BANANAS TERMS OF SERVICE
Last Updated: June 24, 2021
Welcome to the BANANAS, Inc. (“BANANAS”) website located at www.bananasbunch.org (the “Site”). Please read these Terms of Service (the “Terms”) and our Privacy Policy carefully because they govern your use of our Site and those of our services for non-profit child care resources and referrals in Northern Alameda County that are accessible via our Site. To make these Terms easier to read, the Site and our services are collectively called the “Services.”
AGREEMENT TO TERMS
By [clicking on the “I accept” button or by] using our Services, you agree to be bound by these Terms and by our Privacy Policy. If you don’t agree to these Terms and our Privacy Policy, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
CHANGES TO TERMS OR SERVICES
We may modify the Terms at any time, at our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION “SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND BANANAS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
WHO MAY USE THE SERVICES
Eligibility
You may use the Services only if you are 18 years of age or older, capable of forming a binding contract with BANANAS, and not barred from using the Services under applicable law.
Registration and Your Information
If you want to use certain features of the Services you have to create an account (“Account”). You can do this via the Site. It’s important that you provide us with accurate, complete, and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete, and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you know about them.
VIRTUAL BOUTIQUE
Through the Virtual Boutique Listings section of the Site, you can post or search for community donations. You don’t need an Account to browse donation listings. You do need an Account to post a donation.
By posting a donation listing or responding to a donation listing, you agree that:
• You are eighteen (18) years of age or older;
• BANANAS is not an agent for, connected or affiliated with, or referring or endorsing any individual who is “Looking for Donated Items” (Seekers) or “Looking to Donate” (Posters)
• BANANAS does not screen, conduct background checks on, or verify the accuracy, completeness, or reliability of statements made by Posters or Seekers;
• All information included in a donation listing by a Poster is voluntarily made publicly available to all users of the Site, both Account holders and browsers, and should not be posted if such information is sensitive or confidential;
• BANANAS makes no guarantees and does not warrant the quality, timeliness, or legality of services actually delivered by Seekers or the integrity, reliability, suitability, or conduct of any Poster or Seeker;
• BANANAS is not a party to any agreement between a Poster and Seeker and will have no liability for any disputes related to any such agreement or for any online or offline communications or interactions between a Poster and Seeker; and
• You will not sue, and you release and hold BANANAS harmless from, all liability, claims, and demands that may arise (a) in connection with or relating to the use of information provided on the Site, or (b) from any disputes between you and any Poster, Seeker, or other user of the Site, including but not limited to, any bodily injury, death, emotional distress, or property damage arising out of online or offline communications or interactions between a Poster and Seeker.
Although we are not obligated to do so, we reserve the right to monitor or review donation listings, and to remove or disable access to any donation listing, at any time and without notice, at our sole discretion.
FEEDBACK
We welcome feedback, comments, and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at info@bananasbunch.org. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicenseable, and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon, and otherwise exploit the Feedback for any purpose.
PRIVACY POLICY
Please refer to our Privacy Policy for information on how we collect, use, and disclose information from our users.
CONTENT AND CONTENT RIGHTS
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided, or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Services. Content includes without limitation User Content.
CONTENT OWNERSHIP, RESPONSIBILITY, AND REMOVAL
Content Ownership
BANANAS does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, BANANAS and its licensors exclusively own all right, title, and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
By making any User Content available through Services you hereby grant to BANANAS a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform, and distribute your User Content in connection with operating and providing the Services and Content to you and to other Account holders and users.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by BANANAS on or through the Services will infringe, misappropriate, or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Rights in Content Granted by BANANAS
Subject to your compliance with these Terms, BANANAS grants you a limited, non-exclusive, non-transferable, non-sublicensable license to view, copy, display, and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
GENERAL PROHIBITIONS AND BANANAS’ ENFORCEMENT RIGHTS
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 Services or any individual element within the Services, BANANAS’ name, any BANANAS trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without BANANAS’ express written consent;
• Access, tamper with, or use non-public areas of the Services, BANANAS’ computer systems, or the technical delivery systems of BANANAS’ providers;
• Attempt to probe, scan, or test the vulnerability of any BANANAS system or network or breach any security or authentication measures;
• Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by BANANAS or any of BANANAS’ providers or any other third party (including another user) to protect the Services or Content;
• Attempt to access or search the Services or Content or download Content from the Services 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 BANANAS or other generally available third-party web browsers;
• Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation;
• Use any meta tags or other hidden text or metadata utilizing a BANANAS trademark, logo URL, or product name without BANANAS’ express written consent;
• Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;• 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 Services or 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 Services or 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 Services;
• Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
• Impersonate or misrepresent your affiliation with any person or entity;
• Violate any applicable law or regulation; or
• Encourage or enable any other individual to do any of the foregoing.
