Terms and Conditions

Terms of Service
Last Updated: 04/27/2016
This Lavu Terms of Service Agreement (“Agreement”) is a legal agreement
between you (“you,” “your”) and Lavu, Inc. (“Lavu,” “we,” “our” or “us”) governing
Lavu’s iOS applications (each an “App”), the website located at lavu.com and
other services, including software and/or hardware related services or rights of
use, (collectively, the “Services”) and hardware products, devices, or equipment
(“Products”) we may provide or offer. To receive or use the Products or Services,
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 the Products or Services.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR THE
PRODUCTS OR SERVICES OR BY ACCESSING, USING THE PRODUCTS OR
SERVICES, OR DOWNLOADING AN APP, YOU ARE ACCEPTING AND
AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE
ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU
REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY,
AND CAPACITY TO ACCEPT AND AGREE TO THIS AGREEMENT ON
BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU
REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR
JURISDICTION OR RESIDENCE TO ENTER INTO THIS AGREEMENT.
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 THE SERVICES 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 LAVU’S THEN­CURRENT FEES FOR SUCH SERVICES UNLESS
YOU OPT OUT OF THE AUTO­RENEWAL IN ACCORDANCE WITH SECTION
9.6 BELOW.
Definitions
● “iOS” means Apple’s “iOS” operating system used on the iPad, iPod and
iPhone.
● “Lavu Control Panel” means the control panel used to change settings and
options for your Lavu Account.
● “Lavu Account” means an account that is created that allows you to access
the Services provided by Lavu.
● “Fees” means the fees paid for your continued use of the Services or
Products based on the subscription you select at the time you create your
Lavu Account.
● “Software License” means a license purchased to allow you to use the
Services.
● “Credit Card Gateway” means a third party service that a merchant may
choose to sign up with that handles the processing of credit card
transactions.
● “Account Activity” means the payments made to the Lavu Account within
the last 30 days; orders recorded by the Services in the last 30 days;
and/or clock punches recorded by the Services in the last 30 days.
● “Intellectual Property Rights” means all trademark, trade dress and service
mark rights, patent rights, mask work right, copyright rights, rights of
publicity, goodwill, moral rights, trade secret rights and 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 between arising out of or relating to the
Products or Services or these Terms.
● “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 the
Services including but not limited to financial data, transaction data, order
data, credit card signatures, and logs.
● “Offline Credit Card Transactions” means the situation when encrypted
credit card transaction information that is stored locally on an iOS device
when the proper network connection is unavailable. An attempt to facilitate
the transaction can be made when the connection is restored.
Headings
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.
Lavu Accounts
To utilize our Services you will need to create a Lavu Account. During registration
you will be asked for both personal information and information regarding your
business. The information that you submit to create your Lavu Account must be
complete and accurate. You must also keep the business and personal
information in your Lavu Account up to date.
If you open a Lavu Account for a company, organization or other entity, you
represent 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 on the entity’s behalf.
We reserve the right to terminate any Lavu Account that fails to comply with the
account registration requirements or that we find to contain information that is
untrue, inaccurate, or incomplete.
We reserve the right to terminate your Lavu Account, revoke your Software
License and delete all data associated with the Lavu Account if there has been
no Account Activity in your Lavu Account for a period of 180 days.
You are responsible for all activities that occur under your Lavu Account. You
agree to immediately notify Lavu of any unauthorized use, or suspected
unauthorized use of your Lavu Account or any other breach of security.
Software Services
The Services may include software applications and web­based software. You
must install any and all software application and web­based software updates to
continue using the Services. From time to time older hardware or computer
programs may no longer be compatible with the latest software applications and
web­based software updates. It is your responsibility to upgrade any hardware or
computer programs as needed to continue using the services.
Products
In General.​All Products offered by Lavu 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 Products without prior notice. Prices for
the Products are subject to change at any time, but changes will not affect any
order for Products you have already placed. Products may be purchased or
leased as indicated in your order.
Title. ​Title for Products purchased from Lavu passes to the purchaser at the time
of delivery by Lavu to the freight carrier and you will be responsible for any
Product loss or damage that occurs when the Product is in transit to you. Lavu or
the applicable third party financing/rental company approved by Lavu
(“Financing Partner​”) retain title to any Products you lease or rent from us or the
applicable Financing Partner. Our delivery charges and methods are as
described on our website from time to time.
