Lavu, Inc. (“Lavu”) and/or its affiliates and subsidiaries (collectively, “Lavu” “we” or “us”’ or “our”) offer clients certain websites, software, applications, content, product, and services (“Lavu Products”) which may be branded Lavu, LavuPay, MenuDrive, Sourcery, or another brand owned or licensed by Lavu.
This Terms of Service Agreement (this “Agreement”) is a legal agreement between Lavu and you (“you,” “your”) governing the Lavu Products and their respective websites (or such other website(s) as we may designate from time to time) that we may currently or in the future provide or offer. To receive or use any of the Lavu Products, you must accept all of the terms of this Agreement. If you do not agree with these terms and do not want to be bound by this Agreement, you may not use, access, or order any of the Lavu Products.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR ANY OF THE LAVU PRODUCTS OR BY ACCESSING OR USING ANY OF THE LAVU PRODUCTS ON OUR WEBSITES, OR BY DOWNLOADING ANY OF THE LAVU PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THIS AGREEMENT IN ITS ENTIRETY ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT IN CONNECTION WITH SUCH ORDER, USE, DOWNLOAD OR ACCESS. YOU REPRESENT, COVENANT AND WARRANT THAT YOU HAVE THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT, AGREE AND ENTER INTO THIS AGREEMENT IN ITS ENTIRETY ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT. YOU REPRESENT, COVENANT AND WARRANT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO ACCEPT, AGREE AND ENTER INTO THIS AGREEMENT IN ITS ENTIRETY.
THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS AND REQUIRES BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. IF YOU SUBSCRIBE TO ANY OF THE LAVU PRODUCTS FOR A TERM (THE “INITIAL TERM”), THEN THIS AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT THE LAVU PRODUCT’S THEN-CURRENT FEES FOR SUCH LAVU PRODUCT UNLESS YOU OPT OUT OF THE AUTORENEWAL IN ACCORDANCE WITH SECTION BELOW OR UNLESS LAVU GIVES YOU NOTICE THAT IT HAS ELECTED NOT TO RENEW THIS AGREEMENT (IN ITS SOLE AND EXCLUSIVE DISCRETION).
“iOS” means Apple’s “iOS” operating system used on the iPad, iPod, iPhone or any other Apple-branded products.
“User Control Panel” means the control panel used to change settings and options for your User Account.
“User Account” means an account that is created that allows you to access one or more of the Lavu Products.
“Fees” means the fees paid for your continued use of any of the Lavu Products based on the subscription you select at the time you subscribe to any of the Lavu Products.
“Software License” means the software license between you and us to allow you to use one or more of the Lavu Products.
“Credit Card Gateway” means a third-party service that a you may choose to sign up with that handles the processing of credit card transactions.
“Account Activity” means the payments made to your User Account within the last 30 days; orders recorded by the Lavu Products in the last 30 days; and/or clock punches recorded in the last 30 days.
“Intellectual Property Rights” means all trademark, trade dress and service mark rights, patent rights, shop rights, mask work right, copyright rights, rights of publicity, goodwill, moral rights, trade secret rights and any and all other intellectual property rights as they may currently exist or exist in the future, and all applications thereof and registrations, renewals and extensions thereof, under the laws of any jurisdiction.
“Dispute” means a dispute or claim arising out of or relating to the Lavu Products, your User Account with one or more of the Lavu Products or this Agreement and these Terms of Service.
“User Content” means any content uploaded or changed by you, including but not limited to, text, photos, and other information.
“User Data” means any data created or modified from your use of one or more of the Lavu Products including but not limited to financial data, transaction data, order data, credit card signatures, and logs.
“Offline Credit Card Transactions” means encrypted credit card transaction information that is stored locally on an iOS device (or similar) when a network connection is unavailable.
The section headings contained in this Agreement are for reference purposes only and shall not in any way be used to construe meaning, intent or affect the interpretation of this Agreement.
