LUXEE TERMS OF SERVICE
Welcome to Luxee!
Unscale, LLC d/b/a Luxee (“Luxee,” “we,” “our,” or “us”) makes this website and all mobile applications, software, services, extensions, and application programming interfaces related to this website (collectively, the “Services”) available to you (“Customer”, “you”, or “your”) for your use subject to the terms and conditions in this Terms of Service Agreement (the “Agreement”).
By accessing or using the Services in any way, you agree to be bound by this Agreement. If you do not accept any of the terms of this Agreement and/or you do not meet or comply with its provisions, you may not use the Services. The disclaimers, terms, and conditions in this Agreement are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that we disclose.
IMPORTANT NOTICE: YOUR USE OF THE SERVICES IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 9 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 9 OF THIS AGREEMENT FOR MORE INFORMATION.
- Luxee’s Rights in and to Luxee Materials. Our Services, our systems, our databases, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any technical or functional descriptions, requirements, plans, specifications, or reports, that are provided or used by Luxee or any subcontractor engaged by Luxee in connection with the Services or otherwise comprise or relate to the Services, the designs of each of the foregoing, and any and all intellectual property rights in the foregoing (collectively, the “Luxee Materials”) shall at all times remain the exclusive property of Luxee and its third-party licensors. Any third-party software included in the Services is licensed subject to the additional terms of the applicable third-party license.
- Grant of License. On the condition that you comply with all your obligations under this Agreement, and subject to additional terms of any third-party licenses applicable to third-party software included in the Services, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, right to access and use the Services solely for your own personal purposes. We reserve all rights not otherwise expressly granted by this Agreement. If you do not comply with this Agreement, we reserve the right to revoke any license granted in this Agreement and limit your access to the Services. Any use of the Services that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Services. You are not acquiring any rights in or to the Luxee Materials other than a non-exclusive right to access and use the Services solely in accordance with the term of this Agreement.
- Modification. We may discontinue or alter any aspect of the Services, restrict the time the Services are available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to the Services without prior notice or liability to you. Your only remedy is to discontinue using the Services if you do not want a modification we make to the Services.
- Removal of Access. Your access to the Services is provided on a temporary basis with no guarantee for future availability. You agree that we may immediately suspend or terminate your access to the Services or any part thereof. Cause for such measures include, without limitation: (1) breach or violation of this Agreement or other incorporated agreements or guidelines; (2) discontinuance or material modification to the Services; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.
- Defects and Availability. We use commercially reasonable efforts to maintain the Services, but we are not responsible for any defects or failures associated with the Services, any part thereof, any Feedback you provide, or any damages (such as lost profits or any other consequential or indirect damages) that may result from any such defects or failures. The Services may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that the Services are provided over the Internet, so the quality and availability of the Services may be affected by factors outside of our control. The Services are not intended to be available 100% of the time and we do not make any representations, warranties, or guarantees regarding the reliability or availability of the Services. We do not represent, warrant, or guarantee that the Services will always be completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to the Services being unavailable.
- Restrictions. You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of the Services in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services are based; (3) use the Services or Luxee Content to develop a competing service or product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the Services, servers, or networks connected to the Services or take any other action that interferes with any other person’s use of the Services; (5) decrypt, transfer, create Internet links to the Services, or “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (6) use or merge the Services or any component thereof with other software, databases, or services not provided or approved by us; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to the Services; (8) use the Services for unlawful purposes; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with the Services; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Services for any reason; (11) access or attempt to access any other user’s account; (12) use any Luxee Content made available through the Services in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into the Services any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm the Services, or perform any such actions; (14) introduce into the Services any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter the Services, Luxee Content, or notices on the Services; (16) connect to or access any Luxee computer system or network other than the Services; or (17) impersonate any other person or entity to use or gain access to the Services. We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.
- CONTENT AND MATERIALS ON THE SERVICES
- Luxee Content. The Services may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties (collectively, the “Luxee Content”) that are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that these rights in any Luxee Content are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on the Luxee Content.
- User Content. The Services may allow you to upload, download, store, or transmit user-generated data or information (“User Content”). By submitting User Content to the Services, you grant Luxee a nonexclusive, worldwide, right and license to use, copy, and display User Content to provide the Services. You further grant Luxee a nonexclusive, perpetual, worldwide, royalty-free right and license to use, copy, display, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, transfer, sublicense, create derivative works of, and compilations incorporating, User Content to provide benchmarking, performance improvement, marketing and advertising, and other lawful purposes in connection with the Services. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, USER CONTENT THAT YOU POST OR PROVIDE THROUGH THE SERVICES. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON USER CONTENT, LUXEE CONTENT, OR OTHER CONTENT YOU FIND ON THE SERVICES ARE SOLELY YOUR RESPONSIBILITY. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR USER CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE TRANSMISSION OF ANY OF USER CONTENT THROUGH THE SERVICES.
