Terms and Conditions
Terms and Conditions
Last Updated: August 17, 2020
Welcome, and thank you for your interest in Lubn, Inc. (“Lubn,” “we,” or “us”) and our website at www.lubn.com, along with our related websites, networks, software applications, and hardware product and accessories. These Terms and Conditions are a legally binding contract between you and Lubn regarding your purchase of any product from Lubn and your use of the Service (defined below).
Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND LUBN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
1. LUBN OVERVIEW
Lubn makes available a wireless hardware product known as the LubnBox (referred to as the “Product” in these Terms). To order a Product, you must register for an account and connect to our service, which enables you to remotely grant visitors permissions to access the key(s) of your property during a specific time period, to view the access log, to receive notices of the visitors' check-in/out activities, to automatically remind the visitors of their schedules, and to view the basic status of the Product, along with other features that Lubn may add from time to time (collectively, the “Service”). Together, the Product and service can provide an easy, seamless property management solution.
You must be at least 18 years old to purchase Products and use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. ACCOUNTS AND REGISTRATION.
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information, as well as at least one valid payment method supported by Lubn. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at email@example.com.
4. USE OF THE PRODUCT AND SERVICE.
You represent that each Product you purchase is for your own use and not for resale. Use of the Product may be subject to local laws, regulations, and ordinances in your jurisdiction. You are responsible for complying with all applicable laws. It is your responsibility to determine whether your use of the Product complies with local laws, regulations, and ordinances. You must also use each Product in accordance with the Lubn User Guide provided together with the Product. The Product will not work without cellular data services via Lubn’s contracted carrier and an account on the Service. Use of the Service is subject to these Terms. If you violate the Terms, you may not be able to use the Product or certain features of the Service. Lubn will not be liable for your inability to use the Product or Service.
6. GENERAL PURCHASE AND PAYMENT TERMS.
- 6.1 Availability. Purchases of the Product are subject to estimated availability as described on the Lubn website at the time that you place your order and updated from time to time via communications on https://lubn.com/store.html or through email.
- 6.2 Customer Location. Lubn will only accept orders from billing and shipping addresses located within the United States.
- 6.3 Pricing. Lubn reserves the right to determine pricing for the Product and Service, as well as charges for shipping the Product. Lubn will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Lubn, at its sole discretion, may make promotional offers with different features and different pricing to any of Lubn’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms. Except in the case of sales tax for certain locations which are identified when payment is taken, all import duties, taxes, tariffs, and other charges are not included in the Product price or shipping costs. These charges are your responsibility. All orders for the Product must be paid in full, including shipping, prior to delivery by Lubn of the Product to you. Lubn reserves the right to suspend delivery and performance until full payment is received.
- 6.4 Shipping Charges. We list shipping charges on our website, and you must pay all shipping charges for the location of the address you provide. You must also pay all tariff, import, customs, tax, and other charges applicable in your jurisdiction. If shipping costs to the address that you provide for an accepted pre-order are higher than the shipping costs you paid at the time that you offered to purchase the Product, Lubn may, in its sole discretion, require you to pay additional shipping fees or refund the full amount you paid.
- 6.5 General Payment Terms. In order for your offer to purchase a Product to be eligible for Lubn’s acceptance, you must pay the amount for the Product elected by you as set forth on the relevant payment page by credit card through Stripe or another payment method designated on our website. Payment does not guarantee acceptance by Lubn. Lubn may elect to offer premium Service features that require you to pay additional fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All prices and fees are in U.S. Dollars and are non-refundable except as expressly described in these Terms.
- 6.6 Authorization. You authorize Lubn to charge all sums for the orders that you make as described in these Terms or published by Lubn, to the payment method specified in your account. If you pay any fees with a credit card, Lubn may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You should be aware that online payment transactions are subject to validation checks by your card issuer and we are not responsible if your card issuer declines to authorize payment for any reason. Please note that it is possible that your card issuer may charge you an online handling fee or processing fee. We are not responsible for this.
