THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 14 (DISPUTE RESOLUTION, CLASS ACTION WAIVER, ARBITRATION AGREEMENT) BELOW GOVERN THE RESOLUTION OF DISPUTES. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE WITH THESE TERMS (AS DEFINED BELOW), INCLUDING THE MANDATORY ARBITRATION PROVISION (IF YOU HAVE NOT OPTED OUT AS ALLOWED HEREIN) AND CLASS ACTION WAIVER, PLEASE DO NOT USE THE SERVICES OR SOFTWARE.
BY USING THE SERVICES OR THE SOFTWARE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THE TERMS, OR, IF YOU ARE NOT, THAT YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THE TERMS.
You must be 13 or older to register for an individual. Schools that participate in the primary and secondary education named user offering may issue a child under 13 an enterprise-level Luxedo ID.
- Your Agreement with Luxedo.
1.1 Choice of Law and Contracting Entity. If you reside in North America (inclusive of the United States, Canada, Mexico, United States territories and possessions, and United States military bases, wherever located), your relationship is with Luxedo Inc., a United States company, and the Terms are governed by, and construed and interpreted in accordance with, the laws of the State of Tennessee, U.S.A., unless preempted by U.S. federal law, without regard to conflict of law rules. If you reside outside of North America, your relationship is with Luxedo LLC, and the Terms are governed by, and construed and interpreted in accordance with, the laws of Ireland, unless preempted by local law. For customers in Australia, you may have additional rights under your local law. We do not seek to limit those rights where it is prohibited to do so by law. For purposes of the Terms, “Luxedo,” “us,” “we,” and “our” mean either Luxedo LLC or any associated product within the Luxedo LOB.
1.2 Additional Terms. Our Services and Software are licensed, not sold, to you, and also may be subject to one or more of the additional terms below (“Additional Terms”). If there is any conflict between the terms in the General Terms and the Additional Terms, then the Additional Terms govern in relation to those Services or Software. The Additional Terms are subject to change as described in section 1.4 (Updates to Terms) below.
1.3 Business Email Domains. As a Personal User or a Business User, you may create an Luxedo account using an email address provided or assigned to you by a Business (such as your work email address). If the Business establishes a direct relationship with us, they may want to add your account to such relationship. If this happens, the Business may, with prior notice from the Business or us, roll your account into the Business’s account. This means the Business may (A) access the account; (B) take control over the account and any Content therein whether stored, uploaded, or imported before or after the date the Terms were last updated; and (C) recommend any non-Business Content associated with such account to be moved to a new account that utilizes an email address not associated with such Business. You, as a Personal User with a Luxedo account assigned to a Business or a Business User, also acknowledge that Luxedo may provide your personal information to such Business (including, for clarity, sharing your information with an administrator of your Business), such as your name, email address and Entitlement information. If you do not want a Business to access, use, remove, retain, or control an account or profile, then do not use a Business email address with that account. Luxedo may share information about the Business, such as name and email address of the administrator, to a Business User.
1.4 Updates to Terms. We may make changes to the Terms from time to time, and if we do, we will notify you by revising the date at the top of the Terms and, in some cases, we may provide you with additional notice. Any such changes will not apply to any dispute between you and Luxedo arising prior to the date on which we posted the revised Terms incorporating such changes, or when the Terms otherwise become effective. You should look at the Terms regularly. Unless otherwise noted, the amended Terms will be effective immediately, and your continued use of our Services and Software confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services and Software and, if applicable, cancel your subscription.
2.1 Our Access to Your Content. We will only access, view, or listen to your Content (defined in section 4.1 (Content) below) in limited ways, and only as permitted by law. For example, in order to provide the Services and Software, we may need to access, view, or listen to your Content to (A) respond to Feedback or support requests; (B) detect, prevent, or otherwise address fraud, security, legal, or technical issues; and (C) enforce the Terms.
