BAMBOO ROSE SERVICES AGREEMENT
Please read this agreement carefully.
1. ACCEPTANCE OF TERMS
1.1 WELCOME TO BAMBOO ROSE’S SERVICE. This Bamboo Rose Services Agreement (this “Agreement”) is between Bamboo Rose LLC, a limited liability company organized and existing under the laws of the State of Delaware with its corporate offices at 17 Rogers Street, Gloucester, MA 01930 (“Bamboo Rose”) and any business entity (hereinafter referred to as “you” or “Member”) which applies to subscribe for or order a membership service (“Membership”) and/or any related Value Added Services (collectively, the “Services”) offered by Bamboo Rose through the web site identified by the uniform resource locator www.bamboorose.com (the “Site”). BY CLICKING “I AGREE” TO THE TERMS AND CONDITIONS AND/OR MAKING ANY PAYMENT FOR ANY SERVICES WHETHER ONLINE VIA THE SITE OR OFFLINE OR VIA OUR AUTHORIZED SALES AGENT, YOU INDICATE YOUR AGREEMENT TO BE BOUND BY THIS AGREEMENT.
1.2 This Agreement applies to all Services and governs all memberships or service orders for the Services (each referred to as a “Service Order”). In case of any conflict between the terms of this Agreement and those of a Service Order, the terms of the Service Order shall prevail.
1.3 If a Service Order includes the Membership, this Agreement will take effect when you have paid the total service fees in full under the Service Order.
1.4 Bamboo Rose may amend this Agreement at any time by posting the amended and restated Agreement on the Site. The amended and restated Agreement shall be effective immediately upon posting. After posting by Bamboo Rose of the amended and restated Agreement, your continued use of the Services shall be deemed to be acceptance of the amended terms. This Agreement may not otherwise be modified except in writing by an authorized officer of Bamboo Rose.
2.1 The Membership has the following core features (which may be modified or suspended for scheduled or unscheduled maintenance purposes, from time to time at the sole discretion of Bamboo Rose upon notification):
(a) Create/Upload Products
(b) Create or View Wishlists
(c) Create or Shop Showrooms
(d) Invite Buyers / Suppliers
(e) Manage Sample Orders / Order Samples
(f) Manage Company Profile
2.2 Bamboo Rose reserves the right to change, upgrade, modify, limit or suspend the Services or any of its related functionalities or applications at any time temporarily or permanently without prior notice. Bamboo Rose further reserves the right to introduce new features, functionalities or applications to the Services or to future versions of the Services. All new features, functionalities, applications, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise stated by Bamboo Rose.
2.3 The Services are offered only to business or corporate entities (e.g. corporations, limited liability companies, partnership, sole proprietors, etc.) that are capable of having a business name and business address.
2.4 Member shall keep confidentiality and proper custody of its Member ID and Password of the account assigned to Member in connection with its use of the Services (the “Account”). A set of Member ID and Password is unique to a single Account. Member agrees that it shall be solely responsible for any use of its Account (including without limitation publishing of any information and materials, accepting any online rules and agreements, subscribing for or purchasing any service or product online) and any use of its Account will be deemed by Bamboo Rose as having been fully authorized by such Member. Member shall not share with, assign to or permit a third party to use its Account, Member ID or Password (collectively, “multiple use”). Member acknowledges that multiple use of its Account with any third party may cause irreparable harm to Bamboo Rose or other users of the Site, and agrees to indemnify Bamboo Rose and its affiliates against any loss or damages suffered by Bamboo Rose and its affiliates as a result of multiple use of its Account. If Member fails to take necessary measures to maintain the security of the Account or to prevent the risks of unauthorized access, Bamboo Rose shall have the right to suspend the provision of the Services or terminate this Agreement without any refund or other compensation with regard to Member.
2.5 Bamboo Rose shall have the right, but shall not be obliged, to monitor or examine any information and materials including any website link that Member publishes or submits to Bamboo Rose for publishing on the Site (the “Member Materials”). Publishing of Member Materials shall by no means mean that Bamboo Rose has endorsed or otherwise certify the contents of such Member Materials. Member shall be solely responsible for the contents of its Member Materials.
