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Terms of Service

LAST UPDATED: JUNE 8, 2018

Welcome to Lumenty! Lumenty Technologies Inc. DBA Lumenty, a Delaware corporation, and its affiliates and subsidiaries (“Lumenty”, “we”, “us”, or “our”) owns, operates and provides the (1) the websites owned and operated by Lumenty, including the www.lumenty.com website and domains (the “Lumenty Website”), (2) the Lumenty proprietary iOS and Android mobile software applications (the “Lumenty App”), (3) the Lumenty proprietary Wi-Fi enabled light bulb products (the “Lumenty Products”), including any Lumenty Technology therein (defined in Section 2.1 below); and (4) any other products and services offered by Lumenty (clauses (1) – (3) collectively the “Services”). Your use of the Services, or any part thereof, are governed by these Terms of Service (the “Terms”). The Lumenty Website, Lumenty App, Lumenty Products, and Lumenty Technology are collectively referred to as the “Lumenty Service”).

PLEASE NOTE, THIS AGREEMENT ALSO CONTAINS AN AGREEMENT TO ARBITRATE IN SECTION 15 BELOW WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.

1. ACCEPTANCE OF TERMS, ELIGIBILITY & CHANGES TO THESE TERMS

1.1. Acceptance.  These Terms sets forth the legally binding terms and conditions for your use of the Services.  By using or accessing the Services in any manner, including, but not limited to, visiting or browsing the Lumenty Website, purchasing the Lumenty Products, or downloading or installing the Lumenty App, you: (1) acknowledge that you have read, understand, and agree to be bound by these Terms, including Lumenty’s Privacy Policy (the “Privacy Policy”); (2) represent that you are eligible to enter into these Terms pursuant to the eligibility requirements set forth below in Section 1.2; and (4) agree that you are entering into these Terms (including all of the terms and conditions specified or referenced below, including the Privacy Policy) with Lumenty Technologies Inc. DBA Lumenty a Delaware corporation.  In addition, when using particular services or materials through or in connection with the Services, you shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies and procedures in addition to those in the terms (“Additional Terms”).  All such Additional Terms are hereby incorporated by reference into these Terms. These Terms, together with the Privacy Policy, any Additional Terms and any other policies or terms and condition referenced herein, shall be collectively referred to as the “Agreement”.

1.2. Eligibility. You must be eighteen (18) years old or the age of majority in your jurisdiction, and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms in order to make a purchase on the Lumenty Website.  If you are under eighteen (18) years old or the age of majority in your jurisdiction, then you may not make a purchase on or through the Lumenty Website. You may use the Lumenty Website if you are over thirteen (13) years of age and are not barred from receiving services under applicable law.  The Lumenty Website is not directed to, nor intended for use by, children under thirteen (13) years of age. By accessing or using the Lumenty Website you affirm that you are over the age of thirteen (13) and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Agreement, and to abide by and comply with the Agreement.  If for any reason, we, in our sole discretion, believe you do not meet the eligibility requirements set forth above, we reserve the right, without provision of any notice to you to terminate your access to the Lumenty Services, or any part thereof, and your Lumenty Account (defined in Section 2.2) and these Terms. If you do not meet the eligibility requirements as set forth in this Section, we have no obligations to you under these Terms.

1.3. Modifications to these Terms.  These Terms will remain in full effect for the time that you continue to use or access the Services or any part thereof or until terminated in accordance with the provisions of these Terms. Lumenty reserves the right to change and amend these Terms from time to time at its discretion.  Any such changes to the Terms will take effect from the time the amended Terms are posted to the Lumenty Website or notified to you through the email provided by you to us. You should regularly review these Terms of Service. Lumenty reserves the right to make changes to, suspend or terminate Lumenty Accounts at its discretion without prior notice.

2. ACCESS TO THE Lumenty SERVICE; RESTRICTIONS ON USE; CHANGES TO THE SERVICES

2.1. Access to the Lumenty Service. Lumenty hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited right to: (i) access and use the Lumenty Website, solely for your non-commercial purposes; and (ii) (1) install, execute and use the Lumenty App, in object code only, and (2) execute and use any software and/or firmware included or embedded (as applicable) in the Lumenty Product (“Lumenty Technology”) solely to the extent included or embedded (as applicable) in conjunction with the Lumenty Product purchased by you, in each case, solely for accessing, monitoring and controlling the Lumenty Products installed at your own property from your own mobile or other computer devices, and in accordance with these Terms and any usage limitations provided by Lumenty. You are solely responsible for restricting access to such computer devices that can monitor and control the Lumenty Products installed on your property. You acknowledge and agree that in order to use the Lumenty App, you must have a compatible mobile device.  You are solely responsible for determining whether or not a mobile device is or is not compatible with the Lumenty App and Lumenty makes no representations or warranties whatsoever regarding the Lumenty App and compatibility with any mobile device.

