Last Modified: February 23, 2022
Effective Date: February 23, 2022
1. Our Purpose and Approach.
1.1. We are truly excited for you to join the FooMoo community. FooMoo was created for the sharing of parenting knowledge and resources. We are genuinely interested in helping communities of parents, children and educators. While it is necessary to build an economically viable organization to support ourselves sustainably, our main mission is to ease parents' lives and enrich children's learning in our communities. This legal contract may be exhausting to read, please understand it is a necessary tool to protect our mutual interests and prevent misuse of the FooMoo Platform.
1.2. We strive to build an environment of trust. We are committed NOT to sell your information to any third parties for commercial gain. We will not bombard you with ads when we share useful information. We try to discourage "social influencing" for commercial or political purposes, and we try to be transparent about how your information is accessible by other users. We are always striving to improve the FooMoo Platform, but we know it isn't perfect yet and we ask for your understanding and input to make us better every day. Please contact us for suggestions at help@foo-moo.com at any time.
2. Overview.
2.1. Introduction. This FooMoo Terms of Service Agreement (this "Agreement") is an agreement between you (referred to in this Agreement as "you" or "your") and FM Education LLC, a Delaware limited liability company (referred to in this Agreement as "FooMoo", "we", "us", or "our"), the owner and operator of the FooMoo website located at https://www.foo-moo.com/ (the "FooMoo Website") and the FooMoo software and mobile applications (the "FooMoo Apps"). The FooMoo Website and the FooMoo Apps are collectively referred to as the "FooMoo Platform", and the FooMoo Platform and all related systems and services provided by FooMoo are referred to collectively as the "FooMoo Services." The FooMoo Services do not include transportation services, taxi services, ride services, or products or services offered or provided (i) by any third parties that may advertise through the FooMoo Platform or (ii) by other FooMoo Users. You agree to read this Agreement carefully.
2.2. Binding Contract. You acknowledge that this Agreement is a legally binding contract between you and FooMoo and that it governs your access to and use of the FooMoo Services and applies to all ParentShare Services (as defined below) that you schedule through the FooMoo Platform. In this Agreement, you and FooMoo are sometimes referred to individually as a "party" and collectively as the "parties", and "User" (and "user", collectively "Users" or "users") refers to a person who accesses or uses the FooMoo Services. We may immediately terminate this Agreement or deny access to the FooMoo Services at any time for any reason or no reason.
2.3. Important Provisions. This Agreement includes important provisions affecting your legal rights and obligations, including, but not limited to: (i) a disclaimer of warranties and limitation of liability by FooMoo (see Section 20 below), (ii) dispute resolution provisions that include a waiver of the right to a jury, a waiver of the right to participate in a class action or similar proceeding, a limitation of the period of time for bringing a claim against us, and an agreement that any court proceedings will take place only in the City of Alexandria, Virginia (see Section 22 below), and (iii) an obligation for you to pay any expenses and liabilities (such as damages, costs, or legal claims) that the FooMoo Parties suffer as a result of your violation of any of the provisions of this Agreement, your use of the FooMoo Services or the ParentShare Services, or other actions by you or anyone in your Ride Group (see Section 19 below). The previous examples are not comprehensive, and you are responsible for reading and agreeing to all of the provisions of this Agreement as a condition of your access to and use of the FooMoo Services.
3. Additional Policies. Our Privacy Policy, located at https://www.foo-moo.com/about/privacypolicy (our "Privacy Policy"), explains how we collect and use your information. Our Acceptable Use Policy, located at https://www.foo-moo.com/about/acceptableuse (our "Acceptable Use Policy"), explains some of your responsibilities when using the FooMoo Services. You understand and agree that the provisions of our Privacy Policy and our Acceptable Use Policy (collectively, the "Policies") are part of this Agreement and are binding upon you and us.
4. Children.
4.1. Children Under 18. If you are under the age of eighteen (18) years old, you are too young to use FooMoo and you are not permitted to create or use a FooMoo User Account or use the FooMoo Platform until you turn eighteen years old.
5. Modification. As technology changes and as our business grows and develops, we may modify this Agreement and the Policies from time to time. When we modify this Agreement or the Policies, we will give you notice by posting the amended Agreement or Policies on the FooMoo Website or in the FooMoo Apps, and, if the changes meaningfully affect your rights or obligations, we may give you notice by e-mail. The amended Agreement and Policies will include an effective date, and they will be effective on that date. However, any changes to the governing law or dispute resolution provisions set forth in Sections 21 and 22 will not apply to any disputes for which we and you have received actual notice on before such effective date. If you continue to access or use the FooMoo Services after this Agreement or the Policies are amended, you agree to be bound by the revised Agreement and Policies. If you do not agree with the updated Agreement and Policies, you agree that you will promptly (1) discontinue your use of the FooMoo Services, and (2) contact us to request that your User Account be closed.
6. Definitions. In addition to terms defined in other parts of this Agreement, as used in this Agreement:
6.1. "Affiliate" (collectively, "Affiliates") means, with respect to a person, any other person directly or indirectly controlling, controlled by or under common control with the subject person.
6.2. "Person" (or "person") means any individual, corporation, company, partnership, association, trust, unincorporated organization, court or government or political subdivision or agency thereof, any other business entity or legal entity, and any legal person.
6.3. "FooMoo Parties" (each, a "FooMoo Party") means FooMoo, its Affiliates, and the officers, directors, shareholders, members, managers, employees, attorneys, and agents of FooMoo or its Affiliates.
7. Description of FooMoo Services. The FooMoo Services allow users of the FooMoo Platform to communicate and interact with other FooMoo Users. The FooMoo Platform also allows Users to offer, provide, and accept ride sharing, delivery, childcare, and other services (collectively, "ParentShare Services") to and from other FooMoo Users. Such ParentShare Services are provided directly by FooMoo Users and FooMoo does not offer, provide, or supervise ParentShare Services. ParentShare Services are not part of the FooMoo Services.
8. Your FooMoo User Account. In order to use most aspects of the FooMoo Services, you must register for and maintain an active personal account (a "User Account"). You will not register or use (or attempt to register or use) more than one User Account. The User Account registration process requires you to submit to us certain personal information, such as your real name, address, e-mail address, mobile phone number, your children' names and their school or organization affiliations. As used in this Agreement, "Account Information" means all information associated with a user's User Account, including any information that the user provides to us in connection with the user's User Account. You agree to update your Account Information, as necessary, to ensure that it remains current, accurate, and complete. You will not submit any Account Information that is false, inaccurate, or incomplete, and you will not associate any disposable e-mail addresses or phone numbers with your User Account. You authorize us to verify your Account Information at any time. If any of your Account Information is untrue, inaccurate, incomplete, or not current, such as an invalid or expired payment method saved in your User Account, we retain the right, in our sole discretion, to suspend or terminate your User Account and your access to the FooMoo Services. You will not access or use, or attempt to access or use, any other person's User Account. Unless otherwise expressly permitted by us in writing, you will only register for one User Account.
9. Real Identity and ID Verification.
9.1. Real Identity. The FooMoo Platform is currently only permitted to be used by invited individuals using their real identity and credentials, not an alias. By becoming a FooMoo User, you represent and warrant that you are 18 years of age or older and that you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. If you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
9.2. ID Verification. The FooMoo Platform is intended for Users, WITHOUT a history of committing sex crimes, to participate while using their real identity, in order to protect safety of Users and their children. In order to gain access to certain aspects of the FooMoo Platform, including ParentShare Services, you must provide FooMoo with a government issued form of identification ("Your ID") and other necessary information to undergo the identity verification and sex crime clearance process. FooMoo uses third-party vendor(s) to conduct such verifications and background checks, and you expressly consent to FooMoo sharing Your ID and other Account Information with such third-party vendors. FooMoo does NOT retain a copy of Your ID after the completion of that process. You also acknowledge that, based on results of the verification and background checks, FooMoo may deny you access to ParentShare Services (or other aspects of FooMoo) in its sole discretion.