To utilize any of the Lavu Products, you will need to create a User Account. During registration you will be asked for both your personal information and information regarding your business. The information that you submit to create your User Account must be complete, accurate and up to date. You must also keep the business and personal information in your User Account up to date during the term of the subscription (including any renewals). If you open a User Account for a company, organization or other entity, you represent, covenant and warrant that you are an authorized representative of the company, organization or other entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement in its entirety on the entity’s behalf. We reserve the right to suspend or terminate any User Account that fails to comply with the account registration requirements or that we find to contain information that is untrue, inaccurate, incomplete, or outdated. We reserve the right to suspend or terminate your User Account, revoke your Software License (as defined below) and delete all data associated with your User Account without prior notice if there has been no Account Activity in your User Account for a period of 180 days. You are responsible for all activities that occur under your User Account. You agree to immediately notify Lavu of any unauthorized use, or suspected unauthorized use of your User Account or any other breach of security or strange or unusual activity.
The Lavu Products may include software applications and web-based software. You must install any and all software application and web-based software updates to continue using the Lavu Products. From time to time older hardware or computer programs may no longer be compatible with the latest software applications and web-based software updates. It is your responsibility to upgrade any hardware or computer programs as needed to continue using the Services.
Lavu Products: In General
All of the Lavu Products are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue offering certain Lavu Products without prior notice. Prices for the Lavu Products are subject to change at any time, but changes will not affect any order for Lavu Products you have already placed. Lavu Products may be purchased or leased as indicated in your order.
Lavu Products: Title
Title for Lavu Products purchased from us passes to the purchaser at the time of delivery by Lavu to the freight carrier and you will be responsible for any Lavu Product loss or damage that occurs when the Lavu Product is in transit to you. Lavu or the applicable third-party financing/rental company approved by us (“Financing Partner”) retain title to any Lavu Products you lease or rent from us or the applicable Financing Partner, however, you remain responsible for any Lavu Product loss or damages that occurs when the Lavu Product is in transit to you. Our delivery charges and methods are as described on our website from time to time and are subject to change without prior notice.
Returns and Refunds
You may contact us at email@example.com to request a return of Lavu Products you purchased from us at any time within thirty (30) days of the order date. If we determine that you are eligible to return such Lavu Products, we will provide a return materials authorization (RMA) to you via email. Lavu will refund you the amount you paid for the returned Lavu Products (less applicable handling charges) provided that we receive such Lavu Products, including all Lavu Products items if the Lavu Products was purchased as part of bundle, freight prepaid by you in new or unused condition, in its original packaging, within ten (10) days of the date the RMA was emailed to you. Risk of loss or damage to the returned Lavu Products remains with you until received by us. You will bear the cost of freight and insurance of any returned Lavu Product. Except as otherwise expressly stated in this Agreement, we are under no obligation to refund any amounts you previously paid to us for any Lavu Products.
Leased or Financed Lavu Products
Leased or financed Lavu Products shall at all times remain the property of Lavu or our Financing Partner (the “Product Owner”). The Product Owner retains and you hereby grant to Lavu and the Product Owner, as applicable, a security interest in and to the leased Lavu Products. You agree to execute any and all documents and filings to perfect the same. You agree not to permit any third party (other than the Product Owner) to obtain any security interest, lien or other encumbrance on such leased or financed Lavu Products. You will promptly return, at your expense, such leased or financed Lavu Products to Lavu’s or the Product Owner’s designated address when the lease expires or this Agreement terminates. You bear all risk of loss or damage to the leased or financed Lavu Products. You will pay for the cost of replacing leased or financed Lavu Products if you do not return the leased or financed Lavu Product in good working order (normal wear and tear excepted) when the applicable rental, lease or subscription period expires or when this Agreement terminates.
Lavu Product Maintenance, Support, Repair or Replacement Services
Certain Lavu Products may be subject to our maintenance, support, repair or replacement services (including NDR defined below) as indicated in your order with us. Any parts or replacement Lavu Products provided to you hereunder shall not extend the original warranty period and may consist of a new, refurbished, used or functionally equivalent product. Our maintenance, support, repair or replacement services (including NDR) will not be provided with respect to: (i) Lavu Products that have been altered or modified by anyone who is not our authorized representative, (ii) damage caused by abuse, misuse, fire, failure to properly service and maintain, natural disasters or any other causes, (iii) Lavu Products that have been lost or stolen, or (iv) cosmetic damage, including but not limited to, scratches and dents, that do not otherwise affect the value or functionality of the Product.
