Terms and Conditions
Last updated August 28th, 2019
Freshbats, Inc. ("Freshbats" or "we") provides bat leasing software, and other related baseball or sporting tools and services. These offerings are provided by Freshbats through the Internet site https://www.Freshbats.com/ (the "Site" and, together with any related software, tools and services provided in connection with the Site, the "Freshbats Service"). Please read carefully the following terms and conditions ("Terms of Service") and our Privacy Policy, which may be found on our website at https://www.Freshbats.com/privacy and which is incorporated herein by reference into these Terms of Service. These Terms of Service govern your access to and use of the Freshbats Service and all Site Content and constitute a binding legal agreement between you and Freshbats.
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE "ACCEPT TERMS" BUTTON, REGISTERING FOR A FRESHBATS ACCOUNT, ACCESSING OR USING THE FRESHBATS SERVICE, OR BY DOWNLOADING, SUBMITTING OR POSTING ANY CONTENT FROM, OR ON, OR THROUGH THE FRESHBATS SERVICE, OR BY ENTERING INTO A STATEMENT OF WORK WITH FRESHBATS, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE FRESHBATS SERVICE OR SITE CONTENT. If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Definitions
"Content" means text, graphics, photos, music, software, audio, video, information or other materials.
"Corporate Member" means a Member that is a company or other legal entity, rather than an individual.
"Freshbats Content" means Content that Freshbats makes available through the Site or Freshbats Service, including any Content licensed to Freshbats from a third party, but excluding Member Content.
"Member" means a person or entity who completes Freshbats's account registration process, as described under "Account Registration" below.
"Member Content" means Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Freshbats Service, including, without limitation, comments to the Freshbats blog.
"Site Content" means Freshbats Content and Member Content.
Modification
Freshbats reserves the right, at its sole discretion, to modify, discontinue or terminate the Freshbats Service or to modify these Terms of Service, at any time and without prior notice. If we modify these Terms of Service, we will post the modification on the Site or provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms of Service or on the Site or Application. By continuing to access or use the Freshbats Service after we have posted a modification on the Site or Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the Freshbats Service.
Certain portions of the Freshbats Service may, or may in the future, have different terms and conditions posted on the Site or may require you to agree with and accept additional terms and conditions. Freshbats may, in its sole discretion, make premium or different applications, software or services available to you that is subject to different terms and conditions and narrower licenses than as set forth therein. If there is a conflict between these Terms of Service and terms and conditions posted for a specific portion of the Freshbats Service, the latter terms and conditions shall take precedence with respect to your use of or access to that portion of the Freshbats Service.
Statement of Work
If you are a party to a Statement of Work between you and Freshbats (a "Statement of Work"), these Terms of Service shall begin on the Effective Date of the Statement of Work and, unless terminated as otherwise provided herein, shall continue through the term set forth in the Statement of Work (the "SOW Term") and will automatically renew for a successive one (1) year term following the end of each SOW Term, unless either party notifies the other, not less than ninety (90) days prior to the end of the then current SOW Term, of its intention not to renew.
Either party to a Statement of Work may, by written notice, request any changes, additions, deletions, or modifications to any Statement of Work. No changes to a Statement of Work will be effective until a written amendment has been signed by both Parties. If any such change affects the amount due or the time of performance thereunder, the Parties shall negotiate in good faith a mutually acceptable appropriate adjustment.
In the event of conflict or inconsistency between these Terms of Service and those of any Statement of Work, the Statement of Work shall control.
Eligibility
By accessing or using the Freshbats Service you represent and warrant to Freshbats that: (i) you are of legal age to form a binding contract, or, if you are a minor, you have your parent's permission to use the Freshbats Service, and your parent has read and agrees to these Terms of Service on your behalf; (ii) all registration information you submit is accurate, current and complete; (iii) you will maintain the accuracy and completeness of such information; (iv) if you are accepting these Terms of Service on behalf of a company or other legal entity, you have the authority to bind that company or legal entity to these Terms of Service. You also certify that you are legally permitted to use and access the Freshbats Service and take full responsibility for the selection and use of and access to the Freshbats Service. These Terms of Service are void where prohibited by law, and the right to access the Freshbats Service is revoked in such jurisdictions.
Privacy
See Freshbats's Privacy Policy at https://www.Freshbats.com/privacy for information and notices concerning Freshbats's collection and use of your personal information.
Account Registration
In order to access the Freshbats Service, you must register to create an account ("Account") and become a Member. When registering with Freshbats you agree to: (a) provide true, accurate, current and complete information about yourself (or, if applicable, the Corporate Member you represent) as prompted by the Freshbats Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Freshbats Service (or any portion thereof).