2.2. Lumenty Accounts. In order to access and use certain features of the Services you must create and register a user account (“Lumenty Account”).  In registering a Lumenty Account for the Services, you agree to provide and maintain up to date information that is true, accurate, current, up to date, and complete. You agree that you will not (i) create a Lumenty Account using a false identity or information, (ii) create a Lumenty Account or use the Services if you have been previously removed or banned by us from use of the Services, or any part thereof. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your Lumenty Account.  You are solely responsible for any activity originating from your Lumenty Account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your Lumenty Account. Lumenty reserves the right to limit the number of Lumenty Accounts that can be created from a computer device and the number of computer devices that can access an individual Lumenty Account.

2.3. Restrictions. The Lumenty Service and Lumenty Technology embodies, contains, and constitutes valuable trade secrets of Lumenty.  Accordingly, you agree that you will not, and it will not permit any third party to: (i) modify, adapt, translate or create derivative works based on the Lumenty Service, Lumenty Technology, or any related documentation; or (ii) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Lumenty App, Lumenty Technology or Lumenty Products, except as expressly permitted by applicable law; or (iii) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Lumenty Service, Lumenty Technology, or any related documentation.  Lumenty reserves all rights and licenses not expressly granted to you and no implied licenses or rights are granted by Lumenty. You agree not to remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Lumenty or its suppliers on or within the Lumenty Website, Lumenty App, Lumenty Products or related documentation.

2.4. Prohibited Use of the Lumenty Service and Services. Without limiting the restrictions set forth in Section 2.3 above,  you agree that you will not, and it will not permit any third party to: (i) use the Lumenty Service to store or transmit malicious code or infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (ii) interfere with or disrupt the integrity or performance of the Lumenty Service, Lumenty Technology, or any system, network or data; (iii) attempt to gain unauthorized access to the Lumenty Service, Lumenty Technology or its related systems or networks; (iv) frame or utilize framing techniques to enclose the Lumenty Website or Lumenty App or any portion thereof; (v) use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Lumenty Website, Lumenty App or Lumenty Technology (except as expressly permitted in Section 2.1), content (except caching or as necessary to view the Lumenty Website), or the personal information of others without our prior written permission or authorization; (vi) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity; or (vii) violate any applicable local, state, national or international law in your use of the Services.

2.5. Additional Lumenty App Terms and Conditions

2.5.1. Lumenty iOS Apps. The following additional terms and conditions apply with respect to any Lumenty App provided or made available to you by Lumenty, designed for use on an Apple iOS-powered mobile device (an “iOS App”): you acknowledge that these Terms are between you and Lumenty only, and not with Apple, Inc. (“Apple”). Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service. Lumenty, and not Apple, are solely responsible for the iOS App and related content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to the iOS App.  To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App. You agree that Lumenty, and not Apple, is responsible for addressing any claims by you relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to Lumenty as provider of the iOS App. You agree that Lumenty, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App. You represent and warrant that you: (a) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) are not listed on any U.S. Government list of prohibited or restricted parties. You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of its wireless data service terms of agreement when using the iOS App). The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as it relates to the license granted herein to you to use the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to the license granted herein to you to use the iOS App as a third-party beneficiary thereof.

2.5.2. Lumenty Android Apps. The following additional terms and conditions apply with respect to any Lumenty App provided or made available to you by Lumenty, designed for use on an Android-powered mobile device (an “Android App”): you acknowledge that these Terms are between you and Lumenty only, and not with Google, Inc. (“Google”). Your use of the Android App must comply with Google’s then-current Android Market Terms of Service. Google is only a provider of the Android Market where you have obtained the Android App. Lumenty, and not Google, is solely responsible for the Android App and the related content available thereon.  Google has no obligation or liability to you with respect to the Android App or these Terms. You acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to the Android App.

2.6. Changes and Modifications to the Services. Lumenty reserves the rights to either temporarily or permanently modify or terminate the Services (or any part thereof). Lumenty will post on our website and/or will send you an email to the address associated with your Lumenty Account to provide the notice of any material changes to the Services. If you do not like the modifications to the Services, your sole remedy is to cease using the Services.

2.7. Third Party Integrations. Any third party applications or integrations developed for use with the Lumenty Product and/or Lumenty App are controlled by Lumenty’s Developer Term (“Developer Terms”). The Developer Terms are incorporated into and are made a part of these Terms.  In the event there is any inconsistency or conflict between these Terms and the Developer Terms, the Developer Terms shall control solely with respect to the subject matter therein.