Next Day Replacement Services
If you subscribe to our next day replacement Service (“NDR Service”) with respect to any Lavu Product, replacement orders received by us (i) on Monday-Friday before 5PM Eastern Time will be processed and shipped by us to you on the same business day for next business day delivery (next day Saturday shipments are subject to availability in your areas),and (ii) on Saturdays and Sundays will be processed and shipped by us to you on Monday (or the next business day), in most cases and subject to the availability of next day freight in your location. The foregoing processing and shipping times are estimates and exclude holidays and delays outside of our reasonable control (e.g., unusual storms or natural disasters, Lavu Product shortages, labor disruptions, freight carrier issues, or unavailability, etc.). You must comply with our generally applicable policies and procedures regarding NDR Service orders and must return any replaced Lavu Products in accordance with the Returns and Refunds Section above.
Mobile Devices and Third-Party Carriers
Use of your User Account requires compatible mobile devices and an internet connection that meets certain minimum speed requirements, which you are responsible for providing. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing any of our websites or using any of the Lavu Products or your User Account. You are responsible for determining the compatibility of any Lavu Product you order with other products and services you use. We are not liable for any required or necessary agreements with the mobile device provider or internet service provider and we do not warrant that any Lavu Product you ordered or the User Account will be compatible. Any mobile device that has been illegally altered or modified in any way is not a compatible device. You understand and accept that use of such a device is prohibited, a violation of the terms of this Agreement, and could result in the suspension or termination of your User Account.
Unauthorized, Improper or Illegal Use
If it is determined that your User Account has been used for potential or actual immoral, unsuitable, injurious, destructive, improper, illegal or criminal purposes you acknowledge and authorize us to share any information about you, your User Account, your use of any ordered Lavu Product and any other data deemed necessary or appropriate by us (in our sole and exclusive discretion) to the appropriate law enforcement agencies. In addition, you acknowledge and authorize us to share any information about you, your User Account, your use of any ordered Lavu Product and any other information or data requested by a third-party in response to answering or responding to a valid subpoena issued by a court or administrative agency. You are responsible for verifying that the Lavu Product that you ordered or your User Account and the functionality of such Lavu Product or User Account comply with all applicable laws, including but not limited to local, state, and federal laws, that may govern your use of the Lavu Product, or your User Account or the features contained within the Lavu Product, or your User Account. You agree that you will not use any Lavu Product, or your User Account or certain features contained within the Lavu Products, or your User Account, if it is not legal to do so in your location. Your use of any ordered Lavu Product, or your User Account and the features contained therein constitute your representation that such use and features do not violate any applicable local, state, or federal laws. You agree to fully and wholly indemnify and hold us harmless in any liability arising out of your use of any ordered Lavu Product, or your User Account or the features of any ordered Lavu Product, or your User Account in the event such use or features violate any applicable local, state or federal laws, and you agree not to pursue any damages or remedies against us relating to or arising out of the same. You are solely responsible for your use of any ordered Lavu Product, or your User Account and the features therein, and you agree that such use by you is a waiver of any claims you may have against us in the event such use, the ordered Lavu Product, or your User Account or the features of such Lavu Product, or your User Account violate any applicable local, state, or federal laws.
Accepting Credit Card Payments
We do not directly handle processing of credit card transactions. The Lavu Products simply facilitate transacting credit cards through integrated third-party Credit Card Gateway and Processing partners. By transacting credit cards through Lavu Products, you must agree to the terms and conditions set by the Credit Card Gateway and Processor being used.
You are responsible for verifying that your credit card batch is settled and that all amounts are correct on a daily basis. It is your responsibility to notify us immediately, if you notice a problem with authorizations, tip amounts, transacting payments, processing, batching, the settlement amount or any strange or unusual activity. Your failure to notify us of an error in authorizations, tip amounts, transacting payments, processing, batching, the settlement amount or any strange or unusual within seven (7) days of the date of a discrepancy, shall constitute a waiver of liability to us.
If you use the Lavu Products to process credit card transactions you represent, covenant and warrant that you have the funds available to pay the Credit Card Gateway, Processing partners or counterparties you selected to process the credit card transaction.
We are not liable for any damages if the error was caused by you, your misuse of the Lavu Products, or your User Account, or the Credit Card Gateway or Processor.
We may offer a feature that facilitates transacting Offline Credit Card Transactions with the Lavu Products, or your User Account. If you choose to utilize this feature you agree that we are not liable for any damages or losses from the use of this feature. The use of this feature is at your sole risk. To the maximum extent permitted by applicable law, this feature is provided on an “As Is” and “As Available” basis without any guarantee or warranty of any kind by us.