- User Content Restrictions. You may not upload, post, or transmit any User Content that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of Luxee or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; (4) puts in jeopardy the security of your account, Luxee, or the Services; or (5) promotes or displays any of the following content: (a) pornography; (b) violence; (c) racial intolerance or advocacy against any individual, group, or organization; (d) profanity; (e) hacking or cracking; (f) illicit drugs and drug paraphernalia; (g) sale of alcohol, tobacco, or tobacco-related products; or (h) the sale of weapons or ammunition. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove any and all User Content from the Service. We cannot and do not assume any responsibility for your use or misuse of Luxee Content, User Content, or any other information transmitted, monitored, stored, or received while using the Services. We reserve the right to amend or delete any Luxee Content (along with the right to terminate or restrict use of or access to the Services) that in our sole discretion violates any of the above. By providing User Content via the Services, you further understand and agree that you do so at your own risk and that we are not responsible for the damage or loss of any such User Content. You agree that we are not liable for any legal violation caused by your use or misuse of Luxee Content or other information transmitted, monitored, stored, or received while using the Services.
- Feedback. We welcome your comments, feedback, information, or materials regarding the Services or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
- Ownership of Intellectual Property. Luxee or its licensors exclusively own all right, title and interest in and to the Services, the Luxee Materials, the Luxee Content, and Feedback, including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos and icons displayed or related therein or thereto (collectively, “Luxee IP”). Except as expressly provided herein, you have no right, license, or authorization with respect to any of the Luxee IP. You shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any intellectual property rights granted herein. In the event you are ever deemed to be the owner of any of the Luxee IP, you shall immediately take all necessary steps to evidence, transfer, perfect, vest, or confirm Luxee’s right, title and interest in the Luxee IP. Luxee is not transferring or granting to you any right, title, or interest in or to (or granting you any license or other permissions in or to) any Luxee IP. The sole exception of the foregoing reservation of rights is the limited, non-exclusive, and non-transferable authorization explicitly granted in Section 1.2, and which shall automatically terminate upon expiration or termination of this Agreement. Any unauthorized use of any Luxee IP, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties.
- Unauthorized Use and Information Changes. You must immediately notify us if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
- Storing Credentials. The Services may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access the Services. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to Luxee or the Services resulting from unauthorized access to the Services from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.
- ACCESS THROUGH MOBILE DEVICES
- Mobile Use. Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the Services on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using the Services, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.
- Additional Terms Applicable on the Android Market/Google Play. Luxee and you both agree and acknowledge that neither Google Inc., nor any of its subsidiaries or affiliates (“Google”), are a party to this Agreement, and you will look to Luxee for any recourse, and not Google. You agree to be bound by the then-current Android Market Terms of Services as found on Google’s website: http://www.google.com/mobile/android/market-tos.html) and the Google Play Terms of Services (located at https://play.google.com/about/play-terms.html). You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to our Services. To the extent there is a conflict between any of the terms contained herein and those set forth in either the Android Market Terms of Services or Google Play Terms of Service, the Android Market Terms of Services or Google Play Terms of Services, whichever is applicable, will prevail and govern.
- Additional Terms Applicable to iOS Devices. Luxee and you both agree and acknowledge that neither Apple Inc., nor any of its subsidiaries or affiliates (“Apple”), are a party to this Agreement, and you will look to Luxee for any recourse, and not Apple. You agree to be bound by the then-current Apple Media Services Terms and Conditions as found on Apple’s website: https://www.apple.com/ca/legal/internet-services/itunes/ca/terms.html. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to our Services. To the extent there is a conflict between any of the terms contained herein and those set forth in the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions will prevail and govern.
- PRODUCT ORDERS
- General. This Section 5 of the Agreement governs your purchase of third party products (“Products”) through the Services. Luxee does not sell, offer to sell or solicit sales of Products: our Services enable you to search online for Products and other products available for sale by licensed retailers that use Luxee’s e-commerce service (“Partners”). When you search for a Product, the Services show you its availability, price and other information based on your location and information provided by the Partners that service your location; if you prefer, you may sort and filter results based on search criteria. Our Services may be limited or not available at all in some places due to local law or other restrictions.