BANANAS’ Enforcement Rights
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
LINKS TO THIRD PARTY WEBSITES OR RESOURCES
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products, or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
TERMINATION
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at info@bananasbunch.org. Upon any termination, discontinuation or cancellation of Services or your Account, the following provisions will survive: Donation Listings, Feedback, Content Ownership, Rights in User Content Granted by You, Warranty Disclaimers, Indemnity, Limitation of Liability, Dispute Resolution, General Terms, and this sentence of Termination.
WARRANTY DISCLAIMERS
THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of any Content or any statements made by Posters and Seekers.
BANANAS IS NEITHER AN AGENT OF NOR CONNECTED OR AFFILIATED WITH ANY POSTER OR SEEKER. BANANAS MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND REGARDING THE INTEGRITY, RELIABILITY, SUITABILITY, OR CONDUCT OF ANY POSTER OR SEEKER OR THE QUALITY, TIMELINESS, OR LEGALITY OF SERVICES ACTUALLY PROVIDED BY SEEKERS.
YOU ASSUME ALL RISKS RELATING TO YOUR ONLINE OR OFFLINE COMMUNICATIONS AND INTERACTIONS WITH OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT BANANAS DOES NOT SCREEN OR CONDUCT BACKGROUND CHECKS FOR ANY USERS OF THE SERVICES, NOR DOES BANANAS MAKE ANY ATTEMPT TO VERIFY THE ACCURACY, COMPLETENESS, OR RELIABILITY OF STATEMENTS MADE BY USERS OF THE SERVICES. BANANAS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
INDEMNITY
You will indemnify and hold harmless BANANAS and its officers, directors, employees, and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these Terms.
LIMITATION OF LIABILITY
NEITHER BANANAS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BANANAS 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. 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. IN NO EVENT WILL BANANAS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BANANAS AND YOU.
No Liability for Conduct of Posters and Seekers
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BANANAS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INCIDENTAL, ARISING OUT OF OR RELATED TO THE CONDUCT OR ACTIONS OF DONATION POSTERS, DONATION SEEKERS, AND OTHER USERS OF THE SITE IN CONNECTION WITH THE USE OF THE SITE OR SERVICES, WHETHER ONLINE OR OFFLINE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, AND/OR PROPERTY DAMAGE.
DISPUTE RESOLUTION
Governing Law
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and BANANAS agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide BANANAS with written notice of your desire to do so by email or regular mail at info@bananasbunch.org or BANANAS, Inc., 5232 Claremont Ave., Oakland, CA 94618 within thirty (30) days following the date you first accept these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide BANANAS with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide BANANAS with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide BANANAS with an Arbitration Opt-out Notice, you acknowledge and agree that you and BANANAS are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and BANANAS otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and BANANAS otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and BANANAS submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. BANANAS will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees
Your responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, BANANAS will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes
Notwithstanding the provisions of the “Modification” section above, if BANANAS changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to info@bananasbunch.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of BANANAS’ email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and BANANAS in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
GENERAL TERMS
These Terms constitute the entire and exclusive understanding and agreement between BANANAS and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between BANANAS and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, if you opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without BANANAS’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. BANANAS may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by BANANAS under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
BANANAS’ failure to enforce any right or provision of these Terms will not be considered a waiver of such 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 BANANAS. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
CONTACT INFORMATION
If you have any questions about these Terms or the Services, please contact BANANAS at info@bananasbunch.org, 510.658.7353, or BANANAS, Inc., 5232 Claremont Ave., Oakland, CA 94618.