You may not authorize any third party (other than, if applicable, the employees, consultants or agents of the Corporate Member you represent) to access or use the Freshbats Service on your behalf. You are responsible for maintaining the confidentiality of the user ID and password, and are fully responsible for all activities that occur under your user ID or password. You agree to immediately notify Freshbats of any unauthorized use of your user ID or password or any other breach of security. Freshbats cannot and will not be liable for any loss or damage arising from any unauthorized use of your account.
Communication with Freshbats
You verify that any contact information provided to Freshbats, including, but not limited to, your e-mail address and mobile phone number is true and accurate. By providing us with your email address, you agree to receive notices electronically, to that email address. From time to time, Freshbats will use this email address to send you notifications about product updates and improvements, company news and events, and updates from our community. You further verify that you are the telephone subscriber and/or that you own any telephone numbers that you provide to Freshbats. You acknowledge that by voluntarily providing your telephone numbers to Freshbats, you expressly agree to be contacted at the telephone numbers you provide. You consent to receive e-mails, pre-recorded voice messages and/or autodialed calls (including text messages) by or on behalf of Freshbats relating to this Agreement, any transaction with Freshbats, matters related to your account, and promotions from Freshbats. These communications may be made by or on behalf of Freshbats, even if your phone number is registered on any state or federal Do Not Call list. You acknowledge that you may incur a charge for these texts or calls by your telephone carrier and that Freshbats will not be responsible for these charges.
Fees and Payment
By establishing an Freshbats account, you agree to the pricing, payment, and billing policies set forth (a) herein, (b) on the Site (including our pricing page located at (https://use.Freshbats.com/pricing) and/or (c) if applicable, in a separately executed or accepted purchase order. The use of various offerings within the Freshbats Service, including but not limited to leasing bats, blog contribution, are governed by additional terms set forth on the Site (such additional terms being incorporated herein by reference). All fees paid for the Freshbats Service are non-refundable and non-transferable except as expressly provided in these Terms of Service. All fees and applicable taxes, if any, are payable in United States dollars. You are solely responsible for the payment of, and shall pay when due, all applicable sales and use taxes and similar fees now in force, enacted or imposed in the future on the delivery of Freshbats Service and/or any related transactions (except for taxes assessed on Freshbats's net income or personal property). If for any reason Freshbats pays any such taxes, duties or excises, you will reimburse Freshbats for such taxes, duties or excises, other than taxes on Freshbats's net income.
The term of your Freshbats Service package is as set forth on the Site and in your billing account details. If your selected Freshbats Service package requires a recurring subscription fee, your Freshbats Service package will automatically renew, we terminate it, or you notify us by email (help@Freshbats.com) of your decision to terminate your current Freshbats Service package. You must cancel any automatically renewing Freshbats Service package before it renews in order to avoid billing of subscription fees for the renewal term to your credit card. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods. If your Freshbats Service package is for a term of 1 month or longer, your subscription is deemed to have begun during the month in which you were first billed by Freshbats for the Freshbats Service package. You may terminate Freshbats Service packages with terms of 1 month or longer at any time; however, because such Freshbats Service packages may qualify for reduced rate pricing, upon termination Freshbats will bill you for an amount equal to the difference between the reduced rate you actually paid, and the amount you would have paid under a standard rate Freshbats Service package.
Intellectual Property
Freshbats Service. Freshbats shall own and retain all right, title, and interest in and to the Freshbats Service (except for any licensed content and software components included therein). Member agrees not to reverse engineer, decompile, distribute, license, sell, transfer, disassemble, copy, alter, modify, or create derivative works of the Freshbats Service or otherwise use the Freshbats Service in any way that violates the use restrictions contained in these Terms of Service. Freshbats does not grant to Member any license, express or implied, to the intellectual property of Freshbats or its licensors. Member further acknowledges and agrees that any information regarding the design, "look and feel", specifications, components, functionality or operation and payment terms and pricing (if applicable) of the Freshbats Service is considered the confidential and proprietary information of Freshbats (collectively "Freshbats Confidential Information").
Member Data.
Subject to the section below labeled "Assignment of Certain Member Data", Member shall retain all right, title and interest in and to (a) all graphics, images, files, data and other information transmitted by Member to Freshbats in connection with its use of the Freshbats Service (collectively, "Member Data"), provided, however, that Member hereby grants to Freshbats a worldwide, royalty-free, non-exclusive license to use (i) data generated as a result of Member's use of the Freshbats Service solely for purposes of (x) maintaining and improving the Freshbats Service and (y) providing Member with access to special product offers and promotions and (ii) non-identifiable, anonymous, aggregated data regarding Member's use of the Freshbats Service compiled by Freshbats solely for marketing purposes or distribution to third party research firms.
Freshbats Logos and Designs.