10. Our Commitments Regarding Your Personal Information. Your Personal Information is any information you provide to us through the FooMoo Platform about yourself or your family, including your name, address, school affiliation, and contact information (your "Personal Information"). Our collection and use of your Personal Information in connection with the FooMoo Services is solely for the purpose of FooMoo's operations. FooMoo will NOT sell or market your Personal Information to any third party.
11. User Content.
11.1. Generally. As used in this Agreement, "User Content" means all Account Information, and all content (including without limitation, text, photos, graphics, audio, video, and other materials) that a user uploads, posts, sends, submits, transmits, or otherwise transfers to or through the FooMoo Services. You acknowledge and agree that we do not prescreen User Content and that we are not responsible for the content of any User Content, and we make no guarantees as to the validity, accuracy, or legal status of any User Content. Nevertheless, we may at any time, with or without notice to you, block, interrupt, delete, or otherwise remove, disable or restrict access to, or refuse to display or transmit any User Content. You represent and warrant that FooMoo and each FooMoo User that your User Content will be accurate, current, complete, and reliable.
11.2. Your Content. You represent and warrant to the FooMoo Parties that your User Content complies (and will at all times continue to comply) with the terms of this Agreement and the Policies. You acknowledge and agree that your User Content will be treated as non-confidential and non-proprietary, except as otherwise specifically provided in our Privacy Policy. You retain any ownership rights you have in your User Content, and nothing in this Agreement limits your right to use your User Content outside of the FooMoo Services or your right to license or sell your User Content to others. You grant us a worldwide, royalty-free, non-exclusive, transferable, sublicensable, perpetual, and irrevocable license (the "Content License") to record, use, practice, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, publicly display, distribute, communicate, and transmit your User Content in any and all media or distribution methods (now known or later developed), to exercise all Intellectual Property Rights (as defined below) in and to your User Content, and to exercise Publicity Rights (as defined below) with respect to each identifiable person in your User Content. Subject to our Privacy Policy, the Content License permits us, for example, to use your User Content to provide and improve the FooMoo Services for you and other Users, to protect the safety, rights, property, or security of FooMoo or others, to resolve disputes, to market and promote FooMoo and the FooMoo Services, and for other business purposes.
11.3. Third Party Access. You understand and agree that some or all of your User Content may be accessed or viewed by third parties, including other users. You hereby grant to each user permission to access and view any of your User Content that is available through the FooMoo Services to such user (until the User Content is removed from the FooMoo Services or the user no longer has access to the User Content through the FooMoo Services). Some portions of the FooMoo Services may include options or controls to limit the sharing or visibility of your User Content, and we will respect the choices you make using those options or controls. We will only share your User Content with third parties as permitted by this Agreement and our Privacy Policy.
11.4. Third Party Rights. You represent and warrant to the FooMoo Parties: (1) that you have the right (and have obtained any and all necessary permissions, consents, and authorizations) to grant us the Content License and to grant all other rights and licenses granted in this Agreement, and (2) that the use of your User Content and the exercise of the Content License by the FooMoo Parties (and their sublicensees) will not violate or infringe the Intellectual Property Rights (as defined below) or other rights of any person. In addition, you represent and warrant to the FooMoo Parties: (a) that none of your User Content will contain third party copyrighted material or material that is subject to other third party Intellectual Property Rights unless you have written permission from the rightful owner of the materials (or you are otherwise legally entitled) to upload, post, send, submit, transmit, or otherwise transfer such materials as part of your User Content, to grant us the Content License, and to grant all other rights and licenses granted in this Agreement; (b) that none of the User Content is false, slanderous, libelous, or in any way defamatory; and (c) that you have the written consent, release, and/or permission of each and every identifiable person in your User Content to use (and to grant us, as part of the Content License, the right to use) the person's name, image, photo, portrait, voice, sound-alike, likeness, and persona in connection with your User Content.
11.5. Network Access and Devices. It is your responsibility to obtain and maintain the mobile phone, e-mail, and internet access necessary to use the FooMoo Services and to obtain and update compatible devices necessary to access and use the FooMoo Services. We do not guarantee that the FooMoo Services will function on any particular hardware or devices. Your internet service provider or mobile network's data, phone call, and messaging rates and fees may apply when you access or use the FooMoo Services. The FooMoo Services may be subject to malfunctions and delays inherent in the use of the internet and electronic communications.
12. Using the FooMoo Services.
12.1. Permission to Use the FooMoo Services. Subject to your compliance with this Agreement and the Policies, we grant you permission to access and use the FooMoo Services for your personal, non-commercial purposes. If you violate this Agreement or the Policies, your permission to use the FooMoo Services will automatically terminate. Your permission to access and use the FooMoo Services will also terminate automatically if your User Account is suspended, closed, or deleted. Your permission to access and use the FooMoo Services is personal, non-exclusive, non-assignable, non-sublicensable, and may be limited or revoked by us at any time. We reserve the right, in our sole discretion, to refuse service and/or to suspend or terminate your User Account.
12.2. Your Responsibilities. You are responsible for maintaining the confidentiality of the login credentials (such as password and e-mail address, phone number, or username) used to access your User Account (your "Login Credentials"). You acknowledge and agree that you are responsible for any activities that occur through your User Account, whether or not authorized by you. You agree to immediately notify us of any security breach associated with your Login Credentials or your User Account and of any unauthorized use of your User Account. We will not be liable for your losses caused by any unauthorized use of your User Account, and you acknowledge and agree that you may be liable for the losses of the FooMoo Parties or others due to such unauthorized use. You will not authorize third parties to use your User Account. You will not assign or otherwise transfer your User Account to any other person. You will only use the FooMoo Services in compliance with all applicable laws. You will only use the FooMoo Services for personal, non-commercial purposes. You must not use FooMoo Services in any manner that causes nuisance, annoyance, inconvenience, or property damage to another FooMoo User or any other person.
12.3. Restrictions. You agree that you will not engage in any of the following activities or permit or allow any other person to do so: (i) remove any copyright, trademark, or other proprietary notices from any portion of the FooMoo Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the FooMoo Services except as expressly permitted by us; (iii) decompile, reverse engineer, or disassemble the FooMoo Services; (iv) mirror or frame any portion of the FooMoo Services; (v) create or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the FooMoo Services or unduly burdening or hindering the operation and/or functionality of any aspect of the FooMoo Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the FooMoo Services or its related systems or networks.
12.4. Third Party Services and Content. The FooMoo Services may be made available or accessed in connection with third party services and content that we do not control. Different terms of use and privacy policies may apply to your use of such third party services and content. We do not endorse such third party services and content and in no event will we be responsible or liable for any products or services of such third party providers. We do not endorse and are not responsible for any content or information provided by another user, including without limitation through the FooMoo Services.
12.5. Your Independence Regarding ParentShare Services. FooMoo does not, and will not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of ParentShare Services, your acts or omissions, or your operation and maintenance of your premises, vehicle, or other equipment. You retain the sole right to determine when, where, and for how long you will use the FooMoo Services. You retain the option to accept, to decline, or to ignore a User's request for ParentShare Services via the FooMoo Platform, or to cancel an accepted request for ParentShare Services via the FooMoo Platform, subject to FooMoo's then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, FooMoo will have no right to require you to: (a) display FooMoo's names, logos or colors; or (b) wear a uniform or any other clothing displaying FooMoo's names, logos or colors. You acknowledge and agree that you have complete discretion to provide ParentShare Services and/or other services or to otherwise engage in other business or employment activities.
