Terms of Use

 

Last revised: February 27, 2018

 

LUMALANES TERMS AND CONDITIONS

 

PLEASE READ THE FOLLOWING CAREFULLY.  THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AS AN END USER (AS DEFINED BELOW) ("END USER" OR "YOU") AND LUMALANES LLC (“LUMALANES” OR "WE").  THESE TERMS AND CONDITIONS, TOGETHER WITH ALL AMENDMENTS, AND COLLECTIVELY WITH ALL LUMALANES RULES AND POLICIES, INCLUDING THE LUMALANES PRIVACY POLICY, CONSTITUTE THE "AGREEMENT" BETWEEN YOU AND LUMALANES REGARDING YOUR ACCESS TO AND USE OF THE LUMALANES WEBSITE ("WEBSITE"), THE LUMALANES MOBILE DEVICE APPLICATION ("MOBILE DEVICE APP"), AND ATTENDANT SERVICES PROVIDED BY LUMALANES ("SERVICES") (COLLECTIVELY, "TRAINING SYSTEM").

IF YOU ACCESS OR USE ANY PART OF THE TRAINING SYSTEM, YOU INDICATE YOUR ACCEPTANCE OF THE AGREEMENT.  IF YOU HAVE NOT READ THE AGREEMENT, DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THE AGREEMENT, OR ARE NOT ABLE TO CONSENT TO BE BOUND BY THE AGREEMENT (E.G., IF YOU ARE NOT OLD ENOUGH TO ENTER INTO A BINDING LEGAL CONTRACT), DO NOT USE THE TRAINING SYSTEM.

 

1.            Scope and Acceptance

Anyone who accesses or uses any part of the TRAINING SYSTEM is an "End User."  The Agreement sets forth your rights and obligations as an End User with respect to your access to and use of the TRAINING SYSTEM and use of any and all information or data of any kind arising from access to, or use of, the TRAINING SYSTEM, including, without limitation, any text, graphics, images, art work, sound recordings, audio, video, and software.

We reserve the right, in our sole discretion, to change this Agreement (including the Privacy Policy) from time to time, without prior notice.  You are responsible for reviewing the Agreement regularly.  Your access to any part of the TRAINING SYSTEM is deemed to be your acceptance of this Agreement, and any changes thereto.

If you are accessing or using any part of the TRAINING SYSTEM on behalf of any business, organization, or other entity of any kind, you represent and warrant that you are authorized (a) to accept these terms on its behalf and (b) to bind such business, organization, or entity to the Agreement.

 

2.            Privacy Policy

Please see our Privacy Policy for a detailed description of how we collect, use, and disclose information about our End Users.

 

3.            Description of the TRAINING SYSTEM

LUMALANES is the provider of a TRAINING SYSTEM that permits registered End Users set up training workouts using our Wifi enabled controller box, and one or more LED light strips that are placed at the bottom of a swimming pool.  More specifically, an End User can register to use the TRAINING SYSTEM as an athlete or a coach.

You agree that when you register and create an account to use the TRAINING SYSTEM that all the account information you provide is accurate, current, and complete, and that you will maintain such account information as accurate, current, and complete as long as you access and use the TRAINING SYSTEM.

 

4.            Operation and Fees

The specific features and functionality of the TRAINING SYSTEM are dynamic and may change from time to time.  We reserve complete discretion with respect to the operation of the TRAINING SYSTEM, and the right to change terms without notice.  We also reserve the right to withdraw, suspend, or discontinue any functionality or feature of the TRAINING SYSTEM at any time.

End Users are required to purchase a TRAINING SYSTEM in order to be able to activate a Mobile Device App  to operate our hardware components (such as the wifi-enabled controller box and the LED light strips).  Unless otherwise expressly provided, paid users will purchase a TRAINING SYSTEM, and are not entitled to any new hardware upgrades or improvements.  LUMALANES may, from time to time, provide upgrades of mobile device software or firmware software to upgrade the wifi-enabled controller box at no additional charge to an end user..  We will make commercially reasonable efforts to prominently display and explain all applicable fees and payments.  The fee and payment policy may change at any time and from time to time in our sole discretion.  Unless otherwise expressly provided, fees are payable in advance and are refundable within the first 30 days of purchase, at the sole discretion of LUMALANES.  We reserve the right to suspend or terminate an account and to delete all data and content associated with an account for failure to pay timely any fees associated with such account.  We may contract with one or more third parties to facilitate the processing of fees and payments.