Freshbats's graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of Freshbats in the U.S. and/or other countries. Freshbats's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without Freshbats's prior written permission.
Member Art.
Member shall retain all right, title and interest in and to all of Member's logos, promotional graphics and related marketing designs (collectively, the "Member Art"), provided, however, that Member hereby grants to Freshbats a worldwide, royalty-free, non-exclusive license to use the Member Art, as well as Member's corporate and/or trade name, for purposes of fulfilling its obligations hereunder and marketing Freshbats's products and services to third parties, subject to Member's right in each instance to approve the manner and form of such use (which approval shall be in writing and shall not be unreasonably withheld or delayed).
Derived Data.
You shall own and retain all right, title, and interest in and to any data derived from your use of the Freshbats Service or that of any individual authorized by you to utilize the Freshbats Service (your "Users"), as defined below)(collectively, the "Derived Data"); provided, however, that you hereby grant to Freshbats a worldwide, royalty-free, non-exclusive license to use data generated as a result of your use of the Freshbats Service solely for purposes of (x) maintaining and improving the Freshbats Service, (y) providing you and/or your Users with access to and information about customized features, new functionality, and partner integrations, and (z) sharing with our partners such data in anonymized, aggregated form.
Feedback
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Freshbats Service ("Feedback"). You may submit Feedback by emailing us at help@Freshbats.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of Freshbats and you hereby irrevocably assign to Freshbats and agree to irrevocably assign to Freshbats all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Freshbats's request and expense, you will execute documents and take such further acts as Freshbats may reasonably request to assist Freshbats to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Confidentiality
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Freshbats and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose. You shall promptly notify Freshbats in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Freshbats upon termination of this Agreement for any reason whatsoever. The term "Confidential Information" shall mean any and all of Freshbats’s trade secrets, confidential and proprietary information and all other information and data of Freshbats that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Freshbats's business, operations and properties, including information about Freshbats's Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
General Prohibitions
You agree not to do any of the following:
Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Freshbats Service, or any individual element within the Freshbats Service, Freshbats's name, any Freshbats trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Freshbats's express written consent;
Access, tamper with, or use non-public areas of the Freshbats Service, Freshbats's computer systems, or the technical delivery systems of Freshbats's providers;
Attempt to probe, scan, or test the vulnerability of any Freshbats system or network or breach any security or authentication measures;
Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as of privacy and publicity) of any other use of the Freshbats Service or staff member of Freshbats.
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Freshbats or any of Freshbats's providers or any other third party (including another user) to protect the Freshbats Service or Site Content;
Attempt to access or search the Freshbats Service or Site Content or download Site Content from the Freshbats Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Freshbats or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail or junk messages, spam, chain letters or other form of solicitation (including sending invitations to use the Freshbats Service to the mobile numbers of people you do not know);
Use or disclose any Freshbats Confidential Information, except as otherwise explicitly set forth herein.
Use any meta tags or other hidden text or metadata utilizing a Freshbats trademark, logo URL or product name without Freshbats's express written consent;
Use the Freshbats Service or Site Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms of Service;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Freshbats Service or Site Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Freshbats Service or Site Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Freshbats Service;
Collect or store any personally identifiable information from the Freshbats Service from other users of the Freshbats Service without their express written permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual or entity to do any of the foregoing.
Freshbats will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Freshbats may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Freshbats has no obligation to monitor your access to or use of the Freshbats Service, or to review or edit any Member Content, but has the right to do so for the purpose of operating the Freshbats Service, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through the Freshbats Service, please notify Freshbats's copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim is being infringed;
Identification of the material that is claimed to be infringing and where it is located on the Services;
Information reasonably sufficient to permit Freshbats to contact you, such as your address, telephone number, and email address;
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 law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
Freshbats's Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
Attention: Copyright Agent
Freshbats, Inc.
10881 N Hwy VV
Columbia Mo 65202
legal@Freshbats.com
For clarity, only DMCA notices should go to the Freshbats, Inc. Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Freshbats via help@Freshbats.com.
Links to Third-Party Websites
The Freshbats Service may now or in the future contain links to third-party websites, advertisers, services, or resources that are not owned or controlled by Freshbats. You acknowledge and agree that Freshbats has no control over and is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, privacy policies, practices, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Freshbats of such websites or resources or the content, products, practices, privacy policies, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources. Additionally, your dealings with or participation in promotions of any third parties, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such third parties. You agree that Freshbats shall not be responsible for any loss or damage of any sort relating to your dealings with such third parties. We encourage you to be aware of when you leave the Freshbats Service, and to read the terms and conditions and privacy policy of any third-party website or service that you visit. You expressly relieve Freshbats from any and all liability arising from your use of any third-party website or services or third party content.