- 6.7 Orders. Your order constitutes an offer to purchase a Product, and all orders are subject to Lubn’s acceptance. Except to the extent prohibited by applicable law, Lubn may accept, decline, or place limits on your order for any reason. You do, however, acknowledge that by clicking on the “Buy”, “Buy Now”, “Purchase”, “Pay Now” or other similar button, you enter into an obligation to pay for the Product. Lubn’s notice to you that your shipment is ready constitutes Lubn’s acceptance of your order. Lubn will charge any remaining amount due to your credit card when the Product is shipped to you. Products may change significantly from the time that you submitted your offer to Lubn and the time that the Product is ready for shipment. If Lubn rejects your offer, Lubn will, as your sole and exclusive remedy and Lubn’s sole and exclusive liability, refund the amount you paid as described in Section 6.11. Lubn will send you an email to the address provided by you once the Product is ready for shipment to indicate whether your pre-order has been accepted or rejected. If you have any questions, comments, or concerns regarding Lubn’s pre-order acceptance policy, or if you believe that your pre-order was rejected in error, please contact Lubn at firstname.lastname@example.org. If you need to update your shipping address or credit card information after you place an order, please contact Lubn at email@example.com. If you have an updated shipping address or an updated credit card after you placed the order, please contact Lubn at firstname.lastname@example.org. Lubn will ship the Product to the most recent shipping address you provided. If Lubn is unable to charge the remaining amount due or the shipment is returned due to an incorrect shipping address, Lubn may, at its sole discretion, provide you a full refund of the amount you paid or continue to attempt to contact you. Lubn will make reasonable efforts to contact you to provide a refund after that 30 day period, but if Lubn does not receive a response from you within 90 days of Lubn’s initial request for your shipping address, or if Lubn is not able to process your refund after that 30 day period (for example, due to a cancelled credit card), then Lubn will treat the amount that you paid as unclaimed property in accordance with applicable law.
- 6.8 Title, Risk of Loss. Title to the Product will pass to you when the Product is delivered to the carrier, after which all risk of loss or damage to any Product will be yours.
- 6.9 Delivery. Lubn will attempt in good faith to deliver the Product in accordance with your order or any other schedule Lubn may provide to you when placing the order, but Lubn will not be responsible or liable for any delays or failure in such delivery. Lubn expressly reserves the right to effect delivery in any number of separate shipments, and the modes of transport and carriers will be decided at Lubn’s discretion. During any period of shortage, Lubn may allocate its supply of Products in any manner Lubn deems appropriate. Your order will be delivered to the delivery address you specify when placing your order. If your delivery address is geographically remote or otherwise difficult to deliver to, it is possible that we may not be able to deliver there. If that is the case, we will notify you before we accept your order. Orders cannot be delivered to P.O. Box or similar addresses. Lubn will not be responsible or liable for any delay or failure to deliver due to any cause which is unavoidable or beyond Lubn’s reasonable control. In such cases, Lubn will have the right, at its option, without penalty or any liability for breach, to terminate all or any part of any order or to reschedule delivery within a reasonable time.
- 6.10 Inspection. You should carefully examine all deliveries of the Product upon delivery, and notify Lubn of any alleged error, shortage, defect or non-conformity of the Product within 5 days after receipt. Your failure to examine and report will constitute a waiver of any claim against Lubn arising under these Terms or by law with respect to any such error, shortage, defect, or non-conformity reasonably discoverable by examination. You agree to make any and all claims for damage or loss in transit against the carrier.
- 6.11 Refunds Before Shipment. Lubn allows you to request a refund for a Product until Lubn notifies you that Lubn is ready to ship. Refunds may take up to 10 business days to process. For more details on our refund policies, please visit Lubn Sales and Refund Policies page, located at https://lubn.com/sales-policies.html.