2.2 Sensitive Personal Information. You agree not to collect, process, or store any Sensitive Personal Information (as defined below) using the Services and Software, except as (A) directly authorized by Luxedo, (B) intended by the Services and Software, or (C) governed by the Additional Terms, as applicable. You agree not to transmit, disclose, or make available Sensitive Personal Information to Luxedo or Luxedo’s third-party providers. “Sensitive Personal Information” means an individual’s financial information, data concerning an individual’s sexual behavior or sexual orientation, medical, or health information protected under any health data protection laws, biometric data, personal information of children protected under any child data protection laws (such as the personal information defined under the U.S. Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal data” or “special categories of personal information”) as used in applicable data protection or privacy laws. If you are a Business, you also agree to ensure Business Users’ compliance with this section 2.4 (Sensitive Personal Information).
2.3 Transfer of Personal Information. We process and store information in the U.S. and other countries. By using our Services and Software, you authorize Luxedo to transfer your personal information across national borders and to other countries where Luxedo and its partners operate.
- Use of Services and Software.
3.1 License. Subject to your compliance with the Terms and applicable law, we hereby grant you a non-exclusive, limited, revocable right for you to install, access and use the Services and Software that we make available to you, and that you license from us. Each license is to be used by only one (1) person and cannot be shared. At the end of your license term, your license(s) will expire as set forth in your order document(s), or the Subscription and Cancellation Terms. The version(s) of the Services and Software available at your renewal date may be different from the version(s) available when you first licensed them from Luxedo. You agree that your decision to use, access, or license the Services and Software is not contingent on the
delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
3.2 Luxedo Intellectual Property. We (and our licensors, as applicable) remain the sole owner of all right, title, and interest in the Services and Software. Except as stated in the Terms, we do not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the Services or Software. This means you may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. We reserve all rights not granted under the Terms.
3.3 Storage. We recommend that you back up your Content elsewhere regularly, even if the Services provide storage and this functionality is enabled by the applicable Services. We may create reasonable technical limits, such as limits on file size, storage space, processing capacity, and other attributes. We may suspend the Services until you are within the storage space limit associated with your account. At the end of your license term, we will use commercially reasonable efforts to allow you to transition your Content out of the Services. The transition must be completed within thirty (30) days from the date of the termination or expiration of your license term. At the end of this 30-day transition period, we reserve the right to delete your Content. You should download any Content that you have stored in the Services before your license ends.
3.4 User-Generated Content. We may host user-generated content from our users. If you access our Services, you may come across user-generated content that you find offensive or upsetting. We bear no responsibility for such user-generated content and your sole remedy is to stop viewing the content. If available, you may also click on the “Report” button to report offensive user-generated content to us.
3.5 Sample Files. “Sample Files” means Luxedo-provided audio, visual, video, or other content files for use in tutorials, demonstrations, and for other trial purposes, which may be identified as sample files. Sample Files cannot be used for any other purpose than for which they were provided. You cannot distribute Sample Files in any way that allows a third party to use, download, extract, or access the Sample Files as a stand-alone file, and you cannot claim any rights in the Sample Files.
3.6 Content Files. “Content Files” means Luxedo assets provided as part of the Services and Software. Unless documentation or specific licenses (including but not limited to Additional Terms) state otherwise, we grant you a personal, non-exclusive, non-sublicensable (except if you are a Business, then sublicensable only to your Business Users), and non-transferable license to use the Content Files to create your end use (i.e., the derivative application or product authored by you) into which the Content Files, or derivations thereof, are embedded for your use (“End Use”). You may modify the Content Files prior to embedding them in the End Use. You may reproduce and distribute Content Files only in connection with your End Use, however, under no circumstances can you distribute the Content Files on a stand-alone basis, outside of the End Use.