You agree that LUMALANES may review and modify the fees charged and payments made in any transaction, in its sole discretion, based on any complaint or report of special circumstances concerning a transaction.

LUMALANES may make promotional offers with different features and different rates for products and services offered through the TRAINING SYSTEM. These promotional offers, unless made to you, shall have no bearing whatsoever on your access to and use of the TRAINING SYSTEM.

 

5.            LUMALANES Disclosures and Disclaimers

By using the TRAINING SYSTEM, you acknowledge and agree to the following disclosures and disclaimers about LUMALANES and the TRAINING SYSTEM:

(a)          LUMALANES is not responsible for and does not guarantee the performance of End Users using the TRAINING SYSTEM;

(b)          LUMALANES is not responsible for the actions or omissions of End Users using the TRAINING SYSTEM such as, for example and without limitation, the selection of a coach by an athlete, the services provided by a coach to an athlete, or those other actions and omissions comitted to the discretion and judgment of athletes and coaches;

(c)           LUMALANES does not verify the data or other content input into the TRAINING SYSTEM by End Users and makes no representation or warranty regarding the integrity, credibility, or reliability of such data or other content, or the integrity, credibility, or reliability of any analysis based on such data or other content; and

(d)          Any guidance provided or suggested by LUMALANES, through the TRAINING SYSTEM or otherwise, that may be interpreted as relating to physical fitness is purely informational in nature and should not be substituted for an athletic training professional's or healthcare provider's professional judgment.  None of the content on the TRAINING SYSTEM should be interpreted as medical advice, and LUMALANES is not an athletic training professional or healthcare provider.  LUMALANES DISCLAIMS, AND YOU RELEASE LUMALANES FROM, ANY AND ALL LIABILITY RELATING TO PERSONAL INJURY, MEDICAL MALPRACTICE, OR OTHER CLAIMS RELATING TO ATHLETIC TRAINING, MEDICAL CARE, AND HEALTHCARE SERVICES.

 

6.            Inaccuracies

We disclaim and you release us from any liability regarding errors, inaccuracies, and omissions of the TRAINING SYSTEM, specifically regarding (though not in any way limited to) information provided to us by End Users.  We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice.  LUMALANES makes no guarantees whatsoever as to the completeness, timeliness, correctness, or accuracy of the materials or data available through the TRAINING SYSTEM.  If you believe any portion of the TRAINING SYSTEM includes an error or inaccuracy, please notify us.

 

7.            Permitted Use

Certain LUMALANES materials provided through the TRAINING SYSTEM are protected by intellectual property laws, including but not limited to U.S. copyright laws.  You expressly acknowledge and agree that the content accessible through the TRAINING SYSTEM that is not expressly designated as being provided by another End User is the property of LUMALANES and its content providers, and LUMALANES and its content providers retain all right, title, and interest in the content.

Subject to the terms of this Agreement, you are granted a limited, personal, non-exclusive, non-sublicensable, non-assignable, non-transferable, and revocable license to access and use the TRAINING SYSTEM and related materials solely for your own use.  Except as expressly provided, all rights are reserved.  You are permitted to download, install, and use the MOBILE DEVICE APP solely to access and use the other parts of the TRAINING SYSTEM in compliance with the Agreement.  You are responsible for downloading the correct MOBILE DEVICE APP for your device and for verifying the compatibility of the MOBILE DEVICE APP with your device.