- 6.12 Product Information; Changes. While we have taken reasonable steps to depict the Product as accurately as possible through the photographs and other images featured on our websites, the detailing (such as color, pattern and texture, etc.) you see on-screen will depend on your monitor and, as such, may not exactly reflect the actual detailing of a Product when you receive it. In addition, Lubn expressly reserves the right, at any time and without notice, to discontinue the production or change the specifications of any Product or the Service.
6.13 Account Balance. The Service includes the option to make payments to Lubn for future use with the Service. You can see the total amount of such payments received by Lubn that have not been applied towards any Service fees (the “Account Balance”) in your account. There is no minimum Account Balance amount required to maintain your account, however a failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Service. We currently offer two ways to add credit to your Account Balance. You may add funds to your Account Balance as either a standalone purchase (“Upfront Credit”) or as part of a subscription (“Credit Subscription”).
- 6.13(a) Upfront Credit. Upfront Credit is a one-time, standalone payment to add credit to your Account Balance. We may offer various options for Upfront Credit purchases. For example, you may have the option to add $15 to your Account Balance for a $15 fee or the option to add $180 to your Account Balance for a $108 fee. By purchasing Upfront Credit, you will be charged for the entire amount selected at the time of purchase, and the credit amount will be available in your Account Balance after the purchase is complete.
- 6.13(b) Credit Subscription. The Service includes the option for automatically recurring payments to ensure that you Monthly Data Fees are always paid so that your Products remain activated. If you activate a Credit Subscription for your account, you authorize Lubn to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, Monthly Data Fees for your Products as described in this paragraph. We will bill the periodic Monthly Data Fee (defined below) to the payment method you provide to us during registration (or to a different payment method if you change your payment information). Lubn may increase the Monthly Data Fee for any subsequent subscription period if Lubn gives you advance notice of the increase before it applies. You may cancel the Credit Subscription by turning off the Auto Renew feature in your Account Settings or by contacting us at: email@example.com.
6.14 Data Connectivity. Use of the Product requires each Product to maintain cellular data connectivity, available through the Service. The monthly fee for data connectivity will be published on our website and listed as the fee per Product for the next month of data connectivity (the “Monthly Data Fee”). For information on the Monthly Data Fee, please see our Data Credit Pricing page, located at https://lubn.com/dataplan.html. Unless otherwise indicated in your account, the “Data Billing Date” is the date when you first activate that Product and link that Product to the Service. If on the Data Billing Date your Account Balance is greater than the Monthly Data Fee, then the Monthly Data Fee will be deducted from your Account Balance and applied toward data connectivity for your Product. However, if your Account Balance is less than the Monthly Data Fee, then data connectivity will be deactivated for your Product until sufficient funds are placed into your Account Balance.6.14(a) Multiple Devices.
- If you have more than one activated Product, we will deduct from your Account Balance the Monthly Data Fee for as many of your Products as possible, applied to each Product in the order each Product was activated (i.e. the earlier activated Product will be covered first). If on the Data Billing Date for a product, your Account Balance is insufficient to cover the Monthly Data Fee for a Product and you have activated a Credit Subscription, you will be charged the amount necessary to cover the Monthly Data Fee for that Product.
- 6.15 Referral Codes. Lubn may, in its sole discretion, create referral and/or promotional codes (“Referral Codes”) that may be redeemed for discounts on future Services, subject to any additional terms that Lubn establishes. You agree that Referral Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Lubn; (iii) may be disabled by Lubn at any time for any reason without liability to Lubn; (iv) may only be used pursuant to the specific terms that Lubn establishes for such Referral Code; (v) are not valid for cash; and (vi) may expire prior to your use. Lubn reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the Referral Codes by you or any other user in the event that Lubn determines or believes that the use or redemption of the Referral Code was in error, fraudulent, illegal, or otherwise in violation of any applicable terms.
- 6.16 Delinquent Accounts. Lubn may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. Any Account Balance will be refunded to the original credit card used to purchase the Account Balance credit. However, service charges and any applied Monthly Data Fees are not refunded or prorated if your account is terminated.