12.6. Insurance. You understand and agree that FooMoo does not offer or provide any form of insurance and that FooMoo does not, and will not, provide you or any third parties with any insurance coverage for liability, damages, or losses of any kind (whether incurred by you or others) arising out of the use of ParentShare Services, any acts or omissions of any third parties, or the use of the FooMoo Services. You further acknowledge and agree that you are solely responsible for obtaining and maintaining appropriate insurance coverage to protect yourself, your family, and the participants in any ParentShare Services you provide or participate in for damages, harm (including personal injury and death), or losses arising out of the participation in or use of ParentShare Services or the acts or omissions of any third parties.
13. Charges and Points System.
13.1. Overview. FooMoo uses a points system to account for all ParentShare Services exchanged. You may buy FooMoo points ("Points") and redeem Points (except for promotional, incentive, or award Points) for cash. Each Point is equivalent to $1.00 (U.S. Dollars) in value, before accounting for any Processing Fees. All Points used on the FooMoo platform are non-refundable. This no-refund policy applies at all times regardless of your decision to terminate usage of the FooMoo Platform. Your Points balance (excluding incentive or award Points), in excess of contracted ParentShare Services and excluding promotional, incentive, or award Points awarded, may be redeemed for cash. All Charges and fees shall be deemed to be in U.S. Dollars, except as specifically stated otherwise in writing by FooMoo. As used herein, "ParentShare Service Fee" refers to the total number of Points to be paid in a transaction by the User of ParentShare Services to the User providing those ParentShare Services.
13.2. Charges. You understand that requesting or using ParentShare Services or failing to fulfill your agreed to ParentShare Services through the FooMoo Platform may result in charges to you ("Charges") dependent on your Points balance at time of service. FooMoo has the authority and reserves the right to determine and modify pricing for purchase of points and in points exchanged. You are responsible for reviewing and understanding the points consumed, including penalties, when you agree to a transaction through the FooMoo Platform. You are responsible for any Charges incurred under your User Account when insufficient points are available for ParentShare Services.
13.3. Carpool Cost Share. Carpool Points exchanges are strictly based on sharing the ESTIMATED COSTS for the driver. A driver's cost is estimated based on federal mileage reimbursement rate (which varies from year to year and is $0.56/mile for 2021) and the theoretical full trip distance (i.e., from the driver's home address, to the User(s) and to the destination and back to the driver's home). Because we do not track the driver's actual GPS positions and, therefore, the actual route, we use estimate mileage between these points using inputs from a mapping service provider. You acknowledge that this calculation is an estimate. If one family shares the ride with the driver's family, the rider's cost share is 50% of estimated cost in points (described above); if two families share the ride with the driver's family, each rider family will share 1/3 of the estimated cost in points, before FooMoo Transaction Charges. There is a cap for intra city carpool cost share for each User family. The cap rate may change from time to time or location to location. For 2021, the carpool cost share cap is $6.70, including the Transaction Charge but excluding any payment processing fees charged by FooMoo's payment processor.
13.4. Childcare and Activity Charges. ParentShare points exchanged for various childcare services and organized activities will vary based on the type of activity, location or skill level required, etc. By principal these charges will be much lower than those of a commercial provider because FooMoo is a resource sharing platform. Users offering ParentShare Services are inviting others to participate in an activity and/or care that he or she is already providing to his or her own child(ren). FooMoo may adjust these rates at any time and you will find the latest rates when requesting or offering ParentShare Services.
13.5. Payment Processing and Fees. All Charges for points purchase are facilitated through a third-party payment processing service (e.g., Stripe, Inc., or Braintree, a division of PayPal, Inc.). FooMoo may replace its third-party payment processing services without notice to you. Charges will only be made through the FooMoo Platform. Upon addition of a new payment method or each request for ParentShare Services, FooMoo may seek authorization of your selected payment method to verify the payment method, ensuring the service points cost will be covered, and protect against unauthorized behavior. The authorization is not a charge. However, it may reduce your available credit by the authorization amount until your bank's next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. You agree that are not, and will not be held, responsible for these charges, and you understand that we are unable to assist you in recovering them from your issuing bank. At FooMoo, we strive to provide you full transparency into the Charges you pay. Instead of charging you a higher Transaction Fee or points price to cover the various expenses including the Payment Processing Fees, you pay the processing fee directly with each transaction. By structuring it this way, we ensure you have full control and may reduce these fees by choosing different payment methods.
13.6. FooMoo ParentShare Transaction Fees. FooMoo charges a transaction fee equal to 10% of the ParentShare Service Fee for each ParentShare Services transaction (the "Transaction Fee").
13.7. Cancellation or No-Show Penalty Charge. When you agree to provide or use ParentShare Services, there is another family dependent on you, so we have instituted a penalty charge to discourage any late cancellations or no-shows, whether you are providing or receiving ParentShare Services, generally as follows, which may change from time to time:
Cancellation within 24 hours from the start time of the service:
$5.00 / instance for childcare and carpool (each leg of a round trip carpool counts separately) ParentShare Services; and
25% of the ParentShare Service Fee for uShare ParentShare Services.
No Show:
$10.00 / instance for childcare and carpool (each leg of a round trip carpool counts separately) ParentShare Services;
50% of the ParentShare Service Fee for uShare ParentShare Services.
13.8. No Cash Payment. With the exception of tips, cash payments are strictly prohibited, and all payments for ParentShare Services must be processed through the FooMoo Platform. Your purchase of points from FooMoo or use of previously earned points satisfies your payment obligation for any ParentShare Services arranged through the FooMoo Platform.
13.9. Free Incentive Points and Award Points. From time to time, FooMoo may offer you inventive, promotional, or award Points, which you may use for any ParentShare Services, but which you may not redeem for cash.
14. Representations, Warranties, and Obligations of Providers of ParentShare Services.
14.1. Generally. By providing ParentShare Services through the FooMoo Platform, you represent, warrant, and agree that:
14.1.1. You have the physical and mental capacity and necessary experience to care for children or offer related ParentShare Services to the applicable FooMoo User and his or her family, and you agree to accord such children in your care with the highest level of care and attention. You agree NOT to be under the influence of alcohol or drugs, or to take any action that harms or threatens to harm the safety of FooMoo Users, their families, or any third parties, while providing ParentShare Services.
14.1.2. You have the legal right to use any physical premises and spaces involved in providing such ParentShare Services.
14.1.3. You have relevant and appropriate liability insurance to conduct such ParentShare Services.
14.1.4. You agree that you understand and meet any and all applicable federal, state, and local laws, regulations, and licensing requirements to offer such ParentShare Services.
14.1.5. You will pay all applicable federal, state, and local taxes based on your provision of ParentShare Services and any payments received by you.
14.1.6. We may obtain information about you, including your criminal and driving records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of this Agreement.
14.1.7. You will not attempt to defraud FooMoo or any FooMoo Users. If we suspect that you have engaged in fraudulent activity, we may withhold applicable payments for the ParentShare Services in question.
14.2. Drivers. By providing ParentShare Services as a driver through the FooMoo Platform, you represent, warrant, and agree that:
14.2.1. You possess a valid driver's license and are authorized and medically fit to operate a motor vehicle and have all appropriate licenses, approvals, and authority to provide transportation to riders in all jurisdictions in which you provide ParentShare Services.
14.2.2. You own, or have the legal right to operate, the vehicle you use when providing ParentShare Services, and such vehicle is in good operating condition and meets the industry safety standards and all applicable statutory and state department of motor vehicle requirements for a vehicle of its kind.