3.7 Free Memberships, Offers, and Trials. Luxedo may provide free memberships, offers, and trial subscriptions in its sole discretion. If access to the Services and Software is provided to you for free or for trial purposes, such access is governed by the Terms. At any time prior to or during the free or trial period, Luxedo may, in its sole discretion, terminate the free or trial access without prior notice and without any liability to you, to the extent permitted under applicable law, for any reason, including to prevent abuse of the free or trial access. After the free or trial access period expires, you may continue using the Services or Software only by enrolling in a paid subscription, if available, or as otherwise permitted by Luxedo. During the free or trial period, no express or implied warranties shall apply to the Services and Software; all Services and Software are provided “as-is” with all defects, and no technical or other support is included.
3.8 NFR Version. Luxedo may also designate the Services and Software as “trial,” “evaluation,” “not for resale,” or other similar designation (“NFR Version”). You may install and use the NFR Version only for the period and purposes stated when we provide the NFR Version. You must not use any materials you produce with the NFR Version for any commercial purposes.
3.9 Other License Types.
Pre-release or Beta Version. We may designate the Services and Software, or a feature of the Services and Software, as a prerelease or beta version (“Beta Version”). A Beta Version does not represent the final Services and Software and may contain bugs that may cause system or other failure and data loss. We may choose not to release a commercial version of the Beta Version. You must promptly cease using the Beta Version and destroy all copies of the Beta Version if we request you to do so. In exchange for your use of a Beta Version, you agree that Luxedo may collect data, including crash data, regarding your use of the Beta Version and analyze your Content, including manual review, to improve our Services and Software and to personalize your experience, regardless of whether you have opted-out of data collection for non-Beta Versions. If you do not wish to have your usage tracked or Content analyzed, you must discontinue your use of the Beta Version by uninstalling such Beta Version or utilizing a non-Beta Version of the Services and Software. Any separate agreement we enter into with you governing the Beta Version will supersede these provisions.
- Your Content.
4.1 Content. “Content” means any text, information, communication, or material, such as audio files, video files, electronic documents, or images, that you upload, import into, embed for use by, or create using the Services and Software. We reserve the right (but do not have the obligation) to remove Content or restrict access to Content, Services, and Software if any of your Content is found to be in violation of the Terms. We do not review all Content uploaded to the Services and Software, but we may use available technologies, vendors, or processes to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing, or keywords that indicate adult content has been posted outside of the adult wall).
4.2 Licenses to Your Content. Solely for the purposes of operating or improving the Services and Software, you grant us a non-exclusive, worldwide, royalty-free sublicensable, license, to use, reproduce, publicly display, distribute, modify, create derivative works based on, publicly perform, and translate the Content. For example, we may sublicense our right to the Content to our service providers or to other users to allow the Services and Software to operate as intended, such as enabling you to share photos with others. Separately, section 4.5 (Feedback) below covers any Feedback that you provide to us.
4.3 Ownership. As between you and Luxedo, you (as a Business User or a Personal User, as applicable) retain all rights and ownership of your Content (or where applicable, you must ensure that you or the Business (as applicable) have a valid license to the Content). We do not claim any ownership rights to your Content.
4.5 Feedback. You may, at your own discretion, choose to provide us with ideas, suggestions, proposals, or bug or crash reports for the Services and Software ("Feedback"). In such event, you agree that we are the owner of such Feedback, and we are free to use it for our business purposes, including by incorporation into the Services and Software without any payment or attribution or other obligation to you.
- Your Account.
5.1 Account Information. You, as a Personal User or a Business User, are responsible for all activity that occurs via your account even if that activity is not by you or is without your knowledge or consent. You may not (A) share your account information (except with an authorized account administrator), whether intentionally or unintentionally; or (B) use another person’s account. Your account administrator may use your account information to manage your use and access to the Services and Software.
