BORROWED, INC. TERMS OF SERVICE AND ACCEPTABLE USE POLICY
Last Updated: March 2022
BORROWED, INC. (“BORROWED”), is at all times committed to complying with the laws and regulations governing the use of the Internet, e-mail transmission and text messaging, and preserving for all of its Customers, the ability for them to use our online data transfer platform (hereinafter, referred to as our “Services" ).
By accessing our websites or applications, you, the Customer, agree to these Terms of Service and Acceptable Use Policy ("Terms"). If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver, do not access or use our Services. If you have any questions about these Terms or our Services , please contact us legal@getborrowed.com.
Description of Services. BORROWED provides a platform to facilitate the renting of goods over the Internet and applicable applications ("Services"). BORROWED reserves the right to change or modify these Terms at any time, effective when posted on BORROWED’s website. Customer's use of the Services after changes to the Terms are posted shall constitute acceptance of any changed or additional terms.
ALL THIRD-PARTY SERVICE PROVIDERS OPERATE INDEPENDENTLY FROM BORROWED. BORROWED WILL NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY THIRD-PARTY PROVIDER. BORROWED IS NOT RESPONSIBLE FOR ANY VIOLATIONS OF APPLICABLE LAWS BY ANY THIRD-PARTY PROVIDER AND DOES NOT VERIFY ANY THIRD-PARTY PROVIDER’S COMPLIANCE WITH APPLICABLE LAWS OR REGULATIONS. BORROWED HAS NO RESPONSIBILITY OR LIABILITY FOR ACTS BY ANY THIRD-PARTY SERVICE PROVIDER.
Prohibited Activities of Services.
General Prohibitions. BORROWED prohibits use of the Services in any way that is unlawful, harmful to or interferes with use of BORROWED’s network or systems, or the network of any other provider, interferes with the use or enjoyment of services received by others, infringes intellectual property rights, results in the publication of threatening or offensive material, or constitutes Spam/E-mail/Usenet abuse, a security risk or a violation of privacy.
Unlawful Activities. Services shall not be used in connection with any criminal, civil or administrative violation of any applicable local, state, provincial, federal, national or international law, treaty, court order, ordinance, regulation or administrative rule.
Violation of Intellectual Property Rights. Services shall not be used to publish, submit/receive upload/download, post, use, copy or otherwise reproduce, transmit, re-transmit, distribute or store any content/material or to engage in any activity that infringes, misappropriates or otherwise violates the intellectual property rights or privacy or publicity rights of BORROWED or any individual, group or entity, including but not limited to any rights protected by any copyright, patent, trademark laws, trade secret, trade dress, right of privacy, right of publicity, moral rights or other intellectual property right now known or later recognized by statute, judicial decision or regulation.
Threatening Material or Content. Services shall not be used to host, post, transmit, or re-transmit any content or material (or to create a domain name or operate from a domain name), that harasses, or threatens the health or safety of others. In addition, for those Services that utilize BORROWED provided web hosting, BORROWED reserves the right to decline to provide such services if the content is determined by BORROWED to be obscene, indecent, hateful, malicious, racist, defamatory, fraudulent, libelous, treasonous, excessively violent or promoting the use of violence or otherwise harmful to others.
Inappropriate Interaction with Minors. BORROWED complies with all applicable laws pertaining to the protection of minors, including when appropriate, reporting cases of child exploitation to the National Center for Missing and Exploited Children. For more information about online safety, visit www.ncmec.org or www.getborrowed.com/safety.
Child Pornography. Services shall not be used to publish, submit/receive, upload/download, post, use, copy or otherwise produce, transmit, distribute or store child pornography. Suspected violations of this prohibition may be reported to BORROWED at the following e-mail address: legal@getborrowed.com. BORROWED will report any discovered violation of this prohibition to the National Center for Missing and Exploited Children and take steps to remove child pornography (or otherwise block access to the content determined to contain child pornography) from its servers.
Spam/E-mail Abuse.Violation of the CAN-SPAM Act of 2003, or any other applicable law regulating e-mail services, constitutes a violation of these Terms.
Security Violations. Customer is responsible for ensuring and maintaining security of their systems and the machines that connect to and use Services, including implementation of necessary patches and operating system updates.
Services may not be used to interfere with, gain unauthorized access to, or otherwise violate the security of BORROWED's or another parties’, server, network, network access, personal computer or control devices, software or data, or other system, or to attempt to do any of the foregoing. Examples of system or network security violations include but are not limited to:
unauthorized monitoring, scanning or probing of network or system or any other action aimed at the unauthorized interception of data or harvesting of e-mail addresses;
hacking, attacking, gaining access to, breaching, circumventing or testing the vulnerability of the user authentication or security of any host, network, server, personal computer, network access and control devices, software or data without express authorization of the owner of the system or network;
mpersonating others or secretly or deceptively obtaining personal information of third parties (phishing, etc.);
using any program, file, script, command or transmission of any message or content of any kind, designed to interfere with a terminal session, the access to or use of the Internet or any other means of communication;
distributing or using tools designed to compromise security (including but not limited to SNMP tools), including cracking tools, password guessing programs, packet sniffers or network probing tools (except in the case of authorized legitimate network security operations);
knowingly uploading or distributing files that contain viruses, spyware, Trojan horses, worms, time bombs, cancel bots, corrupted files, root kits or any other similar software or programs that may damage the operation of another's computer, network system or other property, or be used to engage in modem or system hi-jacking;
engaging in the transmission of pirated software;
with respect to dial-up accounts, using any software or device designed to defeat system time-out limits or to allow Customer's account to stay logged on while Customer is not actively using the Services or using such account for the purpose of operating a server of any type;
using manual or automated means to avoid any use limitations placed on the Services;
providing guidance, information or assistance with respect to causing damage or security breach to BORROWED’s network or systems, or to the network of any other Service provider;
failure to take reasonable security precautions to help prevent violation(s) of these Terms.