14.2.3. You will not engage in reckless behavior while driving, drive unsafely, operate a vehicle that is unsafe to drive, permit an unauthorized third party to accompany you in the vehicle while providing ParentShare Services, provide ParentShare Services as a driver while under the influence of alcohol or drugs, or take action that harms or threatens to harm the safety of FooMoo Users or third parties.
14.2.4. You will not transport more passengers than can be safely and securely seated in your vehicle.
14.2.5. You will not, while providing ParentShare Services, operate as a public or common carrier or taxi service, accept street hails, charge for rides (except as expressly provided in this Agreement), demand that a rider pay in cash, or use a credit card reader to accept payment, or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.
14.2.6. You have a valid policy of liability insurance (in coverage amounts consistent with all applicable legal requirements) that names or schedules you for the operation of the vehicle you use to provide ParentShare Services.
15. Your Safety and Obligations.
15.1. We strive to create a community of Users with real identity, but we cannot guarantee that each User is who he or she claims to be. You agree that you will use common sense when using the FooMoo Platform, including looking at the photos of a User you have matched with to make sure it is the same individual you see in person at the point of the ParentShare Services. You acknowledge that it is your responsibility to verify the background check status of any user you are transacting with. You understand that there are also risks of dealing with underage persons or people acting under false pretenses, and we do not accept responsibility or liability for any content, communication, or other use or access of the FooMoo Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential User offering ParentShare Services prior to engaging in an arranged service.
15.2. FooMoo is not responsible for the conduct, whether online or offline, of any FooMoo User. You are solely responsible for your interactions with other FooMoo Users and other third parties. We do not procure or maintain insurance for any losses you may experience when using ParentShare Services, including but not limited to lost or stolen property, damages to your vehicle, residence, or other property, or personal injury or death. By using the FooMoo Platform and participating in ParentShare Services, you agree to accept such risks and agree that the FooMoo Parties are not responsible for the acts or omissions of FooMoo Users on the FooMoo Platform or participating in ParentShare Services.
15.3. You hereby represent and warrant to us and to each FooMoo User that you will respect the privacy (including without limitation private, family and home life), property and data protection rights of FooMoo Users and their family members and that you will not record (whether video or audio or otherwise) any ParentShare Services or any interaction by or with FooMoo or any FooMoo Users (or their family members) in connection with the FooMoo Platform or any ParentShare Services without the prior written consent of Company and/or the relevant FooMoo User, as applicable. You further represent and warrant that you will perform any ParentShare Services agreed upon between you and other FooMoo Users, communicating clearly and promptly through the FooMoo Platform, responding to requests from FooMoo Users promptly, being present and/or available at the time you agree upon with other FooMoo Users as the case may be, and only utilizing the points system specified or approved by us to make or receive payment for ParentShare Services arranged or provided through the FooMoo Platform. You also represent and warrant that you will act professionally and responsibly in your interactions with other FooMoo Users. You warrant that you will not purchase or deliver controlled substances on or through the FooMoo Platform. You further represent and warrant that when using or accessing the FooMoo Platform, you will act in accordance with any applicable laws and in good faith.
15.4. You hereby warrant and represent that, other than as fully and promptly disclosed to FooMoo as set forth below, you do not have any motivation, status, or interest FooMoo Company may reasonably wish to know about in connection with the FooMoo Platform, including without limitation, if you are using or will or intend to use the FooMoo Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to FooMoo in writing any such motivation, status, or interest, whether existing prior to creating a FooMoo User Account or as arises during your use of the FooMoo Platform.
15.5. You additionally represent and warrant to us and to each FooMoo User that when you agree to provide ParentShare Services, you will provide timely, high-quality ParentShare Services to other users and you will only offer and provide ParentShare Services for which you have the necessary skills and expertise, and you will provide the ParentShare Services safely and in accordance with all applicable laws, and you represent and warrant to us and to each FooMoo User that you have the legal right to work in the country in which you are performing ParentShare Services.
16. Confidentiality. You agree not to use any technical, financial, strategic, or other proprietary or confidential information relating to FooMoo's business, operations, or properties, or information about a User made available to you in connection with such User's use of the FooMoo Platform, which may include the User's name (and the names of the User's children or family members), pick-up location, contact information, and photo (collectively, "Confidential Information") for your own use or for any purpose other than as contemplated herein. You agree not to disclose or permit disclosure of any Confidential Information to any third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain. Notwithstanding the above, you will not have liability to FooMoo with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by FooMoo or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed by you with the prior written approval of FooMoo; becomes known to you, without restriction, from a source other than FooMoo or a FooMoo User without breach of this Agreement by you and otherwise not in violation of FooMoo's rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that you must provide prompt notice of such court order or requirement to FooMoo to enable FooMoo to seek a protective order or otherwise prevent or restrict such disclosure.
17. Intellectual Property Rights.
17.1. Generally. You acknowledge and agree that, except for User Content and except as otherwise expressly stated in this Agreement, FooMoo (or its licensors) own all Intellectual Property Rights in and to all content and materials displayed, transmitted, performed, included, or provided by us on or through the FooMoo Services, including without limitation all text, titles, photos, graphics, logos, designs, audio and video transmissions and recordings, and other content (collectively, "FooMoo Materials"). Except as otherwise expressly provided in this Agreement, we retain all rights in and to the FooMoo Services and the FooMoo Materials. As used in this Agreement, "Intellectual Property Rights" means intellectual property rights arising from or in respect of the following, whether protected, created, or arising under the laws of the United States or any other jurisdiction: (i) fictional business names, trade names, company and corporate names, trademarks and service marks (whether registered or unregistered), logos, Internet domain names, and trade dress rights, together with the goodwill associated with any of the foregoing (collectively, "Marks"); (ii) inventions, patent applications, and patents issued therefrom in the United States and in all other countries, including all continuations, divisionals, continuations-in-part, inventions registrations, re-examinations, registrations, renewals, utility models, reissues and the like corresponding thereto (collectively, "Patents"); (iii) copyrights and registrations and applications therefor (collectively, "Copyrights"); (iv) proprietary and confidential information which constitute trade secrets, such as proprietary and confidential know-how, inventions, discoveries, concepts, ideas, methods, processes, designs, formulae, technical data, drawings, specifications, and data bases in each case excluding any of the foregoing to the extent the rights therein comprise or are protected by Copyrights or Patents (collectively, "Trade Secrets"); (v) publicity rights, including without limitation the right to use a Person's name, image, photo, portrait, voice, sound-alike, likeness, and persona for advertising, marketing, promotional, trade, business, and commercial purposes (collectively, "Publicity Rights"); and (vi) moral rights and privacy rights (collectively, "Other IP Rights").
17.2. Our Trademarks. The names "FooMoo" and "FM Education" and the graphics, icons, logos, service names, designs, and layouts associated with the FooMoo Services are the Marks of FooMoo in the United States and/or other countries. You acknowledge and agree that you will not use any of our Marks (including as part of other Marks and/or Internet domain names) in connection with any product or service in any manner that is likely to cause confusion or dilution of our Marks. All other Marks are the property of the respective owners.
17.3. Feedback. We encourage you to send us messages, feedback, or data, including, for example, ideas, comments, suggestions, or questions about the FooMoo Services or any other product or service (collectively, "Feedback"). You agree not to send us any information or ideas that are sensitive or confidential, and you agree that any Feedback we receive from you will not be considered confidential. You grant us a worldwide, royalty-free, exclusive, transferable, sublicensable, perpetual, and irrevocable license to record, use, practice, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, publicly display, distribute, communicate, and transmit your Feedback in any and all media or distribution methods (now known or later developed), and to exercise all Intellectual Property Rights in and to your Feedback. We will be entitled to use the Feedback for any commercial or other purpose whatsoever (including, for example, developing, improving, producing, providing, or marketing products and services) without compensation to you or any other person sending the Feedback, and we will not be under any obligation to tell you if and how we use the Feedback.