Fees do not include Taxes (as defined below), unless expressly indicated otherwise by us on an invoice. If any Lavu Products, or payments for any Lavu Products, under this Agreement are subject to Tax in any jurisdiction and you have not remitted the applicable Tax to us, you will be responsible for the payment of such Tax and any related penalties or interest to the relevant tax authority. You represent and covenant that you will indemnify us and our affiliates or subsidiary entities for any liability or expense we or our affiliates or subsidiary entities may incur in connection with such Taxes, including penalties, late charges or interest. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable Taxes. For purposes of this section, “Tax” or “Taxes” shall mean any and all sales, use, property, value added, or other transactional taxes, duties, levies or other amounts arising out of or related to your purchase, subscription to or use of any of the Lavu Products. Taxes do not include our income taxes in the United States of America. You agree to make all payments of Fees to us in United States dollars free and clear of, and without reduction for, any Taxes. All amounts payable to us will be grossed-up to the extent there is any legally required withholding so that we receive from you in United States Dollars the amount we contemplated. Any Taxes imposed on payments of Fees to us will be your sole responsibility, and you will provide us with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such Taxes have been paid by you.
In order to access or use the Lavu Products, or your User Account you agree to pay all Fees to us in accordance with our then current Fees found on the website for such ordered Lavu Product or as otherwise agreed in writing by us in an order with you. Except as set forth in this Agreement, all Fees are nonrefundable. We reserve the right to change the Fees for any subsequent subscription period upon notice to you. If you do not consent to the increase in the Fees, you will need to cancel your subscription. If you qualify for and obtain financing from one of our Financing Partners under our Financing Program, you will not have to pay us directly for the applicable Fees that were covered by the Financing Program during the designated term or rental or subscription period in your order with us. However, you will have to pay the Financing Partner in accordance with your separate agreement(s) with the Financing Partner, and the Financing Partner will have to pay us in accordance with our agreement with them. Your obligation to pay the Financing Partner is independent from these Terms of Service and survives any termination or expiration of this Agreement or these Terms of Service. Financing Partners are independent from us and we are not responsible for such Financing Partners and Financing Partners are not responsible for us.
By providing a credit card or other payment method, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to immediately charge your credit card or other payment method for all fees and charges due and payable to us hereunder and that no additional notice or consent is required. If the credit card or payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your use of any ordered Lavu Product may be suspended or terminated. In the event you want to change or update payment information associated with your User Account, you can do so at any time by logging into your User Account and editing your payment information.
Your subscription with us for any ordered Lavu Product will continue indefinitely until terminated in accordance with this Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at our then current price for such subscription. You agree that your subscription will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date by contacting Customer Care at 866-725-2158 or if we notify you that we are not renewing your subscription (in our sole and exclusive discretion). If you do not wish your subscription to renew automatically, or if you want to change or cancel your subscription, please contact Customer Care at 866-725-2158. You may not cancel your subscription prior to the end of your then current subscription term. If you cancel your subscription, you may use your subscription until the end of your then current subscription term; your subscription will not be renewed after your then current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then current subscription period. By subscribing, you authorize us (or our third-party payment processor) to immediately charge your credit card or payment method at the beginning of your initial subscription period, and again at the beginning of any subsequent subscription period.
You acknowledge and agree that we will charge all applicable fees and charges due to the credit card or other form of non-invoice payment method that you provided to us upon order placement and prior to shipment of any Lavu Products.
We may use third party service providers for payment services (e.g., credit card transaction processing, merchant settlement, and related services). Where applicable, you agree to be bound by such third-party payment processors’ terms and conditions in connection with such services. You hereby consent to provide and authorize us and any third-party payment processor to share any information and payment instructions you provide to the extent required to complete the payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information.
Some Lavu Products may offer a free trial period that starts when you create a User Account for such Lavu Product. After the trial period has expired, you will be required to provide your credit card or payment method and you will be charged any Fees applicable to your selected Lavu Product. We have no obligation to notify you when your free trial ends, and we reserve the right to modify or terminate free trials at any time, without notice and in our sole discretion. Details of any free trial period can be found on the website of such Lavu Product or as otherwise agreed in writing by us in an order with you.
We reserve the right to include and utilize tools, capabilities and methods in our software and applications to allow remote access to the devices or computers that contain the software or application or the computer network to which the devices or computers are connected. We may use this remote access functionality to log in to the devices or computers to monitor, modify, alter or otherwise manipulate the data on the remote device for the purpose of providing technical support and ensuring that the Services function as intended.
