Digitizing by Rachel Website and Service Terms and Conditions

Effective:  June 22, 2021

These Website and Service Terms and Conditions (“Terms of Use”) are entered into by and between you and Blue Hummingbird, LLC, (“Company,” “we” or “us”). These Terms of Use together with any documents they expressly incorporate by reference govern your access to and use of www.digitizingbyrachel.com, (the “Website”) and any content, functionality, online and/or mobile services, websites, and software provided on or in connection with the Website (collectively with the Website, the "Services"), whether as a guest or registered user, including any services you purchase from us through the Website or over the phone, any free trials and subscription packages, mobile applications associated with the Website, and any other Blue Hummingbird, LLC/DigitizingbyRachel website, app or online service which links to these Terms of Use. 

 Please read the Terms of Use carefully before you start to use the Website or access any Services. By accessing or using the Services, you signify that you have read, understood and agree to be bound by these Terms of Use, and to the collection and use of your information as set forth in our Privacy Policy whether or not you are a registered user of our Services. These Terms of Use apply to all visitors, users, and others who access or otherwise use the Website or Services ("you" or "Users"). If you open an account or purchase or subscribe for any Services on behalf of an entity, then “you” includes you and that entity. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Website or any Services.

Children Under the Age of 13. This Website or any of our Services are not offered or intended for use by users who are younger than13 years of age. By using this Website or other Services, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website. 

Changes to the Terms of Use . We may revise and update these Terms of Use from time to time in our sole discretion, which will be reflected in the “date last modified” at the end of these Terms of Use. If we change these Terms of Use in a material manner, we will update the “Effective Date” at the top of this page. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. If you do not agree to any of the terms in these Terms of Use or to any future terms, do not use or access (or continue to access) the Services.

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

1. ACCESSING THE WEBSITE AND ACCOUNT SECURITY  

We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.

To access the Services, you may be asked to provide certain registration details or other information. As a condition to your use of the Services you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You agree that all such information is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. Without limiting the foregoing, you acknowledge and agree (a) that your account is personal to you and agree not to provide any other person with access to the Website or portions of it using your user name, password, or other security information); (b) to immediately notify the Company of any unauthorized use of your password or account or any other breach of security, and (c) ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. We are not responsible for any unauthorized access to your account, and any ramifications of such access. Accounts may not be shared by more than one person or organization unless express authorization is given by Company.

We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated any provision of these Terms of Use.

The Company does not sell the Services to children, but only to adults who can purchase the Services with a credit card or other permitted payment method. If you are under eighteen (18) years of age, you may use the Services only with the involvement and consent of a parent, legal guardian.

If you open an account to provide the Services to an entity, you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms of Use, and that you agree to these Terms of Use on the entity’s behalf.

 

2. PAYMENT

You agree that we may immediately authorize your credit card (or other approved facility) for payment for any Services ordered by you. You are fully responsible for all activities that occur under your account and agree to be personally liable for all charges incurred thereunder. Your liability for such charges will continue after termination of this Agreement. If you have a question about any  charge on your credit card statement, please contact  us at info@digitizingbyrachel.com. 

3. COMPANY PROPRIETARY RIGHTS  

You acknowledge and agree that the Website and other Services and their entire content, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement of the Website or other Services, and any necessary software used in connection with the Services ("Software")), are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the Services for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:

  1. Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.

  1. You may store files that are automatically cached by your Web browser for display enhancement purposes.

  1. You may print one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.

  2. If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.

You must not:

  1. Modify copies of any materials from this site.

  2. Rent, lease, loan, sell, distribute or create derivative works based on the Website or the Services.

  1. Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.

  2. Reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in any Software or other content comprising or relating to the Services, in whole or in part.

  1. Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website. Any automated scraping, harvesting, indexing, mining, or any other extraction of any content from the Services is expressly prohibited.   

You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for obtaining unauthorized access to the Services. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made., and all rights not expressly granted are reserved by the Company. 

The Company reserves the right to cancel your account without refund if it is determined that you have violated this section of the Terms of Use.

No right, title, or interest in or to the Website or any content on the Website is transferred to you. All rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws

Trademarks. The Blue Hummingbird, LLC name, the Blue Hummingbird, LLC logo, the term Digitizingby Rachel, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.