17.4. The provisions of this Section 17 will continue to apply even if you stop using the FooMoo Services and will survive the closing, deletion, expiration, or termination of your User Account or this Agreement.
18. Claims of Intellectual Property Infringement.
18.1. Generally. We respect the Intellectual Property Rights of others, and we require each of our users to do the same. We take claims of infringement of Intellectual Property Rights seriously, and we reserve the right, in our sole discretion, to block, interrupt, delete, or otherwise remove, disable or restrict access to, or refuse to display or transmit (collectively, "Remove" or "Removing") any User Content. In appropriate cases and in our sole discretion, we may Remove User Content if properly notified that such User Content infringes a third party's Intellectual Property Rights. It is our policy, in appropriate circumstances, to disable or terminate the User Accounts of users who are repeat infringers. Without limiting any of our rights to take other action described in this Agreement, including without limitation, immediately Removing or modifying Infringing Content without notice, we will, within a reasonable period of time following our receipt in writing of a final, non-appealable court order finding that specific User Content infringes a third party's Intellectual Property Rights ("Infringing Content"), Remove or modify such Infringing Content in the jurisdictions to which such order applies.
18.2. Reporting Claims of Copyright Infringement.
18.2.1. Digital Millennium Copyright Act (DMCA) Notice Procedures. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or through the FooMoo Services infringe your copyright, you may request removal of those materials (or access thereto) from the FooMoo Services by submitting written notification to the FooMoo Intellectual Property Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (the "DMCA"), the written notice (the "DMCA Notice") must include the following:
Your physical or electronic signature;
Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the FooMoo Services, a representative list of such works;
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
Adequate information by which we can contact you (such as your name, mailing address, telephone number, and, if available, an e-mail address);
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;
A statement that the information in the written notice is accurate; and
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
FooMoo's designated Intellectual Property Agent to receive DMCA Notices is:
Ms. Mei Hu
107 S West Street, #818
Alexandria, VA 22314
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the FooMoo Services is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
18.2.2. DMCA Counter-Notification Procedures. If you believe that your User Content was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with FooMoo (a "DMCA Counter-Notice") by submitting written notification to the FooMoo Intellectual Property Agent (identified above). Pursuant to the DMCA, the DMCA Counter-Notice must include the following:
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled;
A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;
Your name, address, and telephone number (and if you wish to facilitate our ability to contact you, your e-mail address); and
A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if your address is outside of the United States, for any judicial district in which FooMoo may be found), and that you will accept service of process from the person who provided us with the DMCA Notice at issue.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your DMCA Counter-Notice. Please be aware that if you knowingly materially misrepresent that material or activity on the FooMoo Services was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
18.3. Reporting Claims of Other Intellectual Property Infringement. If you believe any User Content accessible on or through the FooMoo Services infringes your Intellectual Property Rights (other than your copyrights), you may request removal of the User Content from the FooMoo Services by submitting written notification to the FooMoo Intellectual Property Agent (designated above). The written notice (an "Infringement Notice") must include all of the following:
Your physical or electronic signature.
Identification and description of the Intellectual Property Rights you believe to have been infringed. If you are reporting a claim of trademark infringement, your written notice must identify the exact trademark, service mark, or other mark (and if the mark is anything other than standard characters, you must include a copy of the mark), a description of the goods or services for which you believe you have trademark rights, the registration number and office of registration (if applicable), and a description of the reason why you believe the User Content ("Alleged Infringing Content") causes a likelihood of confusion with or dilution of your mark.
Identification of the Alleged Infringing Content you believe to be infringing in a sufficiently precise manner to allow us to locate it. Adequate information by which we can contact you (such as your name, mailing address, telephone number, and, if available, an e-mail address).
A statement that you have a good faith belief that use of the Alleged Infringing Content is not authorized by the owner of the Intellectual Property Rights, the owner's agent, or the law.
A statement that the information in the written notice is accurate.
A statement, under penalty of perjury, that you are the authorized owner of the Intellectual Property Rights or that you are authorized to act on behalf of the owner of the Intellectual Property Rights.
Upon receipt of an Infringement Notice, we may act in any manner that we deem reasonable and appropriate, including without limitation, temporarily or permanently Removing the Alleged Infringing Content described in such Infringement Notice. However, we will generally endeavor to provide a copy of the Infringing Notice to the user who is responsible for the applicable Alleged Infringing Content (the "Responsible Party") and request that such Responsible Party provide a written response to the party alleging infringement (the "Asserting Party") or to us, in which case we will forward such response to the Asserting Party, together with the Responsible Party's contact information (name, address and e-mail address). If the Responsible Party's response is not satisfactory to the Asserting Party, or the Responsible Party fails to respond within ten (10) business days of the date we forward the Infringement Notice, we may disclose, if known, the name, address, e-mail address, and other contact information of such Responsible Party to the Asserting Party, in which case, such Responsible Party and such Asserting Party will communicate directly to resolve the matters alleged in such Infringement Notice. Thereafter, but without limiting our rights to take any other action that we deem appropriate or reasonable (including Removing the Alleged Infringing Content), we will Remove or otherwise act with respect to the Alleged Infringing Content upon a written direction from both the Asserting Party and the Responsible Party or in accordance with Section 18.1 above.
WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY USER CONTENT OR ANY OTHER CONTENT OR MATERIALS THAT ARE POSTED, DISPLAYED, OR TRANSMITTED BY ANY PERSON IN CONNECTION WITH THE FOOMOO SERVICES (COLLECTIVELY, "THIRD PARTY MATERIALS") OR FOR ANY FAILURE TO REMOVE ANY THIRD PARTY MATERIALS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND SUBJECT TO APPLICABLE LAW, ANY PERSON WHICH ALLEGES THAT ANY THIRD PARTY MATERIALS INFRINGES ITS OR A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS EXPRESSLY AND FOREVER WAIVES ALL SUCH INFRINGEMENT CLAIMS AGAINST THE FOOMOO PARTIES AND AGREES THAT ITS SOLE RECOURSE WITH RESPECT TO ANY SUCH CLAIMS WILL BE AGAINST THE PERSON OR ENTITY WHO POSTED OR IS OTHERWISE RESPONSIBLE FOR SUCH THIRD PARTY MATERIALS.
WE HAVE NO RESPONSIBILITY OR LIABILITY TO ANY PERSON FOR REMOVING ANY THIRD PARTY MATERIALS. EACH USER EXPRESSLY AND FOREVER WAIVES ALL CLAIMS AGAINST THE FOOMOO PARTIES ARISING OUT OF OR RELATING TO THE TEMPORARY OR PERMANENT SUSPENSION OR REMOVAL OF ANY THIRD PARTY MATERIALS.
You agree that if you knowingly materially misrepresent that User Content or activity on the FooMoo Services is infringing Intellectual Property Rights, you will be held liable, and will reimburse us, for costs and fees (including attorneys' fees) and other damages we incur in reviewing, investigating, addressing, and responding to your written notice and the claims made in such notice.