3. USER DATA AND PRIVACY. You understand and agree that Lumenty may collect data and information, which may include personally identifiable information (“User Data”) in connection with your use of the Services.  Any personally identifiable information provided or collected through or in connection with the Services shall only be used in accordance with these Terms and the Privacy Policy. By using the Services and providing User Data you grant to Lumenty a non-exclusive, royalty-free, fully-paid, worldwide license, under all of your intellectual property and proprietary rights, to any and all User Data reasonably necessary for Lumenty to provide you the Services hereunder.  You represent and warrant that you have all the rights necessary to grant the Lumenty the licenses granted herein in and to you User Data. Notwithstanding the foregoing, you acknowledge and agree that Lumenty may use and exploit any aggregated non-personally identifiable data or information collected or obtained from your use of the Services for any purpose.

4. PURCHASE AND PAYMENT TERMS FOR Lumenty PRODUCTS

4.1. Transactions.  When you purchase Lumenty Products through the Lumenty Website (each such purchase, a "Transaction"), you will be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card (and CCV#), your billing address, and your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any Transaction. By submitting such information, you grant Lumenty the right to provide such information to our third party service providers for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction. Any merchandise purchased from the Lumenty Website will be shipped by a third party carrier to the shipping address provided by you in connection with the applicable Transaction. As a result, title and risk of loss for such merchandise will pass to you upon our delivery to (or pick up by) the carrier.

4.2. Orders. You agree that by placing an order on the Lumenty Website, you are entering into a binding contract with Lumenty and agree to pay all charges that may be incurred by you or on your behalf through the Lumenty Website, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from the Lumenty Website. By placing an order, you represent that the Lumenty Products ordered will be used only in a lawful manner. Lumenty reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any Lumenty Product; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar any user from making or completing any or all Transaction(s); and (iv) refuse to provide any user with any Lumenty Product or service.

4.3. Payment Terms.  If you have purchased Lumenty Products through the Lumenty Website, you shall pay to Lumenty the fees specified in the electronic or written purchase order submitted by you to Lumenty for such Lumenty Products, in accordance with the payment terms specified therein.  Except as expressly provided otherwise, all fees are non-refundable and no-returnable. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on Lumenty’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Lumenty Service, or performance of any services by Lumenty.

4.4. Purchase Related Policies and Procedures.  Please review our Returns Policy and Delivery Information that apply to and govern orders placed through the Lumenty Website for Lumenty Products.

5. EXCLUSIONS. Notwithstanding anything in these Terms to the contrary, Lumenty will have no responsibility or liability of any kind under these Terms or otherwise, arising or resulting from: (i) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Lumenty; (ii) nonconformities resulting from your, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Services, or other services provided hereunder by Lumenty;  (iii) modification, amendment, revision, or change to the Lumenty Services, or any part thereof, by any person other than Lumenty; or (iv) any other factor outside of Lumenty’s reasonable control.

6. OWNERSHIP; FEEDBACK

6.1. Ownership.  Lumenty and/or its licensors and suppliers, as applicable, retain all right, title, and interest in and to the Lumenty Website, Lumenty App, Lumenty Technology, and any other materials (including related product and/or software documentation) or services provided by Lumenty, and all aspects thereof, including all patents, copyrights, trade secrets, and other intellectual property rights incorporated therein.

6.2. Feedback. You acknowledge that any ideas, inventions, suggestions for improvement or discussions submitted by you regarding any aspect of the Services (“Feedback”) that are not already subject to third party intellectual property rights may be used by Lumenty or any other user of the Lumenty Service without compensation or attribution, and you hereby grant Lumenty, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicenseable and transferable license under all intellectual property rights in the Feedback for any purpose. You acknowledge that any Feedback submitted to Lumenty or through the Lumenty Website (including “contact-us” and support forms) constitutes “publication” of such inventions under applicable patent law.

7. THIRD PARTY LINKS AND WEBSITES. Any link from the Lumenty Website or Lumenty App to any third party website or content will not be considered an endorsement of such website or content, or the products or services available through such website.

8. INDEMNIFICATION. You agree to indemnify and hold harmless Lumenty, its subsidiaries, affiliates, partners and suppliers and each of their respective officers, directors, employees, shareholders, legal representatives, agents, successors and assigns, from and against any damages, liabilities, costs and expenses (including reasonable attorneys' and professionals' fees and litigation costs) that arise out of any violation of these Terms of Service by you.