By accepting this Agreement, you acknowledge and accept that we will post disclosures and notices required by law and any other information deemed pertinent by electronic means to include on any of our websites that correspond to your ordered Lavu Product, via email, or in your User Account. For contractual purposes, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. These notices will be considered received after 24 hours of posting on the website that corresponds to your ordered Lavu Product, immediately upon transmission to your User Account, or notice via email and continued use of any of your ordered Lavu Products.
Where we require that you provide an email address, you are responsible for providing us with your most current email address. In the event that the last email address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, our dispatch of the email containing such notice will nonetheless constitute effective notice. You may give written notice to us at the following address: 201 3rd Street, Suite 600, NW, Albuquerque, NM 87102. Such notice shall be deemed given when received by us by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
You understand that you are able to upload or customize User Content and do so willingly without any obligation. You also agree that any User Content uploaded or customized is your own or you have explicit permission from the owner of the content to use it in connection with the ordered Lavu Products. You hereby grant, and you represent and warrant that you have the right to grant, to us a fully paid, royalty free, perpetual, irrevocable, worldwide, nonexclusive, and fully sublicensable license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (in whole or in part) for the purposes of including your User Content in the Lavu Products and operating, providing and promoting such Lavu Products.
We reserve the right to edit, modify or delete User Content at our discretion.
We may use any User Content for advertising or any other purposes.
We take no responsibility and are not liable for any loss or damage to User Content.
We reserve the right to edit, modify or delete User Data at our discretion.
We take no responsibility and are not liable for any loss or damage to User.
Copyright and Trademark Infringement
We respect and honor trademark and copyright rights of others and we ask that you do the same. Any valid notices of copyright or trademark infringement to us may be responded to with suspension or termination of an ordered Lavu Product of any User Account who violates the copyrights and trademarks of others.
We utilize policies, procedures, and technical measures to protect your personal information from accidental loss or malicious acquisition, use, alteration, or access. We cannot guarantee that unauthorized personnel will never be able to access your information by circumventing or breaking the measures in place to prevent such activity. Your acknowledgement of this Agreement represents your understanding that you provide your personal information at your own risk.
This Agreement commences on the date when you first use any of the ordered Lavu Products and continues for the subscription term you select from our then current offerings (e.g., monthly, annual), unless terminated earlier in accordance with this Agreement. The subscription term will automatically renew in accordance with this Agreement.
We may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to any ordered Lavu Products, any of our websites or to your User Account without any notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement.
Upon termination of this Agreement for any reason, you must immediately stop using all of your ordered Lavu Products and your license to use such Lavu Products provided under this Agreement shall end. Upon your termination of this Agreement, we will provide you with thirty (30) days to allow you to extract your User Content and User Data that we have stored on our servers as of the termination date. Subject to the foregoing sentence and applicable law and card association rule requirements, we will delete User Content and User Data stored on our servers upon your termination of this Agreement, and we will not be liable to you or any third party for termination of access to any of the ordered Lavu Products or deletion of your User Content and User Data.
Subject to this Agreement, we grant you a nontransferable, nonexclusive, without rights of sublicense, revocable, limited use license to use and access, solely for your own personal, noncommercial use (i) any Lavu Products that you ordered on any compatible device that you own or control, and (ii) the other aspects of Lavu Products. Furthermore, with respect to any Lavu Products accessed through or downloaded from the Google Play Store or Apple App Store (each an “App Store” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third party terms of the App Store (the “Usage Rules”) when using such Lavu Products. To the extent the terms of this Agreement provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies.
The rights granted to you in this Agreement are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit any Lavu Products or any leased or rented Lavu Products; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of any Lavu Products, except to the extent such restriction is prohibited by law; (iii) you agree not to access any Lavu Products in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of any Lavu Product may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Lavu Products or any of our other systems, devices or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to any Lavu Product or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any Lavu Products by means other than through the interface that is provided by us; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with any Lavu Products. Any future release, update, or other addition to functionality of any Lavu Product shall be subject to this Agreement.