5.2 Account Security. You are responsible for taking reasonable steps to maintain the security and control of your Luxedo Account. Luxedo may require you to enable multi-factor authentication and provide a phone number or an alternate email for security purposes. Luxedo assumes no responsibility for any loss that you may sustain due to a compromise of your account login credentials, or your failure to follow or act on any notices or alerts that we may send to your email address or telephone number. You are responsible for keeping your email address and telephone number up to date in order to receive any notices or alerts that we may send you, and you are also responsible for carefully reviewing any messages purporting to be from Luxedo to ensure they are legitimate. We assume no responsibility if you are unable to access your Luxedo Account because you cannot provide the appropriate login credentials, such as a password, email address, or telephone number.
5.3 Free Account Inactivity. You are responsible for keeping your account active, which means you must sign in periodically to avoid any disruption or loss of access to the Services and Software, or termination of your account. If you don't sign into your account periodically, we reserve the right to assume your account is inactive, and you agree that we may close it for you. You understand that you will lose access to any Content stored in your account upon closure. Prior to closing your account for inactivity, we will attempt to provide notice to you. For the avoidance of doubt, this section 5.3 (Free Account Inactivity) does not apply to paid accounts in good standing.
- User Conduct. You must use the Services and Software responsibly and not misuse the Services and Software. For example, you must not:
6.1 use the Services and Software without, or in violation of, a written license or agreement with Luxedo;
6.2 copy, modify, host, stream, sublicense, or resell the Services and Software;
6.3 enable or allow others to use the Services and Software using your account information;
6.4 offer, use, or permit the use of or access to the Services and Software in a computer services business, third-party outsourcing service, on a membership or subscription basis, on a service bureau basis, on a time sharing basis, as a part of a hosted service, or on behalf of any third party;
6.5 construct a database or dataset using, including, or comprised of the Content Files;
6.6 access or attempt to access the Services and Software by any means other than the interface we provide or authorize;
6.7 circumvent any access or use restrictions put into place to prevent certain uses of the Services and Software;
6.8 Share Content or otherwise engage in behavior that violates anyone’s Intellectual Property Rights. “Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights;
6.9 Share any Content or engage in behavior that is unlawful, harmful, threatening, obscene, violent, abusive, tortious, defamatory, libelous, vulgar, lewd, invasive of another’s privacy, hateful, or otherwise objectionable;
6.10 Share any Content that sexualizes minors or that is intended to facilitate inappropriate interactions with minors, other Luxedo users, or the public;
6.11 impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including not disclosing an applicable sponsorship or endorsement relationship when you leave a review;
6.12 attempt to disable, impair, or destroy the Services and Software;
6.13 upload, transmit, store, or make available any Content, including Creative Cloud Customer Fonts, or code that contains any viruses, malicious code, malware, or any components designed to harm or limit the functionality of the Services and Software;
6.14 disrupt, interfere with, or inhibit any other user from using the Services and Software (such as stalking, intimidation, harassment, or incitement or promotion of violence or self-harm);
6.15 engage in chain letters, junk mail, pyramid schemes, phishing, spamming, or other unsolicited messages;
6.16 engage in fraudulent activities, such as payment and refund fraud;
6.17 place an advertisement of any products or services in the Services except with our prior written approval;
6.18 use any data mining or similar data gathering and extraction methods in connection with the Services and Software, including data scraping for machine learning or other purposes;
6.19 artificially manipulate or disrupt the Services and Software (such as driving users to third-party sites);
6.20 create Luxedo accounts for the purpose of violating the Terms or our policies (or other types of actions taken by Luxedo), including, but not limited to, creating fake accounts, or for circumventing account termination;
6.21 manipulate or otherwise display the Services and Software by using framing or similar navigational technology; or
6.22 violate applicable law.
- Fees and Payment.
7.1 Taxes and Third-Party Fees. You must pay any applicable taxes and third-party fees (including, for example, telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, VAT, foreign exchange fees, and foreign transaction fees). We are not responsible for these fees. Contact your financial institution with questions about fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses. If you are located in a different country from the applicable Luxedo entity with which you are transacting (i.e., Luxedo LLC), your payments will be made to a foreign entity.