In connection with the use of the TRAINING SYSTEM, you may not:

(a)          alter or modify the TRAINING SYSTEM, or make any electronic reproduction, adaptation, distribution, performance, or display of the TRAINING SYSTEM, or any portion thereof, except to the extent required for the limited purpose of reviewing material on the TRAINING SYSTEM; or

(b)          sell, rent, lease, transfer, distribute, broadcast, display, provide, or otherwise assign to any third party any rights to the TRAINING SYSTEM, or related materials; or

(c)           remove or modify any proprietary notice or labels on the TRAINING SYSTEM, or related materials, including author attribution and copyright notices, or use any of our trademarks as meta-tags on any other website; or

(d)          use the TRAINING SYSTEM for any non-authorized purpose or any illegal purpose; or

(e)          copy, modify, erase, or damage any information contained on computer servers used or controlled by LUMALANES or any third party; or

(f)           use the TRAINING SYSTEM to violate any legal right of any third party, including any publicity or privacy right, copyright, or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful, or otherwise objectionable; or

(g)          access or use any password-protected, secure, or non-public areas of the TRAINING SYSTEM, or access data on the TRAINING SYSTEM not intended for you, except as specifically authorized by LUMALANES; or

(h)          impersonate or misrepresent your affiliation with any person or entity; or

(i)            use any automated means to access or use the TRAINING SYSTEM, including scripts, bots, scrapers, data miners, or similar software, or display the TRAINING SYSTEM, or portions thereof, in things (e.g., framing, scraping, etc.), without our express written permission; or

(j)           attempt to or actually disrupt, impair, interfere with, alter, or modify the TRAINING SYSTEM, or any information, data, or materials posted and/or displayed by LUMALANES; or 

(k)          attempt to probe, scan, or test the vulnerability of the TRAINING SYSTEM or breach any implemented security or authentication measures, regardless of your motives or intent; or

(l)            attempt to interfere with or disrupt access to or use of the TRAINING SYSTEM by any user, processor, host, or network, including, without limitation, by submitting a virus, worm, Trojan horse, or other malicious code; or

(m)         post any content to the TRAINING SYSTEM that: (i) includes any profane, obscene, defamatory, discriminatory, threatening, menacing, harassing, or violent content; (ii) depicts or suggests nudity or sexual acts; (iii) promotes hatred, including against members of a protected group under federal, state, or local law (such as, for example, a group defined by race, gender, or national origin); (iv) is objectively shocking or disgusting; (v) depicts or suggests presently occurring illegal activity; (vi) includes unlicensed proprietary content of a third party, including, e.g., third-party content protected by copyright or trademark for which you do not have a license; (vii) breaches any duty of confidentiality you may have to a third party (e.g., discloses private information about a third party without consent); or (viii) is contrary to the Agreement, including LUMALANES's rules and policies. 

LUMALANES may suspend or terminate your account and your access to and use of the TRAINING SYSTEM at any time in its sole discretion and for any reason, including any breach of the Agreement.

 

8.            Third Party Properties

The TRAINING SYSTEM may refer you to physical venues, geographical sites, websites on the Internet, and/or products or services that are owned, under the control of, or maintained by a third party (including, for example, another End User) ("Third Party Properties").  Unless expressly stated to the contrary, such references do not constitute an affiliation with or endorsement by LUMALANES of any such Third Party Properties.  You acknowledge that LUMALANES is providing any references to such Third Party Properties to you solely as a convenience to you, and you agree that LUMALANES is not responsible for any injury, harm, damages, or negative experience you may encounter by accessing, visiting, or using such Third Party Properties.  LUMALANES does not endorse or make any representations about any Third Party Properties.  If you access, visit, or use any Third Party Properties referred to through the TRAINING SYSTEM, you do so at your own risk. 

 

9.            Availability of the TRAINING SYSTEM

It is not possible to operate the TRAINING SYSTEM with 100% guaranteed uptime.  LUMALANES will make reasonable efforts to keep the TRAINING SYSTEM operational.  However, certain technical difficulties, routine site and software maintenance and upgrades, and other events may, from time to time, result in interruptions to or outages of the TRAINING SYSTEM.  In addition, LUMALANES reserves the right at any time, and from time to time, to modify or discontinue (on a temporary or permanent basis) certain functions of the TRAINING SYSTEM, with or without notice. 