You acknowledge and agree that the availability of the Lavu Products is dependent on the App Store from which you received the license. You acknowledge that this Agreement is between you and us and not with the App Store and that we, and not the App Store, are responsible for the Lavu Products and the content thereof. We are responsible for providing any maintenance and support services with respect to the Lavu Products and the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to any Lavu Product. We are solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of any Lavu Product to conform to any applicable warranty, you may notify the App Store, and the App Store may refund the purchase price for such Lavu Product to you; and to the maximum extent permitted by applicable law, the App Stores will not have any other warranty obligation whatsoever with respect to the Lavu Products, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility. You acknowledge that we, and not the App Store, is responsible for addressing any claims relating to the Lavu Products or your possession and/or use of the Lavu Products, including, but not limited to: (i) product liability claims; (ii) any claim that the Lavu Products fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third-party claim that the ordered Lavu Product infringe or your possession and use of such Lavu Product that third party’s intellectual property rights, we and not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that i) you 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 ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You agree to comply with, and your license to use the Lavu Products is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies and the Usage Rules) when using the Lavu Products. You acknowledge and agree that the App Stores and their subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, the App Stores will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
Ownership of Services
Except as otherwise noted in this Agreement or as otherwise agreed in writing by us in an order with you, Lavu Products are licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. This Agreement does not grant you any rights to our service marks or trademarks, or any other intellectual property rights. Lavu Products are protected by intellectual property laws, including but not limited to trademark, patent, trade secret and copyright laws. We own all Intellectual Property Rights in the Lavu Products. There are no implied licenses granted under this Agreement.
Any ideas, suggestions or comments submitted, including but not limited to ideas for new products or ways to improve the Lavu Products, is gratuitous and at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such feedback. You agree that we may use the feedback in any way and that you waive any right to any compensation or other benefit from our use of the idea.
You will indemnify, defend, and hold us, our officers, executives, agents, independent contractors, representatives and employees harmless from and against any and all claims, losses, damages, claims, judgments, penalties, interest, tax assessments, and expense arising from any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (ii) your use of, or inability to use any ordered Lavu Product; (iii) your violation of any law, rule or regulation of the United States or any other country; (iv) any person’s or entity’s access and/or use of any ordered Lavu Product with your unique username or password; (v) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights.
You may not use, export, import, or transfer any ordered Lavu Product except as authorized by U.S. law, the laws of the jurisdiction in which you obtained or use such Lavu Product and any other applicable laws. In particular, but without limitation, Lavu Products may not be exported or reexported (i) into any United States 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’s Denied Person’s List or Entity List. By using the Lavu Products you represent and warrant that (i) you 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that Lavu Products provided by us are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, reexport, or transfer any Lavu Product, either directly or indirectly, to any country in violation of such laws and regulations.
You represent and warrant to us that: (i) you are eighteen (18) years of age or older; (ii) you are eligible to register and use any ordered Lavu Product and have the power, ability, and right to enter into a perform under this Agreement; (iii) the name used to create the User Account is your name or the name of your business under which you will utilize your ordered Lavu Product; (iv) you will not, directly or indirectly, use any Lavu Product for illegal, immoral or fraudulent activity or to interfere with any Lavu Product; (v) your use of any Lavu Product will comply with this Agreement.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF ANY LAVU PRODUCT IS AT YOUR SOLE RISK AND THE LAVU PRODUCTS AND ANY CONTENT OR INFORMATION PROVIDED BY LAVU PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT ANY GUARANTEE OR WARRANTY OF ANY KIND, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NONINFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO ORAL OR WRITTEN INFORMATION OR ADVICE FROM LAVU/SOURCERY WILL CREATE A WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE LAVU PRODUCTS ARE RELIABLE, CORRECT, OR ACCURATE; THAT THE LAVU PRODUCTS ARE VIRUS FREE OR CONTAIN NO HARMFUL COMPONENTS OR CODE; THAT THE LAVU PRODUCTS WILL BE AVAILABLE AT ANY GIVEN TIME OR LOCATION, SECURE, OR UNINTERRUPTED; THAT THE LAVU PRODUCTS WILL MEET YOUR REQUIREMENTS; OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED. ANY DOWNLOADED CONTENT THROUGH THE USE OF THE LAVU PRODUCTS IS AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF INFORMATION THAT RESULTS FROM SUCH DOWNLOADS. IF PERMITTED IN OUR AGREEMENTS WITH THIRD-PARTY SUPPLIERS, WILL FLOW DOWN TO YOU ANY WARRANTIES APPLICABLE TO THE LAVU PRODUCTS PROVIDED BY SUCH THIRD-PARTY SUPPLIERS. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY LAVU PRODUCTS ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH OR IN CONNECTION WITH THE LAVU PRODUCTS (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY APPS, PRODUCTS AND SERVICES) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY.