19. Indemnification. You will indemnify, defend and hold harmless the FooMoo Parties (and their successors and assigns) from, against, and with respect to any and all liabilities, claims, losses, damages (including without limitation property damage and all incidental, consequential, punitive, special, and exemplary damages), injuries (including without limitation personal injury, sickness, and death), interest, fines, taxes, premiums, assessments, penalties, costs, and expenses (collectively, "Claims"), including without limitation any and all attorneys' fees, paraprofessionals' fees, and expenses incurred in the defense of Claims (whether or not a suit is instituted and, if so instituted, through all trial and appellate levels), arising out of, related to, or resulting from: (i) the use of the FooMoo Services or any ParentShare Services by you or anyone in your family; (ii) your breach of this Agreement or of any of your representations or warranties; (iii) the negligence or willful misconduct of you or anyone in your family; (iv) the violation of any applicable law by you or anyone in your family; (v) the violation or infringement of any third party rights by you or anyone in your family; or (vi) the FooMoo Parties' use of your User Content pursuant to the Content License. Notwithstanding the foregoing, nothing in this Agreement requires you to indemnify, defend, or hold harmless the FooMoo Parties (or any other person) for any Claims to the extent that such Claims occur as a result of our gross negligence, recklessness, or willful misconduct. The provisions of this Section 19 apply to the fullest extent permitted by applicable law. Your obligations under this Section will continue even if you stop using the FooMoo Services and will survive the closing, deletion, expiration, or termination of your User Account or this Agreement.
20. Disclaimers and Limitation of Liability – PLEASE READ CAREFULLY: This Section 20 limits the liability of the FooMoo Parties. The provisions of this Section apply to the maximum extent permitted under applicable law. Some jurisdictions do not permit the limitation of liability in contracts or the disclaimers of implied warranties, so some or all of the provisions of this Section may not apply to you.
20.1. You understand and agree that: FooMoo does not provide transportation services, FooMoo is not a transportation carrier, FooMoo is not a common carrier or public carrier, and FooMoo is not a transportation network company. It is up to the driver to decide whether or not to offer a ride to a rider contacted through the FooMoo Platform, and it is up to the rider to decide whether or not to accept a ride from any driver contacted through the FooMoo Platform. We cannot ensure that a driver or rider will complete an arranged rideshare service. We have no control over the quality or safety of the transportation that occurs as a result of any ParentShare Services.
20.2. You understand and agree that: FooMoo does not provide childcare services and FooMoo is not a childcare provider. It is up to each FooMoo User to decide whether or not to offer childcare services to another User contacted through the FooMoo Platform, and it is up to each FooMoo User to decide whether or not to accept childcare service from any FooMoo User contacted through the FooMoo Platform. We cannot ensure that any FooMoo User will complete any arranged childcare services. We have no control over the quality or safety of the childcare that occurs as a result of any ParentShare Services.
20.3. You understand and agree that FooMoo does not provide ParentShare Services, that the individuals who provide ParentShare Services are independent contractors and are not our employees or agents, and that we are not responsible or liable for the acts or omissions of our users or of any individuals who provide ParentShare Services. You may be introduced to FooMoo users or other third parties that may pose a risk of harm to you or others. We make no representation or warranty about the quality, suitability, safety, ability, experience, character, or professionalism of FooMoo users or any individual who provides ParentShare Services. WE EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF FOOMOO USERS, YOU, AND ANYONE IN YOUR FAMILY. AS BETWEEN YOU AND US: YOU ASSUME, ON BEHALF OF YOURSELF AND EVERYONE IN YOUR FAMILY, ALL RISKS ARISING OUT OF THE USE OF PARENTSHARE SERVICES. YOU ARE ADVISED, AND HEREBY AGREE, TO TAKE REASONABLE SAFETY PRECAUTIONS WITH RESPECT TO THE PARENTSHARE SERVICES. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON YOUR OWN BEHALF AND ON BEHALF OF EVERYONE IN YOUR FAMILY AND YOUR RESPECTIVE SUCCESSORS, HEIRS, AND ASSIGNS, HEREBY FOREVER RELEASE, ACQUIT, DISCHARGE, AND AGREE NOT TO SUE OR INSTITUTE ANY LEGAL ACTION AGAINST THE FOOMOO PARTIES FROM, AGAINST, AND WITH RESPECT TO, ALL CLAIMS, ACTIONS, LIABILITY, OBLIGATIONS, DAMAGES, CAUSES OF ACTION (WHETHER BASED IN TORT, CONTRACT, OR ON ANY LEGAL OR EQUITABLE GROUND OR THEORY OF RECOVERY) ARISING FROM, RELATED TO, OR ASSOCIATED WITH: (1) THE PARENTSHARE SERVICES, (2) ANY ACTS OR OMISSIONS OF FOOMOO USERS AND THE PROVIDERS OF PARENTSHARE SERVICES, THEIR AFFILIATES, OR THE EMPLOYEES, REPRESENTATIVES, OR AGENTS OF THE PROVIDERS OF PARENTSHARE SERVICES OR THEIR AFFILIATES, OR (3) ANY TRANSACTION BETWEEN YOU AND A FOOMOO USER OR THE PROVIDER OF PARENTSHARE SERVICES.
20.4. You understand that we cannot and do not guarantee or warrant that User Content, files, or other content or materials available for downloading from the Internet or transmitted through the FooMoo Services will be free of viruses, malware, or other destructive code. You are responsible for implementing sufficient procedures and safeguards to satisfy your particular requirements for anti-virus and anti-malware protection and for maintaining a means external to the FooMoo Services for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, MALWARE, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT, DAMAGE, OR DELETE YOUR DEVICES OR DATA DUE TO YOUR USE OF THE FOOMOO SERVICES OR YOUR ACCESSING OR DOWNLOADING ANY USER CONTENT, FOOMOO MATERIALS, OR OTHER MATERIALS AVAILABLE ON OR THROUGH THE FOOMOO SERVICES OR LINKED TO FROM THE FOOMOO SERVICES.
20.5. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HAVE NO LIABILITY OF ANY KIND TO YOU OR OTHERS AS A RESULT OF ANY LOSS, THEFT, DELETION, DESTRUCTION, ALTERATION, OR CORRUPTION OF, DAMAGE, UNAUTHORIZED ACCESS TO, OR FAILURE TO TRANSMIT, STORE, BACKUP, OR ENCRYPT ANY USER CONTENT OR ANY DATA OR FILES STORED ON ANY DEVICE USED TO ACCESS THE FOOMOO SERVICES.
20.6. YOUR USE OF THE FOOMOO SERVICES AND THE FOOMOO MATERIALS (AND ALL OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE FOOMOO SERVICES) IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE FOOMOO SERVICES AND THE FOOMOO MATERIALS (AND ALL OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE FOOMOO SERVICES) ARE PROVIDED "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
20.7. TO THE FULLEST EXTENT PERMITTED BY LAW, THE FOOMOO PARTIES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. NONE OF THE FOOMOO PARTIES MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, COMPLETENESS, APPROPRIATENESS, LEGALITY, SAFETY, OR AVAILABILITY OF THE FOOMOO SERVICES OR THE FOOMOO MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE FOOMOO SERVICES). WITHOUT LIMITING THE FOREGOING, NONE OF THE FOOMOO PARTIES REPRESENTS OR WARRANTS THAT THE FOOMOO SERVICES OR THE FOOMOO MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE FOOMOO SERVICES) WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE FOOMOO SERVICES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE FOOMOO SERVICES OR THE FOOMOO MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE FOOMOO SERVICES) WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
20.8. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER YOU NOR ANY OF THE FOOMOO PARTIES WILL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES SUFFERED BY YOU OR ANY OTHER PERSON ARISING OUT OF, RELATED TO, OR ASSOCIATED WITH (A) YOUR USE OF THE FOOMOO SERVICES, (B) THE USE OF THE FOOMOO SERVICES BY ANY OTHER PERSON, OR (C) THE OPERATION OR MALFUNCTION OF THE FOOMOO SERVICES, REGARDLESS OF WHETHER OR NOT YOU, THE FOOMOO PARTIES, OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20.9. TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIABILITY OF THE FOOMOO PARTIES TO YOU OR ANY OTHER PERSON FOR ANY REASON AND UPON ANY CAUSE OF ACTION (WHETHER BASED IN TORT, CONTRACT, OR ON ANY LEGAL OR EQUITABLE GROUND OR THEORY OF RECOVERY) WILL BE LIMITED TO THE LESSER OF YOUR ACTUAL DAMAGES OR THE TOTAL AMOUNT PAID BY YOU TO FOOMOO DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING SUCH LIABILITY. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, NON‑INFRINGEMENT, AND OTHER CAUSES OF ACTION OR ALLEGATIONS.