7.2 Credit Card Information. You authorize us or our authorized vendor(s) to store your payment method and use it in connection with your use of the Services and Software as described in your Subscription and Cancellation Terms. To avoid interruption of your service, we may participate in programs supported by your card provider to try to update your payment information. You authorize us or our authorized vendor(s) to continue billing and charging your account for amounts owed with the information that we obtain.
- Your Warranty and Indemnification Obligations.
8.1 Warranty. You must have: (A) all necessary licenses and permissions to use and Share your Content; and (B) the rights necessary to grant the licenses in the Terms. Please review the warranty policy in regards to hardware on our Luxedo website.
8.2Return Policy.User accepts and agrees to specific guidelines detailed in our return policy found on our Luxedo website. We retain the right to make exceptions to this policy on a case-by-case basis.
8.2 Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim(s), demand(s), loss(es), or damage(s), including reasonable attorneys’ fees , arising out of, or related to your Content, including, but not limited to Luxedo Shared Media, your use of the Services and Software (as applicable), your interactions with any other users (including Third-Party Entitlement Holders), or your violation of the Terms (“Matter”). We have the right to control the defense of any Matter subject to indemnification by you with counsel of our own choosing. You will fully cooperate with us in the defense of any Matter.
- DISCLAIMERS OF WARRANTIES.
9.1 Unless stated in the Additional Terms, the Services and Software are provided “AS-IS.” To the maximum extent permitted by law, Luxedo, its affiliates, and third-party providers (“Covered Parties”) disclaim all warranties, express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose.
- LIMITATION OF LIABILITY.
10.1 Unless stated in the Additional Terms, in no event shall the Covered Parties be liable to you or anyone else for any special, incidental, indirect, consequential, moral, exemplary or punitive damages whatsoever, regardless of cause, including losses and damages (A) resulting from loss of use, data, reputation, revenue, or profits; (B) based on any theory of liability, including breach of contract or warranty, negligence, or other tortious action; or (C) arising out of or in connection with your use of or access to the Services and Software. Nothing in the Terms limits or excludes our liability for gross negligence, intentional misconduct of Luxedo or its employees, death, or personal injury.
10.2 Our total liability in any matter arising out of or related to the Terms is limited to the greater of (A) US $100; or (B) the aggregate amount that you paid for access to the Services and Software during the three-month period preceding the event giving rise to the liability. Our suppliers will have no liability in any matter arising out of or related to the Terms.
10.3 These limitations and exclusions in this section 10 (Limitation of Liability) apply to the maximum extent permitted by law even if (A) a remedy does not fully compensate you for any losses or fails of its essential purpose; or (B) the Covered Parties knew or should have known about the possibility of damages.
10.4 The Terms set forth the entire liability of the Covered Parties as well as your exclusive remedy with respect to access and use of the Services and Software.
11.1 Termination by You. You may cancel your subscription and terminate your use of the Services and Software at any time. Cancellation or termination of your account does not relieve you of any obligation to pay any outstanding fees associated with your subscription, including, but not limited to early cancellation fees.
11.2 Termination by Us. Unless stated in the Additional Terms, we may at any time immediately terminate or suspend your right to use and access the Services and Software, without refunds for any pre-paid fees, if in Luxedo's sole discretion:
(A) you breach any provision of the Terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);
(B) you fail to make the timely payment of fees for the Services and Software, if any;
(C) you physically, verbally, or through other means abuse, threaten, bully, or harass us or our personnel (in such circumstances, we may alternatively suspend or restrict your access to the Services and Software);
(D) you have repeatedly made complaints in bad faith or without a reasonable basis, and continue to do so after we have asked you to stop (in such circumstances, we may alternatively suspend or restrict your access to the Services or Software);
(E) continuing to provide the Software or Services to you would violate any applicable law;
(F) we elect to discontinue the Services and Software, in whole or in part if it becomes impractical for us to continue offering Services in your region due to change of law, or other reason; or
(G) there has been an extended period of inactivity in your free account
If we terminate the Terms, or your use of the Services and Software for reasons other than for cause, as listed above, we will make reasonable efforts to notify you via the email address you provide to us, at least thirty (30) days prior to termination, with instructions on how to retrieve your Content. Upon termination by us, you may lose access to your Content.