9. DISCLAIMER

9.1. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY Lumenty, THE Lumenty WEBSITE, Lumenty APP, Lumenty PRODUCTS, Lumenty TECHNOLOGY, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY Lumenty ARE PROVIDED "AS IS" AND "AS AVAILABLE". LUMENTY AND ITS SUBSIDIARIES, AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AS TO THE OPERATION OF ANY ASPECT OF THE LUMENTY WEBSITE, LUMENTY APP, LUMENTY PRODUCTS, LUMENTY TECHNOLOGY, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY LUMENTY. LUMENTY DOES NOT WARRANT THAT THE LUMENTY WEBSITE, LUMENTY APP, LUMENTY PRODUCTS, LUMENTY TECHNOLOGY, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY LUMENTY WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE, OR RELIABLE.  YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN AS EXPRESSLY PROVIDED BY LUMENTY AND THAT NO WARRANTIES ARE MADE BY ANY OF LUMENTY’S SUPPLIERS.

9.2. LUMENTY IS NOT LIABLE FOR ANY INTERRUPTIONS TO INTERNET CONNECTIVITY, WI-FI CONNECTIVITY OR AVAILABILITY OR UNAVAILABILITY OF SERVICES OR PRODUCTS OR TECHNOLOGY OFFERED THROUGH THIRD PARTIES. ANY MATERIALS DOWNLOADED FROM THE LUMENTY WEBSITE ARE DONE SO AT YOUR OWN RISK. LUMENTY WILL NOT BE HELD ACCOUNTABLE FOR DAMAGE TO COMPUTER EQUIPMENT OR LOSS OF DATA AS A RESULT OF DOWNLOADS FROM THE LUMENTY WEBSITE. LUMENTY WILL NOT BE RESPONSIBLE FOR ANY PROBLEMS OR LIABILITY ARISING FROM THE USE OF THIRD PARTY SOFTWARE OR HARDWARE IN RELATION TO THE SERVICES.

9.3. YOU AGREE THAT THE AVAILABILITY OF THE LUMENTY WEBSITE, LUMENTY APP AND LUMENTY PRODUCTS IS DEPENDENT ON YOUR MOBILE OR COMPUTER DEVICE, DEVICE CARRIER, YOUR INTERNET SERVICE PROVIDER, YOUR HOME WIRING, YOUR WI-FI HARDWARE AND OTHER SOFTWARE AND HARDWARE THAT IS USED TO CONTROL THE LUMENTY SERVICE. YOU ACKNOWLEDGE AND AGREE THAT LUMENTY CANNOT BE HELD RESPONSIBLE FOR FEES AND CHARGES ASSOCIATED WITH THESE PRODUCTS AND SERVICES. THIRD-PARTY SOFTWARE, HARDWARE OR CONTENT YOU AGREE THAT LUMENTY CANNOT BE HELD RESPONSIBLE FOR SOFTWARE, HARDWARE OR CONTENT DEVELOPED BY THIRD PARTIES THAT INTERACTS WITH THE LUMENTY SERVICE. IT IS YOUR RESPONSIBILITY TO READ AND ACCEPT ANY THIRD PARTY USER LICENSING AGREEMENTS.

10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT SHALL LUMENTY OR ANY OF ITS SUBSIDIARIES, AFFILIATES, PARTNERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL OR OTHER DAMAGES RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE LUMENTY WEBSITE, LUMENTY APP, LUMENTY PRODUCTS, LUMENTY TECHNOLOGY, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY Lumenty, EVEN IF LUMENTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT TO THE EXTENT SUCH DAMAGES ARISE DIRECTLY AND SOLELY FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF LUMENTY, AND (II) IN NO EVENT SHALL LUMENTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE AGREEMENT EXCEED (A) THE FEES PAID TO LUMENTY BY YOU HEREUNDER WITH RESPECT TO THE APPLICABLE Lumenty PRODUCT PURCHASED BY YOU GIVING RISE TO THE CLAIM OR LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100.00), IF YOU HAVE PAID NO FEES TO LUMENTY HEREUNDER.

11. APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Sections 9 and 10 above may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer.  The limitations or exclusions of warranties and remedies contained in these Terms shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.

12. BASIS OF THE BARGAIN. The warranty disclaimer and limitation of liability set forth above in Section 9 and 10 are fundamental elements of the basis of the agreement between Lumenty and you.  Lumenty would not be able to provide the Services on an economic basis without such limitations.  The warranty disclaimer and limitation of liability inure to the benefit of Lumenty’s suppliers.