- 7.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Lubn grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
- 7.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
- 7.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to any Product or the Service (“Feedback”), then you hereby grant Lubn an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve Products and the Service and create other products and services.
8. OWNERSHIP; PROPRIETARY RIGHTS.
The Service is owned and operated by Lubn. The Products and the visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), software, services, and all other elements of the Service (“Materials”) are protected by intellectual property and other laws, and are the property of Lubn or our third-party licensors. All Materials included in the Service are the property of Lubn or its third party licensors. Except as expressly authorized by Lubn, you may not make use of the Materials. Lubn reserves all rights to the Materials not granted expressly in these Terms.
9. THIRD PARTY TERMS
- 9.1 Third Party Services and Linked Websites. Lubn may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Lubn with an account on the third party service, such as Google, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Lubn may transfer that information to the applicable third party service. Third party services are not under Lubn’s control, and, to the fullest extent permitted by law, Lubn is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Lubn’s control, and Lubn is not responsible for their content.
- 9.2 Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
10. PROHIBITED CONDUCT.
BY USING THE SERVICE YOU AGREE NOT TO:
- (a) use any Product or the Service for any illegal purpose or in violation of any local, state, national, or international law;
- (b) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- (c) interfere with security-related features of any Product or the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- (d) collect personal information about another user or third party without consent;
- (e) interfere with or disrupt any network, equipment, or server connected to or used to provide the Service;
- (f) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission;
- (g) use an account to access the Product without express permission from the owner of that Product;
- (h) use, evaluate, view, or copy the Service, including any source code or user interface, in whole or in part, in order to compete with the Service; or
- (i) sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 8) or any right or ability to view, access, or use any Materials; or
- (j) attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. DIGITAL MILLENNIUM COPYRIGHT ACT
- 11.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
12400 SE 38th St. #50434
Bellevue, WA 98015
Telephone: (202) 206-5826
- Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply include the following information:
- (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- (b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
- (c) a description of the material that you claim is infringing and where it is located on the Service;
- (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- 11.2 Repeat Infringers. Lubn will promptly terminate the accounts of users that are determined by Lubn to be repeat infringers.
12. MODIFICATION OF THESE TERMS.
We reserve the right to change these Terms on a going-forward basis at any time upon 30 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13. TERM, TERMINATION AND MODIFICATION OF THE SERVICE
- 13.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2
- 13.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Lubn may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at firstname.lastname@example.org.
- 13.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Lubn any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 7.3, 8, 13.3, 14, 15, 16, 17 and 18 will survive. Lubn will refund any remaining account balance if an account is terminated, either by Lubn or by the user.
- 13.4 Modification of the Service. Lubn reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Lubn will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
- 13.5 Export Control. You acknowledge that the Product may be subject to export control laws and other laws and regulations of the United States and other countries, and that you are responsible for compliance with all applicable export control laws and regulations. You represent that you will not export, re-export, or transfer indirectly or directly any Product outside of the United States without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not export, re-export, or transfer directly or indirectly any Product to: (i) an embargoed/terrorist supporting country, including Cuba, Iran, North Korea, Syria, Sudan, or any other such country as determined by the U.S. government; (ii) a person or entity barred by the U.S. Government on export activity lists, including persons or entities on the Treasury Department Specially Designated National List, Entities List, and Denied Persons List; or (iii) any destination for an end use that is prohibited by applicable law. You will defend and hold Lubn harmless against all claims, damages, or liability resulting from breach of the foregoing.
- 13.6 Support. You may request support for the Service, including any problems with the Product, by contacting us at email@example.com. Lubn is under no obligation to provide specific levels of support, or to meet specific response or resolution times.