Processing and Calculation Errors
You agree that we are not responsible for any monetary losses or damage that you may suffer while using the Lavu Products. It is your responsibility to verify that calculations made by the Lavu Products are correct and, if applicable, include the appropriate taxes, gratuities, and other fees.
Limitation of Liability
To the maximum extent permitted by applicable law, under no circumstances are we liable for any direct, indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for lost profits, goodwill, use, data, or other intangible losses, that result from the use of, inability to use, or unavailability of the Lavu Products you ordered. Under no circumstances will we be liable for any damage or loss resulting from hacking, tampering, or otherwise illegally tampering or using the Lavu Products you ordered, or your User Account, or the information contained therein. To the maximum extent permitted by applicable law, we assume no responsibility or liability for any (i) Any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (ii) any interruption or termination of communication to or from any Lavu Product; (iii) any bugs, viruses, worms, trojan horses, or the like that may be transmitted to or through any ordered Lavu Product; (iv) any errors or missing information in any content or data or for any loss or damage incurred as a result of the use of any content or data posted, emailed, transferred, transmitted, or otherwise made available through any ordered Lavu Products; (v) User Content or the defamatory, offensive, or illegal conduct of any third-party. This limitation of liability section applies regardless of whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if we have been advised of the possibility of such damages.
ACCESS TO, AND USE OF, THE LAVU PRODUCTS AND ANY WEBSITE OWNED OR OPERATED BY US IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE FEES PAID BY YOU TO US IN THE PRECEDING TWELVE (12) MONTHS OR (II) FIFTY U.S. DOLLARS (U.S. $50.00). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. IF YOU ARE NOT PAYING US DIRECTLY FOR A LAVU PRODUCT BECAUSE YOU ARE FINANCING THROUGH OUR FINANCING PARTNER AS DESCRIBED IN THESE TERMS OF SERVICE OR OUR ORDER WITH YOU, THEN CLAUSE (A) ABOVE WILL BE THE AMOUNT YOU WOULD HAVE PAID US HAD YOU NOT FINANCED THROUGH OUR FINANCING PARTNER AND PAID US DIRECTLY. YOU AGREE THAT NEITHER WE OR OUR SUPPLIERS, FINANCING PARTNERS, NOR OUR LICENSORS WILL HAVE ANY LIABILITY OF ANY KIND (WHETHER DIRECT OR INDIRECT) ARISING FROM OR RELATING TO THIS AGREEMENT.
IF YOU BECOME DISSATISFIED IN ANY WAY WITH ANY ORDERED LAVU PRODUCT OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF SUCH LAVU PRODUCTS. HOWEVER, THIS WILL NOT LIMIT YOUR OBLIGATION TO PAY AMOUNTS DUE OR PREVIOUSLY FINANCED OR ENTITLE YOU TO ANY REFUND.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LAVU/SOURCERY AND YOU AND IN SUCH JURISDICTIONS, THE LIABILITY OF LAVU IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
No Warranties or Liability for Beta-Testing of New Lavu/Sourcery Offerings
From time to time, we may request, and you may agree (at your sole discretion) to beta-test new Lavu Products that we intend to release (each, a “New Offering”). During the period when you are beta-testing a New Offering, you agree to: (i) Utilize the New Offering in the same manner in which you have used previous Lavu Products from us; (ii) Promptly notify us of any operational or other issues arising out of or related to your usage of the New Offering; and (iii) Make members of your staff reasonably available to assist us in trouble-shooting any operational, reporting, processing or other issues with a New Offering. You acknowledge and agree that we shall not be liable to you, your customers or other third-parties for consequential, exemplary, incidental, direct or indirect damages (including legal fees and expenses or cost of replacement) or loss of profits, data, goodwill or opportunities in connection with your beta-testing of a New Offering.
You further acknowledge and agree that there are no warranties (express, implied or statutory), including, without limitation, all warranties of merchantabilty, fitness for a particular purpose and any warranties arising from course of performance and that we do not warrant that any New Offering will be error-free, uninterrupted, virus-free or secure.