20.10. If, at any time, the FooMoo Platform provides you with location data, such location data will be provided for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither FooMoo, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data provided through the FooMoo Platform. You understand and agree that any of your User Content, including geolocational data, you upload, provide, or post on the FooMoo Platform may be accessible to FooMoo and certain Users of the FooMoo Platform.
20.11. You acknowledge and agree: (a) that none of the FooMoo Parties nor any person or entity acting, or purporting to act, on behalf of FooMoo has made any representations to you other than those representations expressly made by FooMoo in this Agreement, and (b) that in connection with your acceptance of this Agreement, you have not relied upon any representations made by any of the FooMoo Parties or any person or entity acting, or purporting to act, on behalf of FooMoo other than those representations and warranties expressly made by FooMoo in this Agreement.
20.12. SOME JURISDICTIONS EITHER DO NOT ALLOW OR OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THIS Section 20. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING IN THIS SECTION MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS Section 20 WILL CONTINUE TO APPLY EVEN IF YOU STOP USING THE FOOMOO SERVICES AND WILL SURVIVE THE CLOSING, DELETION, EXPIRATION, OR TERMINATION OF YOUR USER ACCOUNT OR THIS AGREEMENT.
20.13. Notwithstanding any other provision of this Agreement to the contrary, nothing in this Agreement will be deemed to limit our liability for any personal injury, death, or property damage occurring on our premises to the extent that such personal injury, death, or property damages results from our negligence, recklessness, or willful misconduct. The limitations of liability set forth in this Section 20: (a) only apply to the extent permitted by law, and (b) do not apply to the extent that such liability results from our gross negligence, recklessness, or willful misconduct.
21. Governing Law and Interpretation. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia and the applicable federal laws of the United States, without regard to the conflicts of law provisions of any jurisdiction. Without limiting the foregoing provision, you and FooMoo expressly agree (a) that the Virginia Uniform Computer Information Transactions Act, Virginia Code §§ 59.1-501.1 et seq. ("UCITA") is expressly excluded from this Agreement, (b) that any and all terms contained in UCITA will have no force or effect on any portion of this Agreement, and (c) that UCITA does not apply to this Agreement or the FooMoo Services. If any ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by FooMoo and you, and no presumptions or burden of proof will arise favoring or disfavoring FooMoo or you by virtue of authorship of any of the provisions of this Agreement. The descriptive headings in this Agreement are inserted for convenience only and do not constitute a part of this Agreement. Throughout this Agreement, the referents of masculine, feminine, and gender neutral pronouns will not be limited to referents of the specified gender. The words "include", "includes", and "including" are not limiting, the word "or" is not exclusive, and the words "herein", "hereunder", and "hereof" refer to this Agreement. We retain all rights at law and in equity to enforce the provisions of this Agreement in accordance with applicable laws.
22. Dispute Resolution – PLEASE READ CAREFULLY: This Section 22 includes important provisions that affect your legal rights, including, for example, a waiver of the right to a jury, a waiver of the right to participate in a class action or similar proceeding, a limitation of the period of time for bringing a claim against us, and an agreement that all court proceedings will take place only in the City of Alexandria, Virginia.
22.1. Initial Dispute Resolution. We believe you will have a positive experience using the FooMoo Platform and all of the FooMoo Services, and we invite you to contact us about any questions or issues you experience. We want to address any concerns you may have about the FooMoo Services without needing to engage in a formal legal process. As used herein, "Dispute" (collectively, "Disputes") refers to any controversy, disagreement, dispute, cause of action, or claim. You and FooMoo agree to attempt to resolve any Dispute through an informal dispute resolution process (the "Informal Dispute Resolution Process") and agree to work in good faith to settle and resolve any Dispute before joining or filing a lawsuit. Either you or FooMoo may initiate the Informal Dispute Resolution Process by sending written notice requesting informal dispute resolution and describing the Dispute in detail (the "Informal Resolution Request") to the other party, as follows (a) if to FooMoo, by Certified Mail to: FooMoo Dispute Resolution, c/o Andrew Stockment, P.O. Box 2057, Charlottesville, VA 22902; or (b) if to you, by using any of the contact information in your Account Information. As part of the Informal Dispute Resolution Process, you and we agree to work in good faith to settle any Dispute directly through consultation and good faith negotiations, which is a prerequisite to either you or FooMoo joining or initiating formal legal proceedings (except for claims brought by FooMoo pursuant to Section 22.3 below). If you and FooMoo do not reach a mutually agreed resolution within a period of thirty (30) days from the date the Informal Resolution Request is given pursuant to this Section 22.1 (the "Informal Resolution Period"), then either you or FooMoo may initiate formal legal proceedings. You and FooMoo expressly waive the right to assert or request, and agree not to assert or request, any claims or remedies (including any amounts of monetary damages) in any lawsuit or court proceeding that were not first asserted or requested through the Informal Dispute Resolution Process during the Informal Resolution Period. You and FooMoo may, by mutual agreement, extend the Informal Resolution Period.
22.2. Class Action Waiver and Right to Opt-out.
22.2.1. WE AGREE THAT WE MAY BRING CLAIMS AGAINST YOU, AND YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE FOOMOO PARTIES, ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and FooMoo agree, no judge or court may consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding. The judge or court may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
22.2.2. You have the right to opt-out of the above class action waiver provision by completing, signing, and mailing the Opt-out Notice form located at https://www.foo-moo.com/legaloptout within sixty (60) days after the date you created your User Account. In order for the Opt-out Notice to be valid and effective, it must be completed in its entirety and signed by you, and you understand and agree that you are responsible for retaining proof of mailing and delivery. If you exercise your option to opt out as provided in this paragraph, then Section 22.2.1 above will not apply and will not be considered a part of this Agreement.
22.3. Injunctive Relief. You acknowledge and agree that any violation of our Policies may cause irreparable harm to the FooMoo Parties (our Users, service providers, and other third parties), for which monetary damages would not be an adequate remedy. Therefore, notwithstanding Section 22.1 above, you agree that: (a) we will be entitled to immediate injunctive relief to enjoin any actual, suspected, threatened, or potential violation by you of our Policies; (b) we will be entitled to such injunctive relief without any obligation (i) to post a bond or other security, (ii) to prove actual damages or to prove that monetary damages will not provide an adequate remedy, or (iii) to participate in the Informal Dispute Resolution Process or wait until the end of the Informal Resolution Period before ; and (c) you will not oppose or otherwise challenge the appropriateness of injunctive relief or the entry by a court of competent jurisdiction of an order granting injunctive relief.
22.4. Venue for Judicial Actions. Any and all claims and Disputes arising out of or relating to (a) this Agreement, (b) the FooMoo Platform, the FooMoo Materials, or any of the FooMoo Services (or the use of any of the foregoing by you or any other person), (c) the ParentShare Services or any products or services provided by Users or other third parties, (d) the performance or non-performance by you or us of any of obligations under this Agreement, or (e) actual or alleged infringement by you, any of the FooMoo Parties, or the FooMoo Materials or the FooMoo Services of any Intellectual Property Rights, will be commenced and maintained only in a state or federal court of competent subject matter jurisdiction situated or located in the City of Alexandria, Virginia, United States and the applicable appellate courts therefrom. YOU AND FooMoo BOTH CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN ANY SUCH COURT AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION (INCLUDING WITHOUT LIMITATION ANY OBJECTION BASED ON INCONVENIENT FORUM) WHICH YOU OR WE MAY NOW OR HEREAFTER HAVE TO VENUE IN ANY SUCH COURT.