2.6 If any activities of Member on the Site or any Member Materials (including material accessible through a link in the Member Materials), in Bamboo Rose’s reasonable opinion, are in violation of any applicable laws and regulations or a third party’s legitimate rights (including without limitation intellectual property rights), the terms of this Agreement or the Website Terms or may otherwise subject Bamboo Rose or its affiliates to liability, Bamboo Rose may, at its option, delete, remove or modify such Member Material or any part thereof and/or limit or suspend the provision of the Services or any part thereof (including without limitation limiting the number or types of product listings that the Member can publish on the Site for such duration as Bamboo Rose may in its sole discretion consider appropriate).
2.7 Bamboo Rose reserves the right to cooperate fully with governmental authorities, private investigators and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Further, Bamboo Rose may disclose Member’s identity and contact information, if requested by a government or law enforcement body, an injured third party, or as a result of a subpoena or other legal action. Bamboo Rose shall not be liable for damages or results thereof, and Member agrees not to bring any action or claim against Bamboo Rose for such disclosure. In connection with any of the foregoing, Bamboo Rose may suspend or terminate Member’s Account as Bamboo Rose deems appropriate at its sole discretion. Bamboo Rose shall have the right to publish the records relating to handling of complaints against Member, breaches by Member or termination of this Agreement on the Site.
2.8 Member hereby grants to Bamboo Rose a non-exclusive, royalty-free, sub-licensable, worldwide, transferable license to (a) display, publish or transmit all or part of the Member Materials, or any adaptations thereof, (b) link, copy, store, adapt, translate or make other reasonable use of all or part of the Member Materials, or any adaptations thereof, necessary to provide the Services in any medium known now and in the future.
2.9 Bamboo Rose owns the aggregated and statistical data derived from the operation of the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Bamboo Rose from utilizing the Aggregated Data, provided that Bamboo Rose’s use of the Aggregated Data will not reveal the identity of any specific individual or company. In no event does the Aggregated Data include any personally identifiable information.
3. SUBSCRIPTION AND SERVICE
3.1 Access to Bamboo Rose services requires a valid membership. Membership is offered through a monthly or yearly subscriptions. You may not use the Bamboo Rose Marketplace without a valid subscription. You subscription shall be restricted to the number of named users licensed and shall utilize up to one (1) TB of storage space.
3.2 This Agreement will expire on the day when subscription periods expire unless terminated earlier according to the terms of this Agreement.
4. FEES AND PAYMENT
4.1 Monthly Subscription
Every month we’ll bill your credit card the fee stated at the time of purchase plus applicable tax. As soon as you’ve successfully completed this sign-up process and your payment is confirmed, your membership will begin.
After that, we’ll renew your monthly subscription automatically, unless you cancel. The price is subject to change, but we will always notify you beforehand.
We’d hate to see you go, but if you ever need to cancel, just email customer support.
4.2 Yearly Subscription
For yearly subscription, we’ll bill your credit card the fee stated at the time of purchase. As soon as you’ve successfully completed this sign-up process and your payment is confirmed, your membership will begin.
The price is valid for a full 12 months. After that, we’ll renew your subscription automatically unless you cancel. The price is subject to change, but we will always notify you beforehand.
We’d hate to see you go, but if you ever need to cancel, just email customer support.
5. MEMBER RESPONSIBILITIES
5.1 Member agrees to provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for Bamboo Rose’s provision of the Services. If Member’s failure to do so results in delay in the provision of any Service, Bamboo Rose shall not be obliged to extend the relevant service period nor shall be liable for any loss or damages arising from such delay.