You agree that LUMALANES shall not be liable to you or to any third party for any direct or indirect consequence of any modification, suspension, discontinuance of, or interruption to the TRAINING SYSTEM.

 

10.          Disclaimer of Warranties

YOU EXPRESSLY AGREE THAT ACCESS TO AND USE OF THE TRAINING SYSTEM ARE AT YOUR SOLE RISK.  THE TRAINING SYSTEM IS PROVIDED ON AN "AS IS" AND AN "AS AVAILABLE" BASIS.  EXCEPT FOR THOSE WARRANTIES MADE AND EXPRESSLY IDENTIFIED AS WARRANTIES BY LUMALANES, LUMALANES DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING (A) THE TRAINING SYSTEM; (B) ANY PRODUCTS AND SERVICES OFFERED THROUGH THE TRAINING SYSTEM, OR ANY PORTION THEREOF; AND (C) THE ACTS OR OMISSIONS OF END USERS OF THE TRAINING SYSTEM, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE.  LUMALANES MAKES NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS, OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE TRAINING SYSTEM ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY.  LUMALANES ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE TRAINING SYSTEM WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO AND USE OF THE TRAINING SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE WILL BE SECURE.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

 

11.          Release and Limitation of Liability

IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE END USERS, YOU RELEASE LUMALANES (AND OUR OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL LUMALANES OR ANY OF ITS AFFILIATES OR SUPPLIERS (INCLUDING ANY OF ITS OR THEIR PARTNERS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, OR ASSIGNEES)  BE LIABLE TO YOU (INCLUDING ANY OF YOUR PARTNERS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, OR ASSIGNEES) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, EQUITY, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), NOR FOR ANY DAMAGES ARISING FROM DELAY, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO DATA, INTERRUPTION IN USE OR AVAILABILITY OF DATA, LOSS OF USE OF MONEY OR USE OF PRODUCTS, LOST PROFITS, REVENUE OR SAVINGS (ACTUAL OR ANTICIPATED), OR OTHER ECONOMIC LOSS ENSUING FROM OR IN CONNECTION WITH (A) THE TRAINING SYSTEM; (B) ANY PRODUCTS AND SERVICES OFFERED THROUGH THE TRAINING SYSTEM, OR ANY PORTION THEREOF; OR (C) ANY ACTS OR OMISSIONS OF END USERS OF THE TRAINING SYSTEM, EVEN IF LUMALANES OR ANY OF ITS AFFILIATES OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF LUMALANES AND ITS AFFILIATES AND SUPPLIERS (INCLUDING ANY OF ITS OR THEIR PARTNERS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, AND ASSIGNEES) TO YOU EXCEED THE GREATER OF (A) THE AMOUNT OF FEES PAID OR PAYABLE TO LUMALANES BY YOU UNDER THIS AGREEMENT, AND (B) ONE HUNDRED U.S. DOLLARS ($100).  THIS LIMITATION ON THE AMOUNT OF LIABILITY SHALL APPLY WHETHER A CLAIM OR LIABILITY ARISES IN CONTRACT, EQUITY, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), AND EVEN IF LUMALANES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR LIABILITY.  THIS LIMITATION SHALL SPECIFICALLY SURVIVE A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS AGREEMENT.

 

12.          Indemnity

YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS LUMALANES, ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ALL CLAIMS, DEMANDS, LAWSUITS, DAMAGES, LIABILITIES, LOSSES, COSTS, OR EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE FEES AND DISBURSEMENTS OF COUNSEL AND COURT COSTS), JUDGMENTS, SETTLEMENTS, AND PENALTIES OF EVERY KIND ARISING FROM OR RELATING TO ANY VIOLATION OF THIS AGREEMENT BY YOU AND ANY ACT OR OMISSION BY YOU RELATING TO YOUR USE OF THE TRAINING SYSTEM.

 

13.          Term and Termination

Unless otherwise expressly provided, end users will purchase the latest version of our TRAINING SYSTEM.  We reserve the right to suspend or terminate an account, and to delete all data and content associated with that purchase, for failure to pay timely any fees associated with such a purchase.  Purchases that do not require a fee shall have a term that continues until terminated by you or by us according to the Agreement, including as provided below.