Returns and Refunds.​You may contact us at rma@lavu.com to request return
of Products you purchased from Lavu at any time within thirty (30) days of the
order date. If Lavu determines that you are eligible to return such Products, Lavu
will provide a return materials authorization (RMA) to you via email. Lavu will
refund you the amount you paid for the returned Products (less applicable
handling charges) provided that Lavu receives such Products, including all
Products items if the 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 of the returned Products
remains with you until received by Lavu. You will bear the cost of freight and
insurance of any returned Product. Except as otherwise stated in these terms,
Lavu is under no obligation to refund any amounts you previously paid to Lavu
for the Products.
Leased or Financed Products. ​The leased or financed 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 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 Products.
You will promptly return, at your expense, such leased or financed 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 Products. You will pay for the cost of replacing leased or financed
Products if you do not return the leased or financed Product in good working
order (normal wear and tear excepted) when the applicable rental, lease or
subscription period expires or this Agreement terminates.
Product Services. ​Certain Products may be subject to Lavu’s maintenance,
support, repair or replacement services (including NDR defined below) as
indicated in your order with Lavu. Any parts or replacement Products provided to
you hereunder shall not extend the original warranty period and may consist of
new, refurbished or functionally­equivalent product. Lavu’s maintenance, support,
repair or replacement services (including NDR) will not be provided with respect
to: (i) to Products that have been altered or modified by anyone who is not a
representative of Lavu,(ii) damage caused by abuse, misuse, fire, earthquake or
other external causes, (iii) 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 functionality of the Product.
Next Day Replacement Service (“NDR”)​. If you subscribe to our next day
replacement Service (“NDR”) with respect to any Product, Product replacement
orders received by Lavu (i) on Monday ­ Friday before 5PM Eastern Time will be
processed and shipped by Lavu 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
Lavu 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 Lavu’s
reasonable control (e.g., unusual storms or natural disasters, Product shortages
or unavailability, etc.). You must comply with Lavu’s generally applicable policies
and procedures regarding NDR Service orders and must return any replaced
Products in accordance with the Returns and Refunds Section above.
Mobile Devices and Third Party
Carriers
Use of your Lavu Account requires compatible mobile devices and an internet
connection that meets certain 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 the Services. You are responsible
for determining the compatibility of the Services with other products and services
you use. Lavu is not liable for any required or necessary agreements with the
mobile device provider or internet provider and does not warrant that the
Services 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 termination of your Lavu Account.
Unauthorized or Illegal Use
If it is determined that your Lavu Account has been used for illegal or criminal
purposes you acknowledge and authorize Lavu to share any information about
you, your Lavu Account, and any other data to the appropriate law enforcement
agencies.
You are responsible for verifying that the Products and Services and the
functionality of the Products and Services comply with all applicable laws,
including but not limited to local, state, and federal laws, that may govern your
use of the Products or Services or features contained within the Products or
Services. You agree that you will not use the Products or Services or certain
features contained within the Products and Services, if it is not legal to do so in
your location. Your use of the Products and Services and the features contained
therein constitute your representation that such use and features do not violate
any applicable laws. You agree to wholly indemnify and hold harmless Lavu in
any lawsuit arising out of your use of the Products or Services or the features of
the Products or Services in the event such use or features violate any applicable
laws, and you agree not to pursue any damages or remedies against Lavu
arising of the same. You are solely responsible for your use of the Products and
Services and the features therein, and you agree that such use by you is a
waiver of any claims you may have against Lavu in the event such use, the
Products, or Services, or the features of the Products or Services violate any
applicable laws.
Accepting Credit Card Payments
Lavu does not directly handle processing of credit card transactions. Our
Services simply facilitates transacting credit cards through integrated third party
Credit Card Gateway and Processing partners. By transacting credit cards
through our Services you must agree to the terms and conditions set by the
Credit Card Gateway and Processor being used.
1. 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 Lavu
immediately, if you notice a problem with authorizations, tip amounts, transacting
payments, processing, batching, or the settlement amount. Your failure to notify
Lavu of an error in authorizations, tip amounts, transacting payments,
processing, batching, or the settlement amount within seven (7) days of the date
of a discrepancy, shall constitute a waiver of liability to Lavu.
2. Lavu is not liable for any damages if the error was caused by you, misuse
of the Services, or the Credit Card Gateway or Processor.
3. Lavu may offer a feature that facilitates transacting Offline Credit Card
Transactions with the Services. If you choose to utilize this feature you agree that
Lavu is not liable for any damages or losses from the use of this feature. The use
of this feature is at your own 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.