Refer-a-Friend
If you choose to use our referral service to tell a friend about Freshbats, you must seek your friend's consent to our use of your friend's name and email address to contact them about the Freshbats Service. By providing us with your friend's name and email address, you warrant that your friend consents to such contact.
Termination and Account Cancellation
If you breach any of these Terms of Service, Freshbats will have the right to suspend, disable or terminate your Account or terminate these Terms of Service, at its sole discretion and without prior notice to you. Freshbats reserves the right to revoke your access to and use of the Freshbats Service or to terminate any Statement of Work at any time, with or without cause. In the event Freshbats terminates these Terms of Service for your breach, you will remain liable for any and all amounts due hereunder. You may cancel your Account at any time from https://www.Freshbats.com/settings, or by sending an email to help@Freshbats.com and by returning all Freshbat property.
If you are party to a Statement of Work, you may terminate your obligations under these Terms of Service (a "Termination for Cause") in the event Freshbats fails to perform or observe any material term or condition under these Terms of Service and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
In the event that your account is terminated by you or by Freshbats for any reason, any licenses granted herein shall terminate, but your obligations described herein under the Sections titled "Fees and Payment," "Intellectual Property," "Confidentiality," "Disclaimers," "Indemnity," and "Limitation of Liability," as set forth herein, as well as any obligations of yours set forth in the Privacy Policy available at https://www.Freshbats.com/privacy shall survive any termination or expiration of your use of the Freshbats Service or any agreement, including a Statement of Work, between you and Freshbats, and you will not be entitled to receive any refunds for any prepaid amounts in the event of any early termination.
Disclaimers
THE FRESHBATS SERVICE AND SITE CONTENT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FRESHBATS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FRESHBATS MAKES NO WARRANTY THAT THE FRESHBATS SERVICE OR SITE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FRESHBATS MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, FRESHBATS SERVICE OR SITE CONTENT PURCHASED OR OBTAINED THROUGH THE FRESHBATS SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE FRESHBATS SERVICE. FRESHBATS DOES NOT WARRANT THE RESULTS OF USE OF THE FRESHBATS SERVICE, AND CLIENT ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. CLIENT SHOULD NOTE THAT IN USING THE FRESHBATS SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER FRESHBATS CONTROL (SUCH AS A THIRD PARTY SERVERS AND THE INTERNET). FRESHBATS MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FRESHBATS OR THROUGH THE FRESHBATS SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE FRESHBATS SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE FRESHBATS SERVICE. YOU UNDERSTAND THAT FRESHBATS DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE FRESHBATS SERVICE, NOR DOES FRESHBATS MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE FRESHBATS SERVICE. FRESHBATS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE FRESHBATS SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE FRESHBATS SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE FRESHBATS SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE FRESHBATS SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
Indemnity
You agree to defend, indemnify, and hold Freshbats, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Freshbats Service, or your violation of these Terms of Service, including without limitation any breach of any representations or warranties herein, any infringement by you of Freshbats's intellectual property rights, and any claim by a third party that the Member Data or Member Art infringes such third party's intellectual property rights.
Freshbats will defend indemnify and hold you harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys' fees), resulting from any claim, suit, action or proceeding alleging that the Freshbats Service or any portion thereof infringes any patent, copyright or other intellectual property, proprietary, or other right of any third party.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE FRESHBATS SERVICE AND SITE CONTENT REMAINS WITH YOU. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER FRESHBATS OR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE FRESHBATS SERVICE OR SITE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, FRESHBATS SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR FRESHBATS SERVICE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF FRESHBATS SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SITE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE FRESHBATS SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE FRESHBATS SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FRESHBATS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL FRESHBATS AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF FRESHBATS SERVICE OR FROM THE USE OF OR INABILITY TO USE THE FRESHBATS SERVICE OR SITE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO FRESHBATS FOR USE OF THE FRESHBATS SERVICE OR CONTENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FRESHBATS AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Entire Agreement
These Terms of Service constitute the entire and exclusive understanding and agreement between Freshbats and you regarding the Freshbats Service and Site Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between Freshbats and you regarding the Freshbats Service.
Assignment
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without Freshbats's prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. Freshbats may assign or transfer these Terms of Service, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given: by Freshbats (i) via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
General
The failure of Freshbats to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Freshbats. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
Contacting Freshbats
If you have any questions about these Terms of Service, please contact Freshbats at sales@Freshbats.com or 10881 N HWY VV Columbia MO 65202. You acknowledge and agree that when contacting Freshbats, whether by email, chat, or otherwise, you will not include any personally identifiable information in your communications, and that if such information is included in your communications with Freshbats, Freshbats will have no legal obligation or liability with regard to such information.