Effective Date: November 20, 2022
Welcome to Lumi!
BY ACCESSING OR USING OUR SERVICE OR WEB PORTAL, YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS.
If you are accepting or agreeing to the Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PORTAL OR SERVICES.
1. ABOUT THE TERMS
1.1. Key Terms
- “Portal” refers to any web-based application owned or operated by Lumi, through which access to the Services is available. References to the “Portal” include any and all features, functionality, tools and content available on or through each such application.
- “Portal Content” refers to any and all videos, text, photos, information and other content included, provided or made available on or through the Portal, including all User Content except Your Content.
- “Lumi,” “we,” or “us” refer to StoreyLine Inc. dba Lumi and our officers, directors, employees, contractors and agents.
- “Products” refers to the third party goods and experiences provided by Lumi.
- “Recipient” refers to a User accessing the Services via the portal to receive a Product from a Sender.
- “Sender” refers to a User accessing the Services via the portal to send a Product to a Recipient.
- “Services” refers to the Product gifting services provided by Lumi and its service providers, and any and all related services and promotions.
- “User Content” refers to text, photos, information and other content recorded, stored, shared or otherwise made available or caused to be made available by Users on or through the Portal.
- “Users” means any and all persons that access or use the Portal, including you. Users may be either a Sender or Receiver depending on how the Services are used. References to “access” and/or “use” of the portal (and any variations thereof) include the acts of accessing or browsing the Portal, and accessing or using the Services.
- “Your Content” refers to User Content that is provided or made available or caused to be made available by you.
1.2. Portal Rules and Supplemental Terms
- INFORMATION ABOUT THE FUNCTIONAL LIMITATIONS OF THE PORTAL AND/OR THE SERVICES;
- YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
- LIMITATIONS OF OUR LIABILITY TO YOU; AND
- A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOUR ACCESS TO AND USE OF THE PORTAL AND SERVICES IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
1.3. Amendment of Terms
Lumi reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the portalafter we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Portal.
No other modification, amendment, supplement of or to the Terms will be binding on Lumi unless it is in writing and signed by an authorized representative of Lumi.
2. ABOUT THE PORTAL
2.1. License to Use
Subject to your compliance with the Terms, Lumi grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the portal and Services, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the portal as provided by Lumi, in the manner permitted by the Terms.
YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:
- LUMI DOES NOT AND CANNOT GUARANTEE THAT THE PORTAL WILL BE CONTINUOUS OR ERROR-FREE.
- IF YOUR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR PORTAL IS SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE PORTAL.
- YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE PORTAL AND YOUR CONTENT. ABUSE OF THE SERVICES MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES.
2.3. Modifications and Updates to the Portal and Services
Lumi reserves the right, in its sole discretion, to modify or discontinue offering the Portal and/or Services, in whole or in part, including any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of Your/ the User Content at our sole discretion at any time without prior notice to you.
We may from time to time develop and provide updates for the Portal, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, “Updates”). Updates may also modify or delete features, functionality, tools or content in their entirety.
You agree that Lumi has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
3.1. Account Registration
While certain Portal Content and Services may be publicly available, you must register for a user account before you are able to use certain of the Services. You may register to create an account directly via the Portal.
3.2. Account Set-Up
Your account and account profile page will be created based upon the information you provide to us. You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date. Please note that the name and contact information that you submit when you register will be shared in accordance with your selections in your account settings when you share Your Content.
When you create your account, you will be asked to provide and verify your email address. You agree to immediately notify Lumi of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. Lumi cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3.3. Account Suspension and Cancellation
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to (i) limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our Portal and Services at any time for any reason, and (ii) screen or delay the posting or delivery of Your Content.
Lumi reserves the right to suspend or terminate your account or your access to the portal if you create more than one account, or if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, outdated, deceptive or fraudulent.
We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. We also reserve the right to cancel accounts of Users who fail to comply with the Terms, including the terms and conditions regarding User conduct, as set forth in the “User Conduct Guidelines” section below and elsewhere in the Terms.
If your account is deactivated or cancelled, Lumi will have the right, but not the obligation to delete Your Content.
If Lumi has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Lumi’s reasonable satisfaction.
4. TERMS OF SALE
Products may be initially selected by Sender via the Portal. Recipient will have the option of accepting the originally selected Product, or an alternative Product of equal or lesser value if Sender enables this option.
