknowledge sole responsibility for and assume all risk arising from your use of or reliance on any content.

Copyright Complaints

We take intellectual property rights seriously. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and, at our sole discretion, access to the service for users who are deemed to be repeat infringers.

Baby Art does not endorse any Submission or any opinion, recommendation, or advice expressed therein, and Baby Art expressly disclaims any and all liability in connection with Submissions. Baby Art does not permit copyright infringement or infringement of intellectual property rights on its Services. We will remove all any content posted on or related to our Service if properly notified of these infringements, and may do so at our sole discretion, without prior notice to users at any time.

Under the Digital Millennium Copyright Act of 1998 (the “DMCA”), it is our policy to respond to copyright owners who believe material appearing on the Services infringes their rights under US copyright law. If you believe that something appearing through the Services infringes your copyright, you may submit a notification pursuant to the DMCA by providing our Copyright Agent (information below) with the following information in writing (please see 17 U.S.C 512(c)(3) for further detail):

  • Your address, telephone number, and email address;
  • A description of the copyrighted work that you claim has been infringed;
  • A description of where the alleged infringing material is located;
  • A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
  • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

If you believe that such a notice was wrongly filed against you, the DMCA allows you to send a counter- notice to our Copyright Agent which shall include the following information:

  • Your name, address, telephone number, and e-mail address,
  • A description of the Submission that has been removed or to which access has been disabled;
  • A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content;
  • A statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement; and
  • Your physical or electronic signature.

Be aware that there can be substantial penalties for false claims. Send notices and counter-notices to us at Copyright, Lau Brothers LLC, 156 2nd Street, San Francisco, CA, 94131, or email: main+copyright@laubrothersllc.com. If you need to contact us for any other reason, please contact us at main@laubrothersllc.com or write us at Customer Service, Lau Brothers LLC, 156 2nd Street, San Francisco, CA, 94131

Is information collected from children?

We do not sell or ship any item ordered through the Service directly to anyone who we know to be under the age of 13, nor do we collect any personal information from any user who we know to be under the age of 13. If you are not at least 13 years old, you may not use the Service. By using our Service, you attest that you are at least 13 years old. Our Service is not intentionally targeted to users under the age of 13.

Additional Use Restrictions

The software and technology underlying the Services is the property of Baby Art, and you may not connect to or use the Services in any way that is not expressly permitted by these Terms. You may not do or attempt to do any of the following:

Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software used to provide the Services (including without limitation, for the purpose of obtaining unauthorized access to the Services) without our prior written authorization, including framing or mirroring any part of the Services;

Circumvent, disable, or otherwise interfere with security-related features of the Services, or features that prevent or restrict use or copying of any Automatic Content, including without limitation any edited or summarized videos;

Use the Automatic Content in connection with any commercial endeavors in any manner, except for the purposes specifically set forth in these Terms;

Sell, resell or otherwise monetize any Content to any third party, except as specifically set forth in these Terms;

Use any robot, spider, site search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services;

“Deep link” to the Services or any Content, unless such link was provided to you for that purpose by the Services;

Harvest, collect or mine information about other users of the Services;

Damage, disable, overburden, abuse, degrade, or impair the Service (or any network connected to the Service);

Knowingly transmit any virus, worm, defect, or any other item intended to destroy, surreptitiously interfere with, expropriate, or exert unauthorized control over any system or data or to defraud any person;

Remove, modify, or tamper with any notice or link that is incorporated into the Service;

Violate the Terms or any other rule or agreement applicable to you or Baby Art through the Services’ inclusion in, reference to, or relationship with any third party or third-party site or service, or your use of any such third-party site or service;

Remove, obscure, make illegible or alter any proprietary notices or labels or other indications of our rights in the Services;

Use or access another user’s account or password without permission; or

Use the Services or content thereon in any manner not permitted by these Terms.

Governing Law

The validity of these Terms and the rights, obligations, and relations of the parties under these Terms will be construed and determined under and in accordance with the laws of the State of California exclusive of its choice of law rules.

Disclaimer and Indemnification

THE SERVICE AND ANY OTHER SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE ARE PROVIDED TO YOU ON AN AS IS OR AS AVAILABLE BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. WE DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE.

IN NO EVENT WILL Lau Brothers LLC BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR ANY OTHER SERVICE AND/OR CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL LIABILITY FOR ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNT YOU PAID TO LAU BROTHERS LLC. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

You agree to defend, indemnify and hold us harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees, costs, penalties, interest and disbursements) we incur in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party relating to your use of the Service or the use of the Service by any person using your account, including any claim that your use of the Service violates any applicable law or regulation, or the rights of any third party, and/or your violation of these Terms.

Without limiting the foregoing, Baby Art shall have no liability for:

Any adverse effect to your computer, mobile device or other property as a result of your use of the Services, or as a result of any Automatic Content available through the Services;

Your use of (or inability to use) the Services thereof, including without limitation any Automatic Content and any transactions that involve the Services;

Any material available (or intended to be available) on or by means of the Services or information or advice received by means of the Services;

Any error or omission of Baby Art, or any act or omission of any third party;

Any error, delay, interruption, operational problem, unavailability, or failure in the Services, or any directly or indirectly related equipment, system, programming, or network (including the internet);

Any breach of security involving the Services or your account;

Any viruses or other code or component that may affect your computer system, mobile device or other property as a result of your use of the Services.

Binding Arbitration

You and Baby Art agree that, except as provided below, all disputes, controversies and claims related to these Terms (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 these Terms. In the event of a conflict between the terms set forth herein and the JAMS Rules, the terms herein will control and prevail.

Except as otherwise set forth herein, 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 Baby Art 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 these Terms, (a) you and Baby Art 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 (b) 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.

Location

The arbitration will be conducted in San Francisco, California, unless the parties agree to video, phone and/or internet connection appearances.

Limitations

You and Baby Art agree that any arbitration shall be limited to the Claim between Baby Art and you individually. YOU AND BABY ART 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.

Exceptions to Arbitration

You and Baby Art agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Baby Art’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) 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.

Arbitration Fees

If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If Baby Art initiates arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.

Termination

If you breach any of these Terms, we have the right to suspend or disable your access to or use of the Service.

Entire Agreement

These Terms constitute the entire agreement between you and Lau Brothers LLC regarding the use of the Service, superseding any prior agreements between you and Lau Brothers LLC relating to your use of the Service.

Severability

You and Baby Art agree that if any of the arbitration provisions are found illegal or unenforceable (except any portion under the “Exceptions to Arbitration” section), only those provisions that are found illegal or unenforceable shall be severed and the remainder of the provision shall be given full force and effect. If the provisions under the “Exceptions to Arbitration” section are found to be illegal or unenforceable then neither you nor Baby Art will elect to arbitrate any Claim falling within those provisions found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of San Francisco, California, and you and Baby Art agree to submit to the personal jurisdiction of that court.

Feedback

When you provide us with any feedback, comments or suggestions about the Service, these Terms and, in general, apps and services provided by Lau Brothers LLC, you irrevocably assign to us all of your right, title and interest in and to your feedback, comments and suggestions.

Questions & Contact Information

Questions or comments about the Service may be directed to us at the email address main+babyart@laubrothersllc.com.