Posted: November 7, 2014
Thank you for your interest in the LumiKids mobile application! LumiKids is created by Lumos Labs, Inc. (“Lumos Labs” or “we”). These Terms of Service (“TOS”) govern the use of LumiKids.
- Your Account Information and Email
- Intellectual Property
- Product Changes
- Your License to Use LumiKids
- Canceling Your Account
- Restrictions and Prohibited Uses
- Limitation of Liability
- Agreement to Arbitrate and Waiver of Class Action Claims
1. Your Account Information and Email
- Intellectual Property
LumiKids is protected by U.S. and international intellectual property laws and you agree to abide by them. Without our prior written consent, you may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, or perform any LumiKids content. All intellectual property rights in LumiKids are, as between you and Lumos Labs, the sole and exclusive property of Lumos Labs.
We appreciate when you provide us feedback, but we may use any feedback, comments, or suggestions without any obligations to you.
- Product Changes
We are constantly improving the LumiKids experience, and accordingly, some features may not be available in the future. We reserve the right to make modifications to LumiKids at our discretion.
- Your License to Use LumiKids
We are providing you with access to LumiKids pursuant to a limited, non-exclusive, non-sublicenseable, non-transferable, revocable license. You can use LumiKids for personal, non-commercial use only, and subject to the TOS. This license is available to you as long as you are not barred from LumiKids by applicable law and your account is not terminated by us or by you. If the TOS are not enforceable where you are located, you may not use LumiKids. Lumos Labs reserves all right, title, and interest not expressly granted under this license to the fullest extent possible under applicable laws.
- Canceling or Deleting Your Account
While we hope you enjoy using LumiKids, you may cancel or delete your account at any time by contacting our team via email (email@example.com).
- Restrictions and Prohibited Uses
We are proud of the trust our users place in us. We expect, in turn, that our users do not misuse our products and services. Except with our written permission, you shall not:
- Attempt to impersonate another person or use another person’s LumiKids account information without authorization;
- Use or distribute LumiKids for your own scientific, educational or clinical research purposes;
- Violate or attempt to violate LumiKids’s security features;
- Redistribute, decompile, reverse engineer, publish, or copy LumiKids;
- Use LumiKids for the purpose of creating a product with a substantially similar look, feel or design;
- Access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”);
- Use LumiKids or any trademarks, game names, trade names, service marks, copyrights, or logos of Lumos Labs, in unsolicited mailings, spam material, contests or surveys, or to create the impression that such items are associated with you;
- Threaten, stalk, harm, or harass others; or engage in activity in connection that is fraudulent, abusive, defamatory, illegal or otherwise inappropriate.
Engaging in prohibited uses is grounds for immediate termination of your LumiKids account, and may also subject you to civil or criminal penalties.
YOU AGREE THAT USE OF LUMIKIDS IS AT YOUR OWN SOLE RISK AND THAT LUMIKIDS IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LUMOS LABS AND ITS AFFILIATES, OFFICERS AND/OR EMPLOYEES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING LUMIKIDS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. Some jurisdictions do not allow the disclaimers in this paragraph, so they may not apply to you.
LUMOS LABS STRIVES TO MAINTAIN LUMIKIDS ON A COMMERCIALLY REASONABLE BASIS AND CANNOT GUARANTEE THAT YOU WILL HAVE ACCESS TO LUMIKIDS AT ALL TIMES.
LUMIKIDS IS NOT A MEDICAL SERVICE AND IS NOT TO BE USED FOR THE PURPOSE OF SEEKING, AND LUMIKIDS IS NOT PROVIDING, MEDICAL TREATMENT OR ADVICE.
- Limitation of Liability
IN NO EVENT SHALL LUMOS LABS OR ITS AFFILIATES, OFFICERS AND/OR EMPLOYEES BE LIABLE WITH RESPECT TO LUMIKIDS FOR (I) IN THE AGGREGATE, ANY AMOUNT IN EXCESS OF THE FEES PAID BY YOU TO SUBSCRIBE TO LUMIKIDS; (II) LOST PROFITS, LOST DATA, OR FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE ARISING OUT OF YOUR ACCESS TO OR USE OF LUMI KIDS; OR (III) ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.
YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN LUMOS LABS AND YOU. YOU UNDERSTAND THAT LUMIKIDS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. Some jurisdictions do not allow the limitations in this section, so they may not apply to you.
You will indemnify and hold harmless Lumos Labs, its affiliates, officers and/or employees, including by paying costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your access to LumiKids, Your Content, or the violation of the TOS by you.
10. Agreement to Arbitrate and Waiver of Class Action Claims
PLEASE READ THIS SECTION 10 CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
If a dispute arises, our goal is to provide you a neutral and cost effective means to resolve it quickly. Most disputes can be resolved informally. Before filing a claim against Lumos Labs, you agree to try to resolve the dispute by contacting us in writing at Lumos Labs, Inc., ATTN: DISPUTE NOTICE, 140 New Montgomery St. Floor 19, San Francisco, CA 94105, or by email to firstname.lastname@example.org. Before we file a claim against you, we agree to contact you at the email address associated with your LumiKids account. If the dispute is not resolved within 30 days of notice, either you or we may bring a formal proceeding pursuant to the following procedures:
A. GENERAL. YOU AGREE THAT YOU AND LUMOS LABS WILL RESOLVE THROUGH BINDING ARBITRATION ANY DISPUTE, CLAIM OR CONTROVERSY BETWEEN US ARISING OUT OF OR RELATING IN ANY WAY TO LUMI KIDS OR YOUR USE THEREOF, INCLUDING THESE TOS (collectively, “ARBITRAL CLAIMS”), with a few exceptions set forth below. The arbitrator, and not any court, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement to Arbitrate, including any claim that all or any part of this Agreement to Arbitrate is void or voidable, or whether a claim is subject to arbitration.