You agree that LUMALANES may, in its sole discretion and without prior notice, terminate your access to or use of the TRAINING SYSTEM or any part of the TRAINING SYSTEM at any time and for any reason, with or without cause.  In the event that LUMALANES terminates your access to or use of the TRAINING SYSTEM or a part of the TRAINING SYSTEM because of account inactivity or because LUMALANES has made a decision to discontinue providing the TRAINING SYSTEM or a part of the TRAINING SYSTEM, LUMALANES will use commercially reasonable efforts to notify you reasonably in advance prior to termination.  In the event that LUMALANES terminates your access to or use of the TRAINING SYSTEM or a part of the TRAINING SYSTEM due to your breach of the Agreement, including your failure to pay fees, LUMALANES reserves the right to terminate immediately and you may not receive notice prior to such termination.  All data and content associated with an account that is terminated is subject to deletion by LUMALANES following termination.  If you believe your access to or use of the TRAINING SYSTEM has been terminated in error, please notify us as soon as possible.

You also agree that any violation by you of the Agreement will constitute an unlawful and unfair business practice that will cause irreparable harm to LUMALANES for which monetary damages would be inadequate.  You consent to LUMALANES's obtaining any injunctive or equitable relief that LUMALANES deems necessary or appropriate in such circumstances, without the need for a bond.  These remedies are in addition to any other remedies LUMALANES may have at law or in equity. 

 

14.          Intellectual Property Infringement by End Users

We expect End Users to respect the intellectual property rights of others.  We may remove material that appears in our sole discretion to infringe upon the intellectual property rights of others.  If you believe a work protected by a U.S. copyright you own has been posted on the TRAINING SYSTEM without authorization, you may notify our copyright agent, and provide the following information:

(a)          a physical or electronic signature of the person authorized to act on behalf of the copyright owner;

(b)          identification of the copyrighted work or works claimed to have been infringed;

(c)           a detailed description of the material you claim is infringing, together with information sufficient to enable us to locate it, including the URL or other description of where the infringing material appears;

(d)          your name, mailing address, telephone number and e-mail address;

(e)          a statement by you that you believe in good faith that the copyrighted material identified is being used in a manner that is not authorized by the copyright owner, its agent or the law; and

(f)           a statement by you that the above information is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright allegedly infringed.

To notify LUMALANES of a claimed copyright infringement, please contact:

Chief Operating Officer

LUMALANES LLC

3582 Sunflower Rd

Bozeman Mt, 59715

E-mail:support@LUMALANES.com

 

15.          General

 

15.1        Modifications

At any time and in LUMALANES's sole discretion, we may add, delete, or modify the Agreement.  We will use commercially reasonable efforts to publish to you any revised portion of the Agreement, for example, by publishing the latest version of these terms and conditions at this URL.  Should you deem any such addition, deletion, or modification to the Agreement unacceptable, you shall stop accessing and using the TRAINING SYSTEM.  All changes to the Agreement shall be effective immediately.

 

15.2        Access and Use Where Prohibited

Access to and use of the TRAINING SYSTEM are unauthorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation this Section.

 

15.3        Operation of the TRAINING SYSTEM from the United States of America

By accessing and using the TRAINING SYSTEM, you acknowledge and agree that LUMALANES controls and operates all parts of the TRAINING SYSTEM from its offices in the United States of America and that the TRAINING SYSTEM is intended for use by End Users located in the United States of America.  Unless expressly stated to the contrary, LUMALANES makes no representation that the TRAINING SYSTEM is appropriate or will be available for use in other locations.  Unless otherwise explicitly stated, all marketing or promotional materials found on or accessible through the TRAINING SYSTEM are solely directed to individuals, companies, or other entities located in the United States of America.  LUMALANES reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or service to any person or geographic area.  Any offer for any feature, product, or service made on or through the TRAINING SYSTEM is void where prohibited.  If you access or use the TRAINING SYSTEM from outside the United States of America, you are entirely responsible for compliance with applicable local laws and other applicable laws.  You may not use any portion of the TRAINING SYSTEM in violation of applicable export laws and regulations.