 

4. USER CONTENT

The Website may now or in the future allow Users to submit, post, display, provide, or otherwise make available content such as text, images, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Website is referred to as "User Content").

You are solely responsible for any User Content that you create, transmit or display while using the Services and you, not the Company, have full responsibility for such User Content, including its legality, reliability, accuracy, and appropriateness. We claim no ownership rights over User Content created by you. The User Content you create remains yours. 

You are under no obligation to submit anything to us. However, in order for us to provide the Website and certain services that you may request, we need your permission to process, display, reproduce and otherwise use User Content you make available to us. By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Services, you expressly grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns a perpetual, irrevocable, transferable, sub-licensable, non-exclusive, worldwide, royalty-free license and right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose. Notwithstanding the foregoing grant, as further identified in the Privacy Policy, content that you upload or make available to the Website for the purpose of processing through or with the services that you may request (such as personal information, addresses, financial information, and similar related data) will only be used by us for the purpose of providing the Website and rendering the Services to you in accordance with our Privacy Policy.

You must have the legal right to the User Content you submit to the Service. You may not upload or post any User Content to the Services that infringes the copyright, trademark or other intellectual property rights of a third party nor may you upload User Content that violates any third party's right of privacy or right of publicity. You may post only User Content that you have permission to post by the owner or by law.

You represent and warrant that:

  1. You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.

  2. All of your User Contributions do and will comply with these Terms of Use.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

 We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website.

You understand that by sharing information on the Website, and requesting information to be sent through the Website, you may be revealing information about yourself that you may include. You understand and acknowledge that you are fully aware and responsible for the impact of sharing such materials, and you agree that we shall not be held responsible, and we shall be released and held harmless by you from any liability or damages arising out of such conduct.

 

5. PROHIBITED USES  

You may use the Website and other Services only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website or other Services:

  1. In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).

  2. For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.

  3. To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.

  4. To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses [or screen names] associated with any of the foregoing).

  5. To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website or expose them to liability.

Additionally, you agree not to:

  1. Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.

  2. Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.

  3. Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.

  4. Use any device, software, or routine that interferes with the proper working of the Website.

  5. Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

  6. Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.

  7. Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.

  8. Otherwise attempt to interfere with the proper working of the Website.

6. MONITORING AND ENFORCEMENT; TERMINATION  

We have the right to:

  1. Remove or refuse to post any User Contributions for any or no reason in our sole discretion.

  2. Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for the Company.

  3. Disclose your identity or other information about you to the extent permitted by applicable law to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.

  4. Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.

  5. Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY/ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY/SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we do not undertake to review material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section. 

7. COPYRIGHT COMPLAINTS

It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA").

If you believe in good faith that any User Content has been copied in a way that constitutes copyright infringement and is accessible via the Services, please contact us at info@digitizingbyrachel.com.

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.

It is our policy to terminate the user accounts of repeat infringers.

International Use: Recognizing the global nature of the Internet, you agree to comply with and are solely responsible for ensuring compliance with all local laws, regulations, and rules in the jurisdiction(s) in which you reside. You agree to comply with all applicable laws regarding the transmission of data exported from the United States or the jurisdiction(s) in which you reside.

 

8. RELIANCE ON INFORMATION POSTED  

The information presented on or through the Website is made available solely for general information or education purposes and are not intended and DO NOT constitute financial, investment, tax, or other professional advice. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents. You agree that we are not responsible for any financial, business, investment, tax, or legal decision that you may make.

This Website may include content provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

 

9. CHANGES TO THE WEBSITE OR SERVICES     

We reserve the right to at any time and from time to time to modify or temporarily discontinue any Services (or any part thereof) with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or temporary discontinuance of the Services. In the event of permanent discontinuance of the Services, the Company’s liability is limited to the paid subscription price, pro-rated to the amount of time remaining on the subscription.

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

 

10. INFORMATION ABOUT YOU AND YOUR VISITS TO THE WEBSITE

All information we collect on this Website is subject to our Privacy Policy. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. 