11.3 Survival. Upon the expiration or termination of the Terms, some or all of the Services and Software may cease to operate without prior notice. Your indemnification obligations, our warranty disclaimers and limitations of liabilities, and the dispute resolution provisions stated in the Terms will survive.
- Trade Sanctions and Export Control Compliance. The Services and Software, and your use of them, are subject to laws, restrictions, and regulations of the United States and other jurisdictions that (A) govern the import, export, and use of the Services and Software; and (B) may, in Luxedo's sole discretion, prohibit us from providing the Services and Software to you with or without notice, in which case no refunds will be provided for any pre-paid fees. By using the Services and Software, you agree to comply with all such laws, restrictions, and regulations, and you warrant that you are not prohibited from receiving the Services and Software by the laws of any jurisdiction. Additionally, you agree not to upload to or transmit over any Services or Software any content that is controlled for export from the United States (including technical data controlled under the US International Traffic in Arms Regulations and technology controlled under the US Export Administration Regulations) without prior written approval from Luxedo.
- Australian Consumer Law.Nothing in the Terms is intended to exclude, restrict, or modify any consumer rights under the Competition and Consumer Act 2010 (Cth) (“CCA”) or any other legislation which may not be excluded, restricted, or modified by agreement. If the CCA or any other legislation implies a condition, warranty, or term into the Terms or provides statutory guarantees in connection with the Terms, in respect of goods or services supplied (if any), our liability for breach of such a condition, warranty, other term or guarantee is limited (at our election), to the extent it is able to do so: (A) in the case of supply of goods, our doing any one or more of the following: (1) replacing the goods or supplying equivalent goods; (2) repairing the goods; (3) paying the cost of replacing the goods or of acquiring equivalent goods; and (4) paying the cost of having the goods repaired; or (B) in the case of supply of services, our doing either or both of the following: (1) supplying the services again; and (2) paying the cost of having the services supplied again.
- Dispute Resolution, Class Action Waiver, Arbitration Agreement.
Luxedo Customer Care is available to address most concerns that you may have regarding Luxedo’s Services and Software. Contact Luxedo Customer Care here.
14.1 Notice of Claim and Required Information Dispute Resolution Process. If you have any concern or dispute that Luxedo Customer Care is unable to resolve (“Claim”), you agree to first try to resolve the dispute informally and in good faith by contacting us and providing a written Notice of Claim to the address provided in section 18.2 (Notice to Luxedo). The Notice of Claim must provide Luxedo with fair notice of your identity, a description of the nature and basis of your Claim, and the relief you are seeking, including the specific amount of any monetary relief you are seeking, and cannot be combined with a Notice of Claim for other individuals. If any dispute related to your Claim is not resolved within 60 days of receipt, any resulting legal actions must be resolved through either small claims court or final and binding arbitration, including any dispute about whether arbitration is required for the dispute, subject to the exceptions set forth below. Neither party shall initiate legal action until 60 days after the Notice of Claim is received. This agreement to arbitrate shall apply, without limitation, to all claims that arose or were asserted before the effective date of the Terms. The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of the Terms or formation of the Terms, including whether any dispute between us is subject to arbitration (i.e., the arbitrator will decide the arbitrability of any dispute) and whether all or any part of these Terms are void or voidable. Claims related to the Terms, Services, or Software are permanently barred if not brought within one year of the event resulting in the Claim.