ARBITRATION IS DIFFERENT FROM COURT. THE RULES, INCLUDING DISCOVERY, ARE DIFFERENT AND NO JUDGE OR JURY IS PRESENT AT AN ARBITRATION. IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION, AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED. THE AWARD IS FINAL AND BINDING AND SUBJECT ONLY TO LIMITED REVIEW BY A COURT. YOU UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, YOU MAY HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
B. ARBITRATION SERVICES AND RULES. Judicial Arbitration and Mediation Services (“JAMS”) will administer the arbitration using the JAMS’ procedures and rules in effect on the date the Arbitration is filed (“JAMS Rules”). In the event the JAMS Rules are inconsistent with this Agreement to Arbitrate, this Agreement will prevail. JAMS is independent from us, and you may obtain copies of the current JAMS Rules, and other related materials, including forms and instructions for initiating arbitration, by contacting JAMS at 1920 Main Street, Suite 300, Irvine, CA 92614 1-800-352-5267 or www.jamsadr.com.
C. FILING FEES. If your claim is for $7,500 or less, we will reimburse you for the filing fee.
D. LOCATION OF ARBITRATION. If your claim is for $7,500 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the JAMS Rules, and any in-person hearing will be held in the United States county where you live or work, San Francisco, CA, or any other location you and we mutually agree to.
E. SETTLEMENT AWARDS AND FEE REIMBURSEMENT. If you prevail, and the arbitrator issues an award that exceeds our best written settlement offer that we made prior to 30 days into the arbitration (or if we did not make a settlement offer before that point), then we will pay you the amount of the award or $7,500, whichever is greater. Also, if you prevail, and the arbitrator issues an award that exceeds our best written settlement offer that we made prior to 30 days into the arbitration (or if we did not make a settlement offer before that point) and the amount of the award is less than $7,500, we will reimburse you for arbitration fees and your reasonable attorneys’ fees and costs.
F. EXCEPTIONS TO ARBITRAL CLAIMS. As an exception to this Section 10, you may assert claims on an individual basis, if they qualify under applicable rules, in Small Claims court. Also, either you or we may bring claims to enforce intellectual property rights without first engaging in arbitration or the informal dispute resolution described in this Section 10.
G. CLASS ACTION WAIVER. YOU AND LUMOS LABS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE WITH LUMOS LABS THAT NEITHER YOU NOR LUMOS LABS WILL JOIN ANY ARBITRAL CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION OR OTHER PROCEEDING; THAT NO ARBITRAL CLAIM WILL BE RESOLVED ON A CLASS-WIDE BASIS; THAT NEITHER YOU NOR LUMOS LABS WILL ASSERT AN ARBITRAL CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE; AND BOTH PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable or that arbitration can proceed on a class basis, then this Agreement to Arbitrate shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
H. NO RIGHT TO JURY TRIAL. YOU AND LUMOS LABS ALSO HEREBY WAIVE THE RIGHT TO A JURY TRIAL EVEN IF THIS AGREEMENT TO ARBITRATE IS HELD NOT TO APPLY. YOU EXPRESSLY WAIVE YOUR RIGHT TO A JURY TRIAL IN THE EVENT THAT EITHER PARTY SELECTS ARBITRATION TO RESOLVE THE DISPUTE UNDER THIS AGREEMENT.
I. 30 DAY OPT OUT RIGHT. You have the right to opt-out and not be bound by the arbitration and the class action waiver provisions set forth in this Section 10 by sending written notice of your decision to opt-out to the following address: Lumos Labs, Inc., ATTN: Arbitration Opt-out, 140 New Montgomery St. Floor 19, San Francisco, CA 94105, or by email to email@example.com. For new users, the notice must be sent within 30 days of registering for LumiKids, and for existing users, the notice must be sent within 30 days of the effective date of this policy. If you do not opt-out, you shall be bound to the terms in this Section 10. If you choose to opt-out, Lumos Labs also will not be bound.
(a) Severability and Waiver. If any part of the TOS is held invalid or unenforceable, the remaining provisions of the TOS will remain in full effect and an enforceable term will be substituted reflecting yours and our intent as closely as possible. Either party’s failure to enforce any term or condition in the TOS is not a waiver of its right to do so later.
(b) Governing Law, Jurisdiction and Venue. Except to the extent preempted by the Federal Arbitration Act (“FAA”), the TOS are governed by California law without regard to conflict of law provisions. Except as provided in Section 10, or to the extent preempted by the FAA, both parties further consent to the personal jurisdiction of and exclusive venue in the federal and state courts in San Francisco County, California as the legal forum for any dispute between them.
(c) Change Policy. The TOS may be updated from time to time. If we make material changes, we will provide advance notice to you either by email, by posting a notification on LumiKids or by posting an updated TOS on LumiKids at least 30 days in advance of the effective date of the updated TOS. Please note that unless otherwise provided by applicable law, your continued use of LumiKids following the effective date means that you agree with, and consent to be bound by, the updated TOS.
(d) Miscellaneous. The TOS are the complete and exclusive statement of the mutual understanding of the parties and supersede all previous written and oral agreements relating to the subject matter of the TOS. If there is any conflict between the TOS and any additional terms, conditions, and rules posted by Lumos Labs on LumiKids, the TOS shall govern, unless otherwise indicated. Sections 2-11 shall survive any termination of the TOS.