- Orders. All orders for Products (each, an “Order”) placed by you are subject to acceptance by our Partners. All Orders shall, at a minimum, identify the Products purchased, quantities, price, and taxes. Once placed by you, Luxee will transmit your Order to our Partner, who will determine the date and time for shipment. We and our Partners reserve the right to cancel or refuse any Order for any reason at any time prior to shipment, including after an Order has been submitted, whether or not the Order has been confirmed. Our Partner may attempt to contact you if all or a portion of your Order is cancelled, or if additional information is needed to complete and accept your Order. Products may be made available for reservation and pre-order via our Services. If you place a reservation and pre-order for a Product that is not yet available for sale, our Partner will charge your credit card for the cost of the Product plus any applicable charges for taxes and shipping, and will ship you the Product once it is available.
- Prices. The prices of the Products are those prices specified on the Services and in the Order by the Luxee Partners. Pricing for undelivered Products may be increased in the event of an increase in our Partner’s cost, change in market conditions or any other causes beyond reasonable control. All Products offered via our Services are subject to availability. Prices for the Products are subject to change without notice at any time.
- Payment. To purchase a Product, you will be required to provide our Partner information regarding your credit card or other payment instrument. You represent and warrant to Luxee that such information is true and that you are authorized to use the payment instrument. You hereby authorize our Partner to bill your payment instrument in accordance with the Product you are purchasing. If any bank or other financial institution refuses to honor any payment of yours, our Partner may charge you a fee up to the maximum amount permitted under applicable law. By providing a credit card or other payment method accepted by our Partner (“Payment Method”), you may authorize our Partners to keep such Payment Method on file and charge you the fees, charges, or other amounts related to your Order. If you want to use a different Payment Method than the one you signed up to use during registration, or if there is a change in your credit card validity or expiration date, you may edit your Payment Method information by logging in to your account and viewing your account details or contacting us at https://luxeewellness.com. If your Payment Method expires and you do not edit your Payment Method information or cancel your account, you authorize our Partners to charge you for any Product purchases, and you will remain responsible for any uncollected amounts.
- Billing Details. Please visit https://luxeewellness.com or email us at firstname.lastname@example.org if you would like to receive more detailed account history or billing information, if you believe there are any billing errors, or if you have any other questions related to your account history or bill. You must notify us at email@example.com or change your information via your online account immediately in the event of any change in your name, billing address, service address, email address, telephone number, credit or debit card, or other account information. You can dispute your account history or bill by contacting us at firstname.lastname@example.org. Unless otherwise provided by law, you must still pay any disputed charges until the dispute is resolved.
- Taxes. As applicable, our Partners shall include estimated shipping costs, duties, and taxes including federal, state and local sales, excise and value added, goods and services taxes, and any other taxes in your Order. You are responsible for, and agree to pay, all taxes, fees, and surcharges set by any governmental agency or taxing authority. You agree to indemnify and hold Luxee and our Partners harmless for any liability for tax in connection with the sale or a Product.
- Delivery and Title. Luxee does not guarantee shipping or delivery times and is not liable for the actions, products, or content of Partners. Luxee is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Luxee, nor shall the carrier be deemed an agent of Luxee. A delayed delivery of any part of an Order does not entitle you to cancel other deliveries.
- Returns; Exchanges; and Refunds. Only Products originally shipped from our Partners will be considered for return, refund or exchange. To return a Product or request a refund or exchange, contact the Luxee Partner whom you purchased the Product through directly. Luxee does not offer returns or exchanges for any Product.
- Non-Cancelable and Non-Returnable Items. Luxee’s Partners may designate certain Products as non-cancelable, non- returnable (“NC/NR”) and the sale of such Products shall be final. Products listed as NC/NR status are identified on the Services for web orders and via the Order acknowledgement for all other orders.
- Limited Warranty. SAVE AS EXPRESSLY PROVIDED BY OUR PARTNERS IN CONNECTION WITH THEIR PRODUCTS, LUXEE MAKES NO WARRANTIES REGARDING THE PRODUCTS AND ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, LUXEE MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
- Limitation of Liabilities. LUXEE SHALL NOT BE LIABLE FOR LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, LOSS OF DATA, INJURY TO REPUTATION, PUNITIVE DAMAGES, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE RELATED TO A PRODUCT PURCHASE. YOUR RECOVERY FROM LUXEE FOR ANY CLAIM SHALL NOT EXCEED THE LESSER OF THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS OR $100.00 USD IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. YOUWILL INDEMNIFY, DEFEND AND HOLD LUXEE HARMLESS FROM ANY CLAIMS BASED ON (A) YOUR USE OF THE PRODUCT AND COMPLIANCE WITH THE PRODUCT DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (B) MODIFICATION OF ANY PRODUCT, OR (C) USE IN COMBINATION WITH OTHER PRODUCTS.