14.2 No Class Actions. You may only resolve disputes with us on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Nonetheless, if any portion of this class action waiver is deemed unenforceable or invalid as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
14.3 Arbitration Rules. If you reside in the Americas, JAMS will administer the arbitration in Santa Clara County, California, USA, pursuant to its Streamlined Arbitration Rules and Procedures. If you reside in Australia, New Zealand, Japan, mainland China, Hong Kong, Macau, Taiwan, South Korea, India, Sri Lanka, Bangladesh, Nepal, or a member state of the Association of Southeast Asian Nations (ASEAN), then the Singapore International Arbitration Centre (SIAC) will administer the arbitration in Singapore under its Rules of Arbitration, which rules are deemed to be incorporated by reference in this section. Otherwise, the London Court of International Arbitration (LCIA) will administer the arbitration in London, UK under the LCIA Arbitration Rules. There will be one arbitrator that you and Luxedo mutually select. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English (at the expense of the party presenting the witness). Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over you and us. In the event of a conflict between the rules of the arbitration provider and the Terms, including with respect to the assessment of the fees and costs of arbitration, the Terms will govern.
14.4 Arbitration Fees and Costs. Payment of all filing, administration, and arbitrator fees and costs of arbitration will be governed by the rules of the arbitration provider, except that to the extent that you bring a Claim as part of a Coordinated Action, we agree that the parties will equally share all of the fees and costs of arbitration (to the extent that allocation is not already required under applicable rules). For purposes of this section, a “Coordinated Action” is any action in which you are represented by a law firm or collection of law firms that has filed numerous coordinated individual arbitration demands of the same or similar nature against Luxedo within a short time. If the arbitrator finds that either the substance of a Claim or the relief sought in arbitration was frivolous, or a Claim was brought for an improper purpose, the parties may seek to re-allocate the fees and costs of arbitration, according to the rules of the arbitration provider.
14.5 Exceptions to Arbitration – Small Claims and Injunctive Relief. Notwithstanding the foregoing, either party may elect to have any Claim that is subject to the jurisdiction of small claims court decided in small claims court in Santa Clara County, California, USA, or the county of your residence. If either party files a Claim in arbitration that could have been brought in small claims court, the other party may provide notice that it wants the case decided in small claims court before the appointment of an arbitrator, and the arbitrator shall administratively close the case before assessing any fees, and the party bringing the Claim must proceed in small claims court in lieu of arbitration. Any dispute about whether a Claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the Claim should proceed in arbitration. Additionally, either party shall be entitled to apply for preliminary injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction, such as in the event of your or others’ unauthorized access to or use of the Services or Software in violation of the Terms. If a party has a dispute in which they seek to obtain both preliminary injunctive relief and other forms of relief, the party may go to court to seek preliminary injunctive relief but must arbitrate its claims or seek relief in small claims court for all other forms of relief.
14.6 Acceptance of Arbitration and Right to Opt Out. Within the first thirty (30) days of your use of the Services and Software or the date of the last update to section 14 (Dispute Resolution, Class Action Waiver, Arbitration Agreement) of the Terms, whichever is later, you have the right to opt out of the arbitration and class action waiver provisions of section 14 (Dispute Resolution, Class Action Waiver, Arbitration Agreement) by sending us written notice of your decision at the address set forth in section 18.2 (Notice to Luxedo). If you opt out of these provisions, Luxedo will also not be bound by them.
- Audit Rights.If you are a Business, then we may, no more than once every twelve (12) months, upon at least seven (7) days’ prior notice to you, appoint our personnel or an independent third-party auditor who is obliged to maintain confidentiality, to inspect (including manual inspection, electronic methods, or both) your records, systems, and facilities to verify that your installation and use of Services or Software comply with our Terms. Additionally, you will provide us with all records and information requested by us within thirty (30) days of our request in order for us to verify that the installation and use of any and all Services and Software is in conformity with your valid licenses. If the verification discloses a shortfall in conformity with the licenses for the Services and Software, you will immediately acquire any necessary licenses, subscriptions, and applicable back maintenance and support or other applicable action in order to remedy any such non-conformity(ies).
- Updates to Services and Software and Availability.