  

11. LINKS FROM THE WEBSITE  

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

We do not imply that any third-party links used on our website are endorsed by us, and we accept no responsibility for the content or the use of such websites. We do not make any representation regarding the quality, safety, suitability or reliability of any external website or any of the content or materials contained on them. We urge users to take adequate steps to safeguard against such things like viruses, worms and other potentially harmful malware.

When using the third party links on our website, please remember you should review the privacy policies of those websites and the terms and conditions to get a better understanding of what, why and how they collect and use any personally identifiable information.

12. GEOGRAPHIC RESTRICTIONS  

The owner of the Website is based in the United States. We provide this Website and our other Services for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. We may restrict access to the Website or other Services from certain countries due to economic sanctions,  privacy laws, intellectual property concerns, or other reasons, in our sole discretion.

 

13. DISCLAIMER OF WARRANTIES  

Your use of the Website, its content, and any Services or items obtained through the Website is at your own risk. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. 

Without limiting the foregoing, you understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. Any material downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and you are solely responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, for maintaining a means external to our site for any reconstruction of any lost data, and for any damage to your computer system or loss of data that results from the download of any such materials.

 THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

14. LIMITATION ON LIABILITY  

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

IN ADDITION, TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

In no event shall the Company or its subsidiaries or affiliates or any of their respective licensors, service providers, employees, agents, officers, or directors, or contractors’ total liability to you for all damages, losses, and causes of action arising out of or relating to these Terms of Use or your use of any Services (whether in contract, tort, warranty or otherwise) exceed the amount paid by you, if any, for accessing the Services during the twelve (12) months preceding your claim or one hundred dollars ($100), whichever is greater.

 

15. INDEMNIFICATION  

To the extent permitted by applicable law, you agree to indemnify and hold Blue Hummingbird, LLC, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of (i) content you submit, post, transmit or make available through the Service, including without limitation, User Content, (ii) your use or misuse of the Service, (iii) your connection to the Service, (iv) your violation of these Terms of Service, (v) your violation of any applicable law or the rights of another person or entity, (vi) your willful misconduct, or (vii) any other party's access and use of the Services with your unique username, password, or other appropriate security code. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.

 

16. GOVERNING LAW AND JURISDICTION  

All matters relating to the Services and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the District of Columbia, without giving effect to any choice or conflict of law provision or rule (whether of the District of Columbia or any other jurisdiction).


Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the District of Columbia. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

[The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.]

[You agree to submit to the personal jurisdiction of the federal and state courts located in theDistrict of Columbia for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that District of Columbia is the proper forum for any appeals of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable.]

17. ARBITRATION  

 READ THIS SECTION CAREFULLY BECAUSE IT MAY REQUIRE YOU TO ARBITRATE ANY DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE COMPANY. At Company’s sole discretion, it may require You to submit any disputes arising from the use of these Terms of Use or the Website, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying District of Columbia law.

[READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE COMPANY. For any dispute with the Company, you agree to first contact us at info@digitizingbyrachel.com and attempt to resolve the dispute with us informally. In the unlikely event that the Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this agreement, or the breach or alleged breach thereof (collectively, "Claims"), by binding arbitration under the Rules of Arbitration of the American Arbitration Association (“AAA”) applying the laws of the District of Columbia. The arbitration will be conducted in the District of Columbia, unless you and the Company agree otherwise. If you are a School or are using the Services for commercial purposes, each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) the AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from the AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney's fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing the Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.]

18. CLASS ACTION/JURY TRIAL WAIVER

WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND

19. GENERAL TERMS

No waiver of by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and Blue Hummingbird, LLC, regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.

Except for actions for nonpayment or breach of a party's proprietary rights, no action, regardless of form, arising out of or relating to these Terms of Service may be brought by either party more than one (1) year after the cause of action has accrued. 

The section titles in this Agreement are for convenience only and have no legal or contractual effect.

 

20. YOUR COMMENTS AND CONCERNS  


This website is operated by Blue Hummingbird, LLC.

All notices of copyright infringement claims should be sent to the Company, attention copyright agent, to the Company’s address set forth above or via email to info@digitizingbyrachel.com.

All other feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: info@digitizingbyrachel.com. 

 

Last updated: June 22, 2021