By agreeing to beta-test a New Offering, you fully and forever release and discharge us, all predecessors and successors, subsidiaries, affiliates, assigns, officers, directors, trustees, executives, agents and attorneys (past and present) from any and all claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, debts, costs, expenses, damages, judgments, orders and liabilities, of whatever kind or nature, direct or indirect, in law, equity or otherwise, whether known or unknown, arising out of or related to your beta-testing of such New Offering.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without restriction and without your consent. Any assignment or transfer in violation of the foregoing will be null and void.
Disputes & Arbitration
In the event that a dispute arises, you agree that you will contact our support department to give us the opportunity to resolve the dispute. Either party may request arbitration if your dispute cannot be resolved within 60 days after presenting the dispute to the other party. All disputes that cannot be resolved informally (excluding claims for injunctive or other equitable relief as set forth below) shall be resolved by binding arbitration on an individual basis under the terms of this Section. This Section applies to you and to us and our subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of Lavu Products or your User Account provided under this Agreement.
The arbitration of any Dispute shall be initiated through the American Arbitration Association and conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by this Agreement. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. The arbitration hearing will be held in Bernalillo County, New Mexico, and unless the parties jointly agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing.
The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any arbitration shall be confidential, and neither you, nor us nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. If any portion of this Section is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the American Arbitration Association.
Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our confidential information and intellectual property rights in any court of competent jurisdiction.
ALL DISPUTES MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, INSTEAD ELECTING THAT ALL CLAIMS AND DISPUTES SHALL BE RESOLVED BY ARBITRATION UNDER THIS SECTION. ARBITRATION PROCEDURES ARE TYPICALLY MORE LIMITED, MORE EFFICIENT AND LESS COSTLY THAN RULES APPLICABLE IN A COURT AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT. IN THE EVENT ANY LITIGATION SHOULD ARISE BETWEEN YOU AND LAVU IN ANY STATE OR FEDERAL COURT IN A SUIT TO VACATE OR ENFORCE AN ARBITRATION AWARD OR OTHERWISE, YOU AND LAVU/SOURCERY WAIVE ALL RIGHTS TO A JURY TRIAL, INSTEAD ELECTING THAT THE DISPUTE BE RESOLVED BY A JUDGE. IN ANY CIRCUMSTANCES WHERE THIS AGREEMENT PERMITS THE PARTIES TO LITIGATE IN COURT, THE PARTIES HEREBY AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE COURTS LOCATED WITHIN BERNALILLO COUNTY, NEW MEXICO, FOR SUCH PURPOSE AND WAIVE ANY ARGUMENTS FOR FORUM NON CONVIENS.
This Agreement shall be governed by and construed in accordance with the laws of the State of New Mexico, consistent with the Federal Arbitration Act, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Time to Initiate a Dispute
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AND LAVU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LAVU PRODUCTS OFFERINGS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Right to Amend
We reserve the right to alter or add to the terms of this Agreement at any time, and to delete, discontinue, change, or impose conditions at our sole discretion on any feature or function of any Lavu Product with or without notice that we determine to be reasonable in the circumstances, including such notice on any of our websites owned, operated or maintained by us for the purposes of providing information about a Lavu Product in terms of this Agreement. Any use of your ordered Lavu Product after our publication of any changes shall constitute your acceptance of this Agreement as modified.
Third-Party Products and Services
Lavu Products may contain links to third-party websites and applications and advertisements for third parties (collectively, “Third-party Websites, Applications & Ads”). When you click on a link to a third-party website, application or ad, we will not warn you that you have left our website or a Lavu Product and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-party Websites, Applications & Ads are not under our control and we are not responsible for any Third-party Websites, Applications & Ads.We provide these Third-party Websites, Applications & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-party Websites, Applications & Ads, or their products or services. You use all links in Third-party Websites, Applications & Ads at your own risk. When you leave Lavu Products, this Agreement no longer governs. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-party Websites, Applications and Ads, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 9525210.
Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Force Majeure. We shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to this Agreement or any Lavu Products, please contact us at: Lavu, Inc. 2632 Pennsylvania St NE, Ste. D, Albuquerque, NM 87110 (866)7252158 or at the contact information noted on the website for the Lavu Product that you ordered. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
All provisions of this Agreement which by their nature should survive, shall survive termination of this Agreement, including without limitation, ownership provisions, warranty disclaimers, limitation of liability and the arbitration agreement.