16.1 Updates to the Services and Software. We may modify, update, or discontinue the Services and Software (including any portions or features), which modifications, updates or discontinuations may, for clarity, be detrimental or result in a diminishment of value to you, at any time, without liability to you or anyone else. For changes to paid offerings that, in Luxedo’s reasonable discretion, are detrimental or result in a material diminishment of value to you, we will make reasonable commercial efforts to notify you of such modification, update, or discontinuation. If we discontinue the Services or Software in its entirety, we will use reasonable commercial efforts to allow you to transition your Content, and we may provide you with a pro rata refund for any unused fees for that Service or Software that you prepaid.
16.2 Availability. Our webpages may be accessible worldwide, but this does not mean all Services and Software are available in your country or that user-generated content available via the Services and Software is legal or available in your country. Access to certain Services (or certain Service features) or Software in certain countries may be blocked by us or foreign governments. It is your responsibility to make sure your use of the Services and Software is legal or available where you use them. Services and Software are not available in all languages.
- No Modifications, Reverse Engineering, Artificial Intelligence/Machine Learning (AI/ML). Certain elements of the Services and Software constitute our (or our licensors’) confidential information. Except as expressly permitted in the Terms, you may not (and will not allow third parties to) (A) modify, port, adapt, or translate any portion of the Services or Software; (B) reverse engineer (including but not limited to monitoring or tracking the inputs and outputs flowing through a system or an application in order to recreate that system), decompile, disassemble, or otherwise attempt to discover, within any Service or Software, the source code, data representations or underlying algorithms, processes, methods, and any other portion of such Service or Software; or (C) use, or allow third parties to use, the Services or Software (or any content, data, output, or other information received or derived from the Services or Software) to directly or indirectly create, train, test, or otherwise improve any machine learning algorithms or artificial intelligence systems contained within the Services or Software, including any architectures, models, or weights (which is considered Luxedo’s confidential and proprietary information). If the laws of your jurisdiction give you the right to decompile the Services or Software to obtain information necessary to render the licensed portions of the Services or Software interoperable with other software, you must first request such information from us. We may, in our discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee, on your decompilation of the Services or Software to ensure that our and our licensors’ and suppliers’ proprietary rights in the Services and Software are protected.
18.1 English Version. The English version of the Terms will be the version used when interpreting or construing the Terms.
18.2 Notice to Luxedo. You may send notices to us at the following address: Luxedo LLC 1232 Topside Rd. Knoxville, TN 37777
18.3 Notice to You. We may notify you by your email or postal mail associated with your account, postings within the Services, or other legally accepted means. It is your responsibility to keep your account information current to receive notifications.
18.4 Non-Assignment. You may not assign or otherwise transfer the Terms or your rights and obligations under the Terms, in whole or in part, without our written consent, and any such attempt will be void. We may assign or transfer our rights under the Terms to a third party without your consent.
18.5 Government Terms. If you are a U.S. government entity, or if the Terms are or become subject to the Federal Acquisition Regulations (FAR), then the Services and Software, provided under the Terms are “Commercial Product(s) or Commercial Service(s)”, as those terms are defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” and services related thereto, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Federal Government End Users (A) only as Commercial Products and Services; and (B) with only those rights as are granted to all other end users pursuant to the Terms. Unpublished rights are reserved under the laws of the United States.
18.6 Headings. Headings used in the Terms are provided for convenience only and will not be used to construe meaning or intent.
18.7 Severability. If any provision of the Terms is held invalid or unenforceable for any reason, the remainder of the Terms will continue in full force and effect and such provision shall be ineffective only to the extent of such invalidity or unenforceability.
18.8 No Waiver. Our failure to enforce or exercise any provision of the Terms is not a waiver of that provision.
18.9 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation (other than your payment obligations to Luxedo) under the Terms if the delay or failure is due to unforeseen events, which occur after the effectiveness of the Terms and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
- DMCA.We respect the Intellectual Property Rights of others, and we expect our users to do the same. We will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”).