To the fullest extent permitted by law, you are responsible for your use of the Products and the Service, and you will defend and indemnify Lubn and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Lubn Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, any Product or the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. LIMITED PRODUCT WARRANTY; DISCLAIMERS
- 15.1 Limited Warranty for the Product. For a period of one year from the date of shipment to you, Lubn warrants against defects in materials and workmanship of the Product. Lubn does not warrant against normal wear and tear, items consumed or expended by their normal use, product misuse, intentional or accidental damage, or damage caused by any modification of the Product. Modification of the Product, including making permanent cosmetic changes, replacing the software or firmware, or other unauthorized changes, voids this limited warranty. Unless otherwise required by law, any implied warranties are limited to the foregoing warranty periods. If you submit a valid claim under this limited warranty, Lubn at its sole discretion will authorize your return of the Product for: (a) repair with new or refurbished parts; (b) replacement with a new or refurbished product that is equivalent to the product to be replaced; or (c) a refund of the purchase price. This limited warranty gives you specific legal rights, and you may also have other legal rights which vary from state to state. For more details on our warranty policy, please visit our Warranty page, located at https://lubn.com/limitedwarranty.html.
- 15.2 Warranty Returns. You must obtain prior authorization for your warranty claim before shipping any product to Lubn. All Product returns must be shipped in the original packaging and include the return shipping label provided by Lubn. Lubn will pay shipping costs to return, repair, or replacement Products only within the United States. For repairs not covered by this limited warranty, you will be required to pay the cost of repair and shipping.
15.3 Service Disclaimer. You must obtain prior authorization for your warranty claim before shipping any product to Lubn. All Product returns must be shipped in the original packaging and include the return shipping label provided by Lubn. Lubn will pay shipping costs to return, repair, or replacement Products only within the United States. For repairs not covered by this limited warranty, you will be required to pay the cost of repair and shipping.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Lubn does not disclaim any warranty or other right that Lubn is prohibited from disclaiming under applicable law.
16. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE LUBN ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, ANY PRODUCT OR THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY LUBN ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 17.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE LUBN ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PRODUCT OR ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO LUBN FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. DISPUTE RESOLUTION AND ARBITRATION
- 17.1 Generally. In the interest of resolving disputes between you and Lubn in the most expedient and cost effective manner, and except as described in Section 17.2, you and Lubn agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND LUBN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- 17.3 Arbitrator. Any arbitration between you and Lubn will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Lubn. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- 17.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Lubn’s address for Notice is: Lubn, Inc., 12400 SE 38th St. #50434, Bellevue, WA 98015. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Lubn may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Lubn must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Lubn in settlement of the dispute prior to the award, Lubn will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- 17.5 Fees. If you commence arbitration in accordance with these Terms, Lubn will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in King County, Washington, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Lubn for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- 17.6 No Class Actions. YOU AND LUBN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Lubn agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- 17.7 Modifications to this Arbitration Provision. If Lubn makes any future change to this arbitration provision, other than a change to Lubn’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Lubn’s address for Notice of Arbitration, in which case your account with Lubn will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- 17.8 Enforceability. If Section 17.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18.3 will govern any action arising out of or related to these Terms.
- Lubn will not be liable to you for any delay in delivery of the Product or your inability to access the Service, including any delay or lack of access due to an event beyond Lubn’s reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made condition outside of Lubn’s control. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms or any Order Contract that is caused by events outside our reasonable control.
- 18.3 Governing Law. These Terms are governed by the laws of the State of Washington without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of these Terms. You and Lubn submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Washington, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- 18.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- 18.6 Contact Information. The Service is offered by Lubn, Inc., located 12400 SE 38th St. #50434, Bellevue, WA 98015. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org. You can access a copy of these Terms by clicking here.
- 18.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- 18.8 No Support. We are under no obligation to provide support for any Product or the Service. In instances where we may offer support, the support will be subject to published policies.
- 18.9 International Use. Products and the Service are intended for users located within the United States. We make no representation that products or the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
19. NOTICE REGARDING APPLE.
This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Lubn only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and 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 a third party beneficiary of these Terms. You hereby 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.