Lumi may allow third parties to offer goods or services in the Portal. Lumi undertakes to be as accurate as possible with all information regarding the goods and services, including product descriptions, pricing, and images. However, Lumi does not guarantee the accuracy or reliability of any product information, and you acknowledge and agree that you purchase such products at your own risk.
As the Sender, you acknowledge that the amount billed may vary due to the particular Products in each delivery or changes in applicable taxes, tax estimates or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice. The shipment of Products to your designated Recipient after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your order in advance of such shipment.
4.3. Payment/Credit Cards
4.4. Orders; Refunds
All of our Products are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order, to discontinue offering certain Products and to substitute Products with input from Senders or Recipients. Orders placed by Senders may be changed or cancelled for an applicable refund until the time of shipment. Unless Lumi agrees or states otherwise in writing, all other fees and charges are nonrefundable. Under no circumstances shall Recipients be entitled to refunds or credits for any unconfirmed or cancelled orders.
4.5. Shipping; Deliveries
As a Sender, you agree to pay domestic U.S and international shipping and handling charges. All Products should be shipped to you or the Recipients personally and are not for resale or export.
Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery on behalf of the intended Recipient.
5. USER CONDUCT GUIDELINES
Any time you access or use the Portal, you are required to comply with our User conduct guidelines, as set forth below. You agree that you will access and use the Portal and Services for your personal use only.
You are not authorized to access or use the Portal:
- to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions;
- to “stalk” or harass any other User;
- to distribute unsolicited commercial or bulk electronic communications (or, “spam”), chain letters or “pyramid” schemes;
- for political campaigning, recruiting votes or soliciting donations or other support for legislative or other initiatives;
- to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- if you are not able to form legally binding contracts (for example, if you are under 18);
- if you are a person barred from receiving services under the laws of the United States or other applicable jurisdiction; or
- for any other purposes that are not expressly permitted by the Terms.
Further, you may not:
- access, copy, distribute, share, publish, use or store, or prepare derivative works from any Portal Content that belongs to Lumi, another User or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
- share or transfer your account to another party without our consent;
- circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the portal if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Portal;
- access, search, collect information from, or otherwise interact with the portalby “scraping,” “crawling” or “spidering” the Portal, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by Lumi, unless you have been specifically authorized to do so in a separate agreement with Lumi;
- use, display, mirror or frame the Portal, or any feature, functionality, tool or content of the Portal, Lumi’s name, any Lumi trademark, logo or other proprietary information, without Lumi’s express written consent;
- interfere with, disrupt, damage or compromise the portal or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the portalor otherwise imposing an unreasonable or disproportionately large load on the Portal;
- access, tamper with or use non-public areas of any of the Portal, Lumi’s computer systems, or the technical delivery systems of Lumi’s providers;
- probe, scan, or test the vulnerability of any system or network of Lumi or its providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Lumi or any of Lumi’s providers or any other third party to protect the Portal;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the portal to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Portal;
- otherwise abuse the portal or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
5.1. Responsibility for User Content
Ultimately, all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the User who originated such content. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any User Content or endorse any opinions expressed in such User Content. You understand that by using the Portal, you may be exposed to User Content that is offensive, harmful, inaccurate, misleading, fraudulent or otherwise inappropriate. Under no circumstances will Lumi be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of any User Content.
We may, but are not required to monitor or control the User Content captured, recorded, uploaded, streamed, shared or stored on or through the Portal, and we cannot take responsibility for such User Content. Any use or reliance on any User Content is at your own risk.
5.2. Reporting Misconduct
If you feel that another User has violated the Terms, abused the portalor otherwise acted inappropriately, you may report the User to Lumi at firstname.lastname@example.org. Lumi reserves the right, but assumes no obligation, to investigate and take appropriate action in response to such reports. Regardless of its action or inaction, in no event will Lumi be liable for the acts or omissions of any User or any third party.
If you are a California resident, you may also report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. See the “California Residents” subsection below for the full information required under California Civil Code §1789.3.
Lumi reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.
Without limiting the foregoing, you acknowledge that Lumi has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Portal or Services by any User, to access, review, preserve and disclose any User Content, or to remove or disable access to any User Content, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Lumi, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Lumi, its Users or members of the public, and (vi) for the purpose of operating and improving the portaland Services (including for customer support purposes).