22.5. Service of Process. To the fullest extent permitted by law, if your Account Information does not contain your current and accurate physical address (or if we are unable, after reasonable efforts, to effect service of process on you at such physical address), you hereby irrevocably agree to accept service of process by any means of communication associated with your User Account or through any contact information in your Account Information, including without limitation, service by U.S. mail, e-mail, SMS, messages, push notifications, or alerts displayed or sent to you through the FooMoo Platform, or social media messages, posts, or tweets, and you waive any objections to service of process by such methods.
22.6. Time Period for Bringing Claims. TO THE FULLEST EXTENT PERMITTED BY LAW: YOU MUST COMMENCE OR FILE ANY CLAIM OR ACTION ARISING OUT OF OR RELATING TO (A) THIS AGREEMENT, (B) THE FOOMOO PLATFORM, the FooMoo Materials, OR ANY OF THE FOOMOO SERVICES (OR THE USE OF ANY OF THE FOREGOING BY YOU OR ANY OTHER PERSON), (C) The ParentShare Services, (d) THE PERFORMANCE OR NON-PERFORMANCE BY US OF ANY OF OUR OBLIGATIONS UNDER THIS AGREEMENT, OR (e) ACTUAL OR ALLEGED INFRINGEMENT BY ANY OF THE FOOMOO PARTIES, the FooMoo Materials, OR THE FOOMOO SERVICES OF ANY INTELLECTUAL PROPERTY RIGHTS, WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CLAIM OR CAUSE OF ACTION IS PERMANENTLY BARRED. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE THE RIGHT TO COMMENCE, file, or maintain ANY SUCH CLAIM OR ACTION UNDER ANY LONGER STATUTE OF LIMITATIONS.
22.7. Waiver of Jury Trial. You and we desire to avoid the additional time and expense related to a jury trial of any disputes arising under this Agreement. THEREFORE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THAT CANNOT BE WAIVED: YOU AND WE IRREVOCABLY AND UNCONDITIONALLY WAIVE and covenant they you and FooMoo will not assert (whether as plaintiff, defendant, or otherwise) any right to trial by jury in any legal action, proceeding, cause of action, claim, or COUNTERCLAIM (WHETHER BASED IN TORT, BREACH OF CONTRACT, OR otherwise) arising in whole or in part under, or in connection with, (A) THIS AGREEMENT, (B) THE FOOMOO PLATFORM, THE FooMoo Materials, OR ANY OF THE FOOMOO SERVICES (OR THE USE OF ANY OF THE FOREGOING BY YOU OR ANY OTHER PERSON), (C) THE PARENTSHARE SERVICES, (D) THE PERFORMANCE OR NON-PERFORMANCE BY YOU OR US OF ANY OF OBLIGATIONS UNDER THIS AGREEMENT, OR (E) ACTUAL OR ALLEGED INFRINGEMENT BY YOU, ANY OF THE FOOMOO PARTIES OR AFFILIATES THEREOF, OR THE FooMoo Materials or the FOOMOO SERVICES OF ANY INTELLECTUAL PROPERTY RIGHTS. YOU AND WE AGREE THAT YOU OR FOOMOO MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY, AND BARGAINED-FOR AGREEMENT BETWEEN YOU AND FOOMOO. You and we FURTHER AGREE TO IRREVOCABLY WAIVE the RIGHT TO A TRIAL BY JURY IN ANY SUCH ACTION AND ANY SUCH ACTION WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. YOU and We ACKNOWLEDGE AND AGREE THAT THE FOREGOING WAIVER AND COVENANT ARE KNOWINGLY, FREELY, AND VOLUNTARILY GIVEN, ARE DESIRED BY both you and FooMoo, AND ARE IN THE INTEREST OF BOTH PARTIES. YOU CERTIFY AND ACKNOWLEDGE THAT: (1) NONE OF THE FOOMOO PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT WE WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION; (2) YOU HAVE CAREFULLY CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (3) YOU ARE MAKING THIS WAIVER KNOWINGLY AND VOLUNTARILY; AND (4) YOU HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS IN THIS SECTION.
23. Notice to Us. Except as otherwise provided herein or as otherwise directed by us from time to time, you may provide notice to us in writing at the following address: help@foo-moo.com , and such notice will be deemed given when we receive it.
24. Force Majeure. We will not be deemed in violation of this Agreement if we are prevented from performing any of our obligations under this Agreement by reason of any of the following (each, a "Force Majeure Event" ): acts of God; fire, earthquake, tsunami, volcanic eruption, windstorm (including tornado or hurricane), or other natural disasters; epidemics, pandemics, or other outbreaks of disease; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, or explosion; government order or law; actions, embargoes or blockades; action by any government authority; national, state, or local emergency; strikes, labor stoppages or slowdowns or other industrial disturbances; shortage of adequate utility services or transportation facilities; any other events or circumstances which are not within our reasonable control. The provisions of this paragraph apply to any Force Majeure Event, whether in effect now or occurring at any time in the future, and regardless of whether such Force Majeure Event was known or was foreseeable.
25. Termination. We reserve the right, without any liability to you, to Remove your User Content (in whole or in part), to modify, disable, or delete your username, to suspend, close, delete, or terminate your User Account, and to suspend or terminate your permission to access and use the FooMoo Platform or the FooMoo Services for violation of this Agreement (including the Policies), for failure to make any payment when due to us or to other FooMoo Users required under this Agreement, or for any other reason. If you wish to end your relationship with us, you may close your User Account at any time. We reserve the right to retain historical records and information related to your User Account for financial, security, legal, and other purposes. This Agreement and all rights, licenses, and permissions granted by us to you will automatically terminate upon the suspension, closing, deletion, expiration, or termination of your User Account or of this Agreement. Any termination, cancellation, or expiration of this Agreement notwithstanding (and notwithstanding the suspension, closing, deletion, or termination of your User Account or your stopping using the FooMoo Services), Sections 11.1, 11.2, 11.4, 12.2, 12.3, 12.4, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, and 26, and any provisions which are by their terms intended to survive and continue, will survive and continue.
26. Miscellaneous. Nothing in this Agreement will be construed as creating any partnership, joint venture, franchise, employment relationship, or agency relationship in any way between you and any of the FooMoo Parties. You will not have apparent or actual authority to bind any of the FooMoo Parties to any debt, contract, or other arrangement. This Agreement (including our Policies) constitutes the entire agreement between you and FooMoo pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements between you and us pertaining to the subject matter hereof. If any term or provision of this Agreement is finally determined by a court of competent jurisdiction to be void, unenforceable, invalid, or otherwise contrary to law or equity, such provision will be enforced to the extent permitted by law, and such determination will not affect any other term or provision of this Agreement. No waiver of any term or condition of this Agreement by any party will be deemed a continuing or further waiver of the same term or condition or a waiver of any other term or condition of this Agreement. This Agreement is personal to you. Nothing in this Agreement is intended, or will be deemed, to confer any rights or remedies upon any person other than you and the FooMoo Parties. You will not assign, delegate, or subcontract any of your rights or obligations under this Agreement without our prior written consent, and any attempt to do so without such consent will be void. You acknowledge and agree that we may assign, delegate, or subcontract any or all of our rights or obligations hereunder. Subject to the foregoing, this Agreement will inure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns.
27. Contacting Us. If you have any questions about this Agreement, the Policies, the FooMoo Services, or your User Account, you may contact us by e-mail at help@foo-moo.com .