13. AVAILABILITY OF THE SERVICES. Information describing the Services is accessible worldwide but this does not mean the Services or certain portions thereof are available in your country. Lumenty may restrict access to the Services or portions thereof in certain countries. It is your responsibility to make sure its use of the Services is legal in your country of residence. The Services may not be available in all languages. If at Lumenty’s reasonable determination, you use the Services or any other material or services provided by Lumenty under the Agreement in a manner that violates laws, creates an excessive burden or potential adverse impact on Lumenty’s systems, in addition to any of its other rights or remedies, Lumenty may, without liability to Lumenty, immediately suspend or terminate your access to the Services.

14. EXPORT CONTROL. You may not use or otherwise export or re-export the Lumenty Service (or any aspect thereof) except as authorized by United States law and the laws of the jurisdiction in which the Lumenty Service was obtained. In particular, but without limitation, the Lumenty Service may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list.

15. GOVERNING LAW AND DISPUTE RESOLUTION  

15.1. Governing Law. The Agreement will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from the Agreement, including, without limitation, application to the Lumenty App, or any software and services provided hereunder.  Furthermore, the Agreement (including without limitation, the Lumenty App and any software and services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.

15.2. Disputes.  Except as otherwise set forth in the Agreement, you agree that any dispute between you and Lumenty arising out of or relating to the Agreement, the Services, or any other Lumenty products or services (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.

15.3. Informal Resolution. Before resorting to formal dispute resolution in accordance with this Section, you agree to first contact us directly at support@lumenty.com to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, you or Lumenty may institute arbitration in accordance with the procedures set forth in this Section.

15.4. Dispute Resolution. Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 15.3 above shall be resolved exclusively through final, binding and confidential arbitration and shall take place in San Francisco, California unless otherwise mutually agreed to by the parties. The arbitration shall be conducted under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (AAA) as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction.

15.5. Opting-Out of Arbitration. YOU MAY OPT-OUT OF THE AGREEMENT TO ARBITRATE BY PROVIDING LUMENTY WRITTEN NOTICE WITHIN THIRTY (30) DAYS OF FIRST ACCEPTING THESE TERMS.  YOUR NOTICE MUST INCLUDE: (I) YOUR FULL NAME (FIRST AND LAST); (II) THE EMAIL ADDRESS YOU USED TO REGISTER YOUR LUMENTY ACCOUNT OR PURCHASE THE LUMENTY PRODUCTS; AND (III) A CLEAR STATEMENT THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE.

15.6. Exception to Arbitration. Notwithstanding anything in the Agreement to the contrary to the extent you have in any manner violated or threatened to violate any of Lumenty’s intellectual property rights, Lumenty may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts

15.7. No Class Actions. You may only resolve Disputes with Lumenty on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN'T ALLOWED UNDER THE AGREEMENT.

15.8. Venue and Waiver of Jury Trial.In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Lumenty agree that any judicial proceeding will be brought in the federal or state courts of San Francisco, California. Both you and Lumenty consent to venue and personal jurisdiction there. YOU AND LUMENTY BOTH AGREE TO WAIVE ANY RIGHT EITHER PARTY MAY HAVE TO A JURY TRIAL.

15.9. Time Limitation to Bring Claims. Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Services must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.

16. GENERAL. Neither the rights nor the obligations arising under the Agreement are assignable by you, and any such attempted assignment or transfer shall be void and without effect.  Any waiver of any provision of the Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by the Agreement shall not be deemed a waiver of that right.  If any term or provision of the Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from the Agreement and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in the Agreement. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in the Agreement and its performance shall be construed as creating a joint venture or agency between Lumenty and you.  Lumenty may delegate the performance of any services hereunder to its affiliates and contractors. These Terms, the Privacy Policy, the Developer Terms, the Additional Terms and any other policies or terms and condition referenced herein, constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to you may be provided by email. The headings of Sections of the Agreement are for convenience and are not to be used in interpreting the Agreement.  As used in the Agreement, the word “including” means “including but not limited to.” You agree that the Agreement will not be construed against Lumenty by virtue of having drafted them. The official text of the Agreement (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that the Agreement be drawn up in the English language only. Les parties reconnaissent qu’elles ont exigé que la présente convention soit rédigée en language anglaise seulement. In the event of any dispute concerning the construction or meaning of the Agreement, reference will be made only to the Agreement as written in English and not to any translation into another language.  Any delay in performance of any duties or obligations of either party will not be considered a breach of the Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.

17. QUESTIONS AND ADDITIONAL INFORMATION. Please feel free to contact us at support@lumenty.com if you have any questions about these Terms.

© 2018 Lumenty Technologies, Inc. All rights reserved.

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