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1. The Portal
The Portal, Products and Services, including all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Portal, Products and Services, and all intellectual property rights therein are the exclusive property of Lumi and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Portal or Services.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Lumi (the “Lumi Marks”) are the property of Lumi, and that you are not permitted to use the Lumi Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Portal or Services in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Lumi or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Lumi’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Lumi or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
6.2. Your Content
By uploading, sharing or storing Your Content, you hereby grant Lumi a worldwide, non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, post, broadcast, publicly perform, publish and display Your Content in any and all media as necessary to provide the Services to you, including, customer support services, and otherwise operate the Portal, including for product development and de-bugging purposes.
We may modify or adapt Your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to Your Content as are necessary to conform and adapt that content to any requirements or limitations of any networks, devices, services or media. You further grant us the right to use, copy, distribute, post, broadcast, publicly perform, publish and display your name and other information in connection with Your Content as described herein or elsewhere on the Portal, subject to any applicable data protection laws.
Lumi does not claim any ownership rights in Your Content and nothing in the Terms will be deemed to restrict any rights that you may have to use and exploit any such content, subject only to the licenses granted to Lumi under these Terms.
You acknowledge and agree that you are solely responsible for Your Content, and for any consequences thereof, including the use of your Content by other Users.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to Your Content, and that neither Your Content, nor Lumi’s use of Your Content (or any portion thereof) on or through the Portal or in connection with the Services will infringe, misappropriate or violate the rights of any person or entity, including patent, copyright, trademark, trade secret, moral rights, industrial rights, database rights or other proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Portal (“Feedback”). You may submit Feedback by e-mailing us, at email@example.com. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Lumi. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Lumi or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Lumi all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Lumi’s rights in such improvements, enhancements and modifications.
7. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
7.1. Warranties by Users
You represent and warrant to Lumi that:
- you have the power and authority to accept and agree to the Terms;
- you own or control all of the rights necessary to grant the rights and licenses granted herein;
- you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with Your Content or otherwise in connection with your access to or use of the portaland Services;
- the exercise by Lumi of the rights granted by you hereunder will not cause Lumi to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and
- all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PORTAL, PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, LUMI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PORTAL, PRODUCTS OR SERVICES, OR THAT USE OF THE PORTAL OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY PORTAL CONTENT.
7.3. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE PORTAL IS AND REMAINS WITH YOU.
- WITHOUT LIMITING THE FOREGOING, LUMI DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE PORTAL, (II) THE ACTS OR OMISSIONS OF ANY OTHER USER OR ANY OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PORTAL, AND (III) ANY PORTAL CONTENT ACCESSED, VIEWED OR DOWNLOADED IN CONNECTION WITH THE USE OF THE PORTAL.
- YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING AND USING THE PORTAL, SUBMITTING AND TRANSMITTING YOUR CONTENT, COMMUNICATING OR INTERACTING WITH OTHER USERS AND ACCESSING, VIEWING OR DOWNLOADING THE USER CONTENT OF OTHER USERS ARE DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE LUMI AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- IN NO EVENT WILL LUMI BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LUMI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, LUMI’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
7.4. Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LUMI AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold Lumi its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Portal, including any and all features, functionality, tools, content and promotions available on and through the Portal, (ii) Your Content, (iii) any interactions with any other User, (iv) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (v) your gross negligence or willful misconduct.
7.6. Obligation to Defend.
You agree that, at Lumi’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you conduct the defense, (i) Lumi may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Lumi (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
7.7. No Implied Indemnity.
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
8. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND LUMI HAVE AGAINST EACH OTHER ARE RESOLVED.
8.1. Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to conflict of law principles.
Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in the State of Delaware before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
8.3. Jurisdiction and Venue
Subject to the above arbitration provisions, you and Lumi agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the portal(collectively, “Disputes”) in the federal or state courts located in the State of Delaware and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that Lumi retains the right to submit a Dispute to any court of competent jurisdiction. Lumi also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
8.4. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST LUMI ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND LUMI OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
8.5. Future Amendments to this Section
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Lumi. We will notify you of amendments to this section by posting the amended Terms on the Portal. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the portal immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Lumi in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
9.2. Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Lumi may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
9.4. No Agency
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
9.5. Survival of Terms
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of these Terms of Service shall survive such expiration or termination.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Lumi (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Portal. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
9.11. Contact Us
If you have any questions or concerns, please contact Lumi at firstname.lastname@example.org.
9.12. California Residents
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
Complaints regarding the Portal or Services or requests to receive further information regarding use of the Portal or Services may be sent to the above address or to email@example.com.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.