Customer Responsibilities.
Customer remains solely and fully responsible for the content of any material posted, hosted, downloaded/uploaded, created, accessed or transmitted using the Services. BORROWED has no responsibility for any material created on the BORROWED's network or accessible using Services, including content provided on third-party websites linked to the BORROWED network. Such third-party website links are provided as Internet navigation tools for informational purposes only, and do not constitute in any way an endorsement by BORROWED of the content(s) of such sites.
Customer's are responsible for taking prompt corrective action(s) to remedy a violation of these Terms and to help prevent similar future violations.
Terms Enforcement and Notice
Customer's failure to observe the guidelines set forth in these Terms may result in BORROWED taking actions anywhere from a warning to a suspension or termination of Customer’s Services. When feasible, BORROWED may provide Customer with a notice of a Terms violation via e-mail or otherwise allowing the Customer to promptly correct such violation.
BORROWED reserves the right, however, to act immediately and without notice to suspend or terminate affected Services in response to a court order or government notice that certain conduct must be stopped or when BORROWED reasonably determines, that the conduct may: (1) expose BORROWED to sanctions, prosecution, civil action or any other liability; (2) cause harm to or interfere with the integrity or normal operations of BORROWED network or networks with which BORROWED is interconnected; (3) interfere with another BORROWED customer's use of Services or the Internet; (4) violate any applicable law, rule or regulation; or (5) otherwise present an imminent risk of harm to BORROWED or BORROWED customer.
BORROWED has no obligation to monitor content of any materials distributed or accessed using the Services. However, BORROWED may monitor content of any such materials as necessary to comply with applicable laws, regulations or other governmental or judicial requests; or to protect the BORROWED network and its customers.
Incident Reporting. Any complaints regarding violation of these Terms by a Customer, or its user, should be directed to legal@getborrowed.com. Where possible, include details that would assist BORROWED in investigating and resolving such complaint (e.g. expanded headers, IP address(s), a copy of the offending transmission and any log files). Any notification that BORROWED sends to its customers pursuant to these Terms will be sent via e-mail to the e-mail address on file with BORROWED or may be in writing to customer's address of record. It is Customer's responsibility to promptly notify BORROWED of any change of contact information.
Privacy. Please refer to our Privacy Notice at http://www.getborrowed.com/privacy for information about how we collect, use, store and disclose information about you.
Data. Customer grants to BORROWED a non-exclusive, irrevocable right to collect, store and use the Customer Data “Customer Data” means any and all data provided by Customer to BORROWED pursuant to Customer's use of these Services, including third-party data, personally identifiable information and associated metadata transmitted to or from, or stored on, BORROWED's system. Customer represents and warrants that BORROWED owns all rights in and to the collected and stored Customer Data.
Transfer and Processing Data. By accessing or using our Services, Customer consents to the processing, transfer and storage of information about them in and to the United States and other countries, where they may not have the same rights and protections as they do under local law.
Limited License; Copyright and Trademark. Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “BORROWEDContent”) are owned by or licensed to BORROWED and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, BORROWED and our licensors reserve all rights in and to our Services and the BORROWED Content.You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and BORROWED Content for your own personal use; however, such license is subject to these Terms and does not include any right to: (a) sell, resell or commercially use our Services or BORROWED Content; (b) copy, reproduce, distribute, publicly perform or publicly display BORROWED Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or BORROWED Content ; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or BORROWED Content other than for their intended purposes. Any use of our Services or BORROWED Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
Indemnification. To the fullest extent permitted by applicable law, Customer will indemnify, defend, and hold harmless BORROWED and each of our respective officers, members, directors, agents, partners, contractors, and employees (individually and collectively, the “BORROWED Parties”) from and against any loss, liability, claim, demand, damages (including damages relating to personal injury, death and harm to property), expenses or costs (“Claims”) arising out of or related to: (a) Customer access to or use of BORROWED Services; (b) the collection and storage of Customer Data; (c) Customer feedback; (d) Customer violation of these Terms or Customer Data; (c) Customer feedback; (d) Customer violation of these Terms or applicable laws and regulations; (e) Customer violation, misappropriation or infringement of any rights of another, including intellectual property rights or privacy rights; (f) any dispute or issue between Customer and any third party, third party service provider, or other third party merchant; (g) Customer conduct in connection with BORROWED Services. Customer agrees to promptly notify BORROWED Parties of any third-party Claims, cooperate with BORROWED Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims, including, but not limited to, attorneys' fees. Customer also agree that the BORROWED Parties will have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between Customer and BORROWED or the other BORROWED Parties.