If you purchase the TRAINING SYSTEM for usage outside the United States, you acknowledge and agree that your information may be transferred to and maintained on computers and servers located outside of your state, province, country, or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction.  Your consent to the Agreement followed by your submission of such information represents your agreement to the transfer of such information to the United States and the collection, use, and disclosure of your information in accordance with United States law and our Privacy Policy.

 

15.4        Applicable Law and Venue

Any action related to the Agreement will be governed by the law of the State of Texas, without regard to the choice or conflicts of law provisions of any jurisdiction. 

 

15.5        Dispute Resolution

LUMALANES intends to resolve any and all disputes that may arise among it and its End Users in a cost-effective and non-disruptive manner. 

You agree to the following dispute resolution procedure for disputes arising between you and LUMALANES.  If you are unable to resolve any dispute in the ordinary course of business, you shall send a written notice to LUMALANES in which you outline the issues in dispute, enclose any relevant documents, and state the requested relief.  LUMALANES shall respond within ten (10) business days with identical information from its perspective.  You and a representative of LUMALANES shall meet or communicate electronically within ten (10) business days of the delivery of the response, and as often as you and LUMALANES mutually deem necessary or desirable thereafter, in an attempt to resolve the matter.  If, within sixty (60) days of the first communication, you and LUMALANES fail to resolve the matter, the dispute will be resolved exclusively by binding arbitration in accordance with the then-current Commercial Rules of the American Arbitration Association, provided that LUMALANES will have the right to petition any court of competent jurisdiction for the entry of injunctions and orders for specific performance relating to any alleged violation of intellectual property rights. You agree that you will not bring or be a party to any class-action lawsuit against LUMALANES. 

 

15.6        End User Submissions and End User's Grant of Limited Licensed

By communicating with LUMALANES, including submitting or sending content to us, you grant LUMALANES the royalty-free, unrestricted, world-wide, perpetual, irrevocable, non-exclusive, and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content (in whole or part), including any information, suggestions, ideas, drawings or concepts contained in such content, worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.  Such license includes incorporating the content, in whole or in part, into any feature of the TRAINING SYSTEM or other LUMALANES product or service.  You will remain responsible for the accuracy, copyright compliance, legality, decency, or all other aspects of such submitted material, including any content or part thereof, or other communication to LUMALANES.  You also warrant that any "moral rights" in such content are waived.

 

15.7        Force Majeure

In the event LUMALANES' performance of this Agreement, or any obligation hereunder, is prevented, restricted, or interfered with by reason of acts of God or of the public enemy, acts of the Government in its sovereign capacity, fires, floods, epidemic, strikes, picketing or boycotts, or any other circumstances caused by natural occurrences or third party actions beyond the reasonable control and without the fault or negligence of LUMALANES, LUMALANES shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction or interference. 

 

15.8        Miscellaneous

If any part of the Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.

No failure or delay in enforcing any provision, exercising any option, or requiring performance, shall be construed to be a waiver of that or any other right in connection with the Agreement.

No action arising out of this Agreement or your access to or use of the TRAINING SYSTEM, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) and you hereby waive any longer statute of limitations that may be permitted by law.

If LUMALANES does take any legal action against you as a result of your violation of the Agreement, LUMALANES will be entitled to recover from you, and you agree to pay, all reasonable attorneys' fees and costs of such action, in addition to any other relief granted to LUMALANES.  You agree that LUMALANES will not be liable to you or to any third party for termination of your access to or use of any part of the TRAINING SYSTEM as a result of any violation of the Agreement or for any reason at all.

You may not assign, by operation of law or otherwise, any rights or delegate any duties under the Agreement to any third party without prior written consent by LUMALANES.  Any purported assignment lacking such consent will be void at its inception.  LUMALANES may assign all or part of its rights and/or delegate all or part of its duties under the Agreement to any party, at any time, and in its sole discretion, upon notice of assignment by publishing such notice through the TRAINING SYSTEM.