- Use of Products. (1) You acknowledge that such use of the Product is at your sole risk; (2) you agree that Luxee is not liable, in whole or in part, for any claim or damage arising from your use of the Products; and (3) you agree to indemnify, defend and hold Luxee harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use of the Products.
- Force Majeure. Luxee is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Luxee’s or our Partner’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Luxee from performance and barring remedies for non-performance. In an event of force majeure condition, Luxee’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Luxee to any liability or penalty. Luxee may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to you.
- Age of Majority. Products may only be purchased by individuals who can form legally binding contracts under applicable law. All persons accessing the Services must be at least 18 years of age.
- Systems Representations. You represent that you shall, at all times during the term, procure, set up, maintain, and operate in good repair, at your sole cost and expense, all equipment, resources, technology, or systems, including computer hardware and equipment, any Internet access, third party software, and telecommunications services, necessary for you to access and use the Services (collectively, the “Customer Systems”). You further represent that in connection with your Customer Systems, you shall employ all physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to securely administer the distribution and use of the Services, and protect against any unauthorized access to or use of the Services.
- Feedback Representations. In the event you provide any Feedback via the Services, you hereby make the following additional representations and warranties to us: (1) you are owner of such Feedback or otherwise have the right to grant us the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.
- DISCLAIMERS OF WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.
WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON THE SERVICES WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED, THAT THE SERVICES AND ANY CONTENT OR INFORMATION FOUND ON THE SERVICES WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THE SERVICES OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- INDEMNITY; LIMITATION OF LIABILITY
- Indemnity. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS LUXEE, OUR OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, PARTNERS, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, DEMANDS, OR EXPENSES, INCLUDING ATTORNEY’S FEES AND COSTS AND EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (A) YOUR USE OF OUR SERVICES, (B) YOUR VIOLATION OF THIS AGREEMENT, (C) ANY USER CONTENT YOU PROVIDE THROUGH OUR SERVICES, (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY, AND (E) YOUR NEGLIGENCE OR WILLFUL MISCONDUCT.
- Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL LUXEE BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE OUR SERVICES. IF YOU ARE DISSATISFIED WITH OUR SERVICES, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING OUR SERVICES. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR THE USE OF ANY OR ALL PARTS OF OUR SERVICES IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00).
- For California Residents. IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST LUXEE.
- DISPUTE RESOLUTION AND GOVERNING LAW, JURISDICTION AND COSTS
- Governing Law. This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Missouri without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in Kansas City, Missouri, and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Jackson County, Missouri. You irrevocably submit and consent to the personal jurisdiction of such courts.
- Dispute Resolution. To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to the Services or Luxee Materials, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and Luxee agree to resolve such Dispute through confidential binding arbitration as set forth below.
- Binding Arbitration. If you and Luxee are unable to resolve a Dispute through informal negotiations, either you or Luxee may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and Luxee may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- Waiver of Rights. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under Article 13 of the State Bar Act to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
- Term. This Agreement is effective upon your acceptance and will continue in full force until terminated by you or us. You may terminate this Agreement at any time by immediately discontinuing all access to the Services. Termination or cancellation of this Agreement will not affect any right or relief to which we may be entitled at law or in equity. We reserve the right to terminate this Agreement at any time and for any reason without prior notice to you. Further, you agree that we will not be liable to you or any third-party for any termination or suspension of your access to the Services or any part thereof.
- Independent Contractors. You understand and expressly agree that you and Luxee are independent contractors and not agents or employees of the other party. Neither you nor Luxee has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
- Consent to Do Business Electronically. We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor Luxee will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.
- Equitable Relief. You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.
- Entire Agreement. This Agreement and any hyperlinked policies and procedures constitute the entire agreement between you and Luxee with respect to the subject matter hereof and supersede all prior agreements, both oral and written, with respect to the subject matter hereof. We may revise and update this Agreement from time to time, and will post the updated Agreement to the portal. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Services will constitute your agreement to any new provisions within the revised Agreement.
- Waiver; Severability. Our failure to enforce any provision of this Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement.
- Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.
- Survival. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
- Contact Us. With questions, email email@example.com or submit your question through our support services at https://liveluxee.com.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of [DESCRIBE COMPANY’S GOODS/SERVICE OFFERINGS – THIS SHOULD BE BROAD AND GENERAL TO ENCOMPASS AND TYPE OF MESSAGE YOU MAY SEND. MESSAGES OUTSIDE OF THIS SCOPE MAY NOT BE ALLOWED UNDER THE TCPA].
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in kansas city, KS before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Unscale LLC’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.