Disclaimers. BORROWED does not control, endorse or take responsibility for any information, products or services provided, sold, or linked to by our Services. Customer's use of BORROWED Services is at their sole risk. BORROWED Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, BORROWED does not represent or warrant that its Services are accurate, complete, reliable, current or error-free. While BORROWED attempts to make Customer access to and use of its Services safe, BORROWED cannot and does not represent or warrant that its Services or servers are free of viruses or other harmful components. Customer assumes the entire risk as to the quality and performance of Services. BORROWED does not represent or warrant any third-party services or products. BORROWED does not verify any third-party service provider’s or a third party’s compliance with applicable laws and regulations. Customer assumes the entire risk as to the quality and performance of the information, products, and services provided by third-party service providers and third parties.
Limitation of Liability. BORROWED will not be liable to Customer under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages, lost profits or other damages of any type or kind, including damages relating to harm to person (including death) and harm to property, even if BORROWED has been advised of the possibility of such damages. To the extent a claim for liability (including the theories listed above) arise from the actions relating to third party service providers, then BORROWED will not be liable under any of the theories above and will not be liable for any action relating to gross negligence, intentional misconduct, and fraud of the third party service provider. The total liability of BORROWED for any claim arising out of or relating to these Terms or Service, regardless of the form of the action, is limited to the amount paid, if any, by Customer o access or use the Services. The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of BORROWED or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to Customer.
Release. To the fullest extent permitted by applicable law, Customer release BORROWED from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence, personal injury, death, or harm to property), arising out of or related to disputes between users and the acts or omissions of third parties. Customer expressly waives any rights they may have under any statute or common law principles that would otherwise limit the coverage of this release to include only those claims which Customer may know or suspect to exist in their favor at the time of agreeing to this release.
Dispute Resolution; Binding Arbitration. Please read the following section carefully because it requires Customer to arbitrate certain disputes and claims with BORROWED and limits the manner in which Customer can seek relief from BORROWED.
Except for small claims disputes in which Customer or BORROWED seek to bring an individual action in small claims court located in the county of Customer billing address or disputes in which Customer or BORROWED seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, Customer waives Customer's rights to a jury trial and to have any dispute arising out of or related to these Terms or BORROWED Services resolved in court. Instead, all disputes arising out of or relating to these Terms or Services will be resolved through confidential binding arbitration held in King County, Washington in accordance with theStreamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”). Customer either acknowledges and agrees that they have read and understand the rules of JAMS or waive the opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason. Customer and BORROWED agree that these Terms affect interstate commerce and that the enforceability of this Section 15 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “ FAA ”), to the maximum extent permitted by applicable law. As limited by the FAA , these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Customer and BORROWED agree that for any arbitration Customer initiates, Customer will pay the filing fee and BORROWED will pay the remaining JAMS fees and costs. For any arbitration initiated by BORROWED, BORROWED will pay all JAMS free and costs. Customer and BORROWED agree that the state or federal courts of the State of Washington and the United States sitting in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR SERVICES MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT CUSTOMER AND BORROWED WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
Customer shall have the right to opt out of binding arbitration within 30 days of the date Customer first accepted the terms of this Section 15 by sending a written letter to BORROWED, INC. at 113 Cherry Street PMB 21149 Seattle, WA 98104-2205 stating the same. In order to be effective, the opt out notice must include Customer's full name and clearly indicate Customer's intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 16.
Governing Law and Venue. THESE TERMS AND CUSTOMER'S ACCESS TO AND USE OF BORROWED SERVICES WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF WASHINGTON STATE, WITHOUT REGARD TO CONFLICT OF LAW RULES OR PRINCIPLES (WHETHER OF WASHINGTON OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. ANY DISPUTE BETWEEN THE PARTIES THAT IS NOT SUBJECT TO ARBITRATION OR CANNOT BE HEARD IN SMALL CLAIMS COURT WILL BE RESOLVED IN THE STATE OR FEDERAL COURTS OF WASHINGTON STATE AND THE UNITED STATES, RESPECTIVELY, SITTING IN KING COUNTY, WASHINGTON.
Changes to these Terms. BORROWED may make changes to these Terms from time to time. If BORROWED make changes, it will post the amended Terms to its Services and update the “Last Updated” date above. Unless BORROWED says otherwise in that notice, the amended Terms will be effective immediately and Customer's continued access to and use of the Services after BORROWED provides notice will confirm Customer's acceptance of the changes. If Customer does not agree to the amended Terms, Customer must stop accessing and using BORROWED Services.
Termination. BORROWED reserves the right, without notice and in its sole discretion, to terminate Customer's right to access or use the Services. BORROWED is not responsible for any loss or harm related to Customer's inability to access or use the Services.
Severability. If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
Miscellaneous. These Terms constitute the entire agreement between Customer and BORROWED relating to Customer's access to and use of the Services. The failure of BORROWED to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.