5.2 Member represents and warrants to Bamboo Rose that:
(a) it has the full power and authority to enter into this Agreement, to grant the license and authorization and to perform its obligations hereunder;
(b) it will carry on its activities on the Site in compliance with any applicable laws and regulations;
(c) it will not use the Services to defraud users of the Site or engage in other unlawful activities (including without limitation spamming, allowing another to use your business registration information to subscribe for a Bamboo Rose service);
(d) it has the legitimate right and authorization to sell, distribute or export all products or services it posts on the Site or otherwise referred to in its Member Materials;
(e) all contents of its Member Materials are true, lawful and accurate, and are not false, misleading or deceptive;
(f) it will not impersonate any person or entity, or misrepresent itself or its affiliation with any person or entity;
(g) it will not post any product or service listing in breach of the Site’s Product Listing Policy, and its Member Materials or any product or service referred to in its Member Materials do not infringe or otherwise abet or encourage the infringement or violation of any third party’s copyright, patent, trademarks, trade secret or other proprietary right, rights of publicity and privacy or other legitimate rights;
(h) its Member Materials do not contain information that is defamatory, libelous, threatening or harassing, obscene or sexually explicit or harmful to minors;
(i) its Member Materials do not contain information that is discriminatory or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
5.3 Member agrees and undertakes that it will not:
(a) copy, reproduce, exploit or expropriate Bamboo Rose’s various proprietary directories, databases and listings;
(b) use or distribute any computer viruses or other destructive devices and codes that may harm, interfere with, intercept or expropriate any software or hardware system, data or personal information;
(c) gain or attempt to gain authorized access to the computer systems or networks used by Bamboo Rose and/or any user of the Site or engage in any other activities that may harm the integrity of such computer systems or networks;
(d) take any action which may undermine the integrity of Bamboo Rose’s feedback system, such as leaving positive feedback for himself using secondary Member IDs or through third parties or by leaving unsubstantiated negative feedback for another Member.
(e) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
5.4 With regards to information about or posted on behalf of any business referee, Member represents and warrants that it has obtained all necessary consents, approvals and waivers from its business partners and associates (a) to act as its business referee; (b) to post and publish their contact details and information, reference letters and comments on their behalf; and (c) that third parties may contact such business referees to support claims or statements made about Member.
5.5 Member shall conduct all activities on the Site in accordance with all applicable laws and regulations and commonly accepted commercial practices. Member shall also conduct its business affairs with integrity and in an ethical manner.
5.6 Member acknowledges and agrees that Bamboo Rose shall not be responsible, and shall have no liability to it or anyone else for any content of the Member Materials or materials posted by third parties.
5.7 Member shall be solely liable for its business name submitted. In case Bamboo Rose receives any complaint or claim against Member in respect of its business name, Bamboo Rose shall have the right to suspend or terminate Member’s Account immediately.5.8 Member agrees to indemnify Bamboo Rose and its affiliates and their employees, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, from its Member Materials or use of the Services or from Member’s breach of this Agreement or the Website Terms, (including claims arising from Member’s business name) and from claims of third parties. Bamboo Rose reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Member, in which event Member shall cooperate with Bamboo Rose in asserting any available defenses.
6. LIMITATION OF LIABILITY
6.1 Bamboo Rose represents and warrants that it will provide the Services with reasonable care and skill.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULL EXTENT PERMITTED BY LAW THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND BAMBOO ROSE HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED. IF BAMBOO ROSE BREACHES THE WARRANTY HEREUNDER, BAMBOO ROSE SHALL RE-PERFORM THE AFFECTED PART OF THE SERVICES. TO THE FULL EXTENT PERMITTED BY LAW, THE REMEDY UNDER THIS CLAUSE 6.1 SHALL BE MEMBER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF BAMBOO ROSE’S WARRANTIES UNDER THIS AGREEMENT.6.2 TO THE FULL EXTENT PERMITTED BY LAW, BAMBOO ROSE SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF DATA, WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, ARISING FROM THE USE OR INABILITY TO USE OF THE SERVICES.
6.3 Member agrees not to hold Bamboo Rose responsible for third parties’ content, actions or inactions. If Member uses third parties’ services, software or products in connection with the Services, Member further agrees not to hold Bamboo Rose responsible for such third parties’ services, software or products.
6.4 Any material downloaded or otherwise obtained through the use of the Services is done at Member’s sole discretion and risk and Member is solely responsible for any damage to its computer system or loss of data that may result from the download of any such material. No advice or information, whether oral or written, obtained by Member from Bamboo Rose or through or from the Services shall create any warranty not expressly stated in this Agreement.
6.5 Notwithstanding any of the foregoing provisions, the aggregate liability of Bamboo Rose and its affiliates and their employees, agents and representatives or anyone acting on their behalf, with respect to Member for all claims arising from the use of the Services or the Site shall not exceed the amount of the services fees that Member pays to Bamboo Rose during the current service period for the Membership. The preceding sentence shall not preclude the requirement by Member to prove actual damages. All claims arising from the use of the Services must be filed within one (1) year from the date the cause of action arose.
7.1 If any of the following circumstances occurs, Bamboo Rose shall have the right to terminate the Agreement immediately upon written notice to Member and to forfeit the services fees for any unused Services without liability:
(1) Bamboo Rose has reasonable grounds to believe that Member uses the Services for any fraudulent or other unlawful purpose;
(2) Upon complaint or claim from any third party, Bamboo Rose has reasonable grounds to believe that Member has willfully or materially breached its contract with the third party complainant, including without limitation where Member has failed to deliver the products ordered by the complainant after receipt of the purchase price, or where Member has failed to make payment to the complainant after receipt of the products delivered by the complainant, or where Member has delivered the products that fail to materially meet the terms and descriptions outlined in Member Materials;
(3) Bamboo Rose has reasonable grounds to believe that Member is involved in the production or sale of any inferior goods or any goods which infringe any intellectual property rights or other legitimate rights of any third party;
(4) Member assigns or transfers part or all of its rights and obligations under this Agreement to a third party (including multiple use of its Account) without Bamboo Rose’s prior written consent;
(5) Member sells any business information related to buyers and/or their buy leads/enquiries which are obtained by Member as a result of use of the Services without Bamboo Rose’s prior written consent;(6) Member is involved in any scheme or activities to undermine the integrity or normal operation of the computer systems or networks of the Site (including gaining unauthorized access to the systems of the Site, stealing, modifying or deleting the information of other members of the Site without authorization);
(7) Member is in breach of any of its representations, warranties and undertakings in clause 5;
(8) Member has failed to rectify any breach of this Agreement other than those under para (1)-(7) hereof within 10 working days of being notified by Bamboo Rose of such breach;
(9) Member has committed breaches other than those under para (1)-(7) hereof for 3 or more times;
(10) Member ceases to conduct its operations, is insolvent or wound up, or becomes the subject of any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors or similar proceeding.7.2 If the Agreement is terminated under clause 7.1 and other provisions of this Agreement, Bamboo Rose shall have the right to refuse any and all current or future use by Member of the Services or any other services that may be provided by Bamboo Rose.7.3 In the event that Bamboo Rose does not receive full payment of subscription fees within ten (10) days of automatic renewal of subscription for the Service, such Member’s subscription shall be terminated immediately without further notification from Bamboo Rose. Access to the Membership shall be denied upon such termination.
8. FORCE MAJEURE
8.1 Under no circumstances shall Bamboo Rose be held liable for any delay or failure or disruption of the Services resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, acts of God, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, terrorism, war, governmental actions, orders of domestic or foreign courts or tribunals.
9. GENERAL PROVISIONS
9.1 This Agreement constitutes the entire agreement between Member and Bamboo Rose with respect to and governs the use of the Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
9.2 This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
9.3 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
9.4 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
9.5 Any failure by Bamboo Rose to exercise any of its rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
9.6 Marketing. Bamboo Rose may, from time to time, publicly announce and list Member in Bamboo Rose’s customer listings. Bamboo Rose may, from time to time, contact you directly to market other Products or Services.
9.7 Bamboo Rose shall have the right to assign this Agreement (including all of its rights, titles, benefits, interests, and obligations and duties in this Agreement) to any person or entity (including any affiliates of Bamboo Rose). Member may not assign, in whole or part, this Agreement to any person or entity.