Taxes
Lavu’s Fees do not include Taxes, unless expressly indicated otherwise by Lavu
on an invoice. If any Products or Services, or payments for any Products or
Services, under this Agreement are subject to Tax in any jurisdiction and you
have not remitted the applicable Tax to Lavu, you will be responsible for the
payment of such Tax and any related penalties or interest to the relevant tax
authority. You will indemnify Lavu and its affiliates for any liability or expense
Lavu or its affiliates may incur in connection with such Taxes, including penalties
or interest. Upon our request, you will provide Lavu 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. Taxes do not include Lavu’s income taxes in the United
States of America. You agree to make all payments of Fees to Lavu free and
clear of, and without reduction for, any withholding taxes. All amounts payable to
Lavu will be grossed­up to the extent there is any legally required withholding so
that Lavu receives from you in United States Dollars the amount Lavu
contemplated. Any Taxes imposed on payments of Fees to Lavu will be your
sole responsibility, and you will provide Lavu 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.
Fees
In order to access or use the Services and receive and/or use the Products you
agree to pay all Fees to Lavu in accordance with our then­current Fees found at:
https://www.lavu.com/restaurant­pos­pricing or as otherwise agreed in writing by
Lavu 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[__1] . 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 Lavu. 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 these Terms of Service. Financing Partners are independent of
Lavu. Lavu is not responsible for such Financing Partners and Financing
Partners are not responsible for Lavu.
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 third­party payment processor) to immediately charge your
payment method for all fees and charges due and payable to Lavu hereunder
and that no additional notice or consent is required. If the payment method you
provide cannot be verified, is invalid or is otherwise not acceptable, your use of
the Services may be suspended or terminated. In the event you want to change
or update payment information associated with your Lavu Account, you can do
so at any time by logging into your Lavu Account and editing your payment
information.
Your subscription with Lavu 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 Lavu’s then­current 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
855­767­5288.​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 855­767­5288. You may not cancel your subscription prior to the end of
your then­current subscription term. ​If you cancel your subscription, you may
use your subscription until the end of your then­current subscription term; your
subscription will not be renewed after your then­current term expires. However,
you will not be eligible for a prorated refund of any portion of the subscription fee
paid for the then­current subscription period. By subscribing, you authorize us
(or our third­party payment processor) to immediately charge your 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 Lavu will charge all applicable fees and
charges due to the payment card or other form of non­invoice payment method
that you provided to Lavu upon order placement and prior to shipment of any
Products.
Lavu 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 third­party payment processors’ terms
and conditions in connection with such services. You hereby consent to provide
and authorize Lavu and any third­party 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.
Lavu offers a fourteen (14) day free trial that starts when you create a Lavu
Account for certain Services. 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 subscription. 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.
Customer Service
Lavu reserves 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.
Notices
By accepting this Agreement you acknowledge and accept that Lavu will post
disclosures and notices required by law and any other information deemed
pertinent by electronic means to include on any Lavu maintained website, via
email, or in your Lavu Account. For contractual purposes, you (1) consent to
receive communications from Lavu in an electronic form; and (2) agree that all
terms and conditions, agreements, notices, disclosures, and other
communications that Lavu provides 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 a Lavu­maintained website, to
your Lavu Account, or notice via email and continued use of the Services.
Where Lavu requires that you provide an e­mail address, you are responsible for
providing Lavu with your most current e­mail address. In the event that the last
e­mail address you provided to Lavu is not valid, or for any reason is not capable
of delivering to you any notices required/ permitted by this Agreement, Lavu’s
dispatch of the e­mail containing such notice will nonetheless constitute effective
notice. You may give notice to Lavu at the following address: 116 Central Ave
#200, Albuquerque, NM 87102. Such notice shall be deemed given when
received by Lavu by letter delivered by nationally recognized overnight delivery
service or first class postage prepaid mail at the above address.
Your Content
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 Service. You hereby grant, and you
represent and warrant that you have the right to grant, to us a fully paid,
royalty­free, 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 Services and operating, providing and
promoting the Services.
1. We reserve the right to edit, modify or delete User Content at our
discretion.
2. We may use any User Content for advertising or any other purposes.
3. We take no responsibility and are not liable for any loss or damage to User
Content.
4. We reserve the right to edit, modify or delete User Data at our discretion.
5. We take no responsibility and are not liable for any loss or damage to User
Data.
Copyright and Trademark
Infringement
Lavu respects and honors trademark and copyright rights of others and we ask
that you do the same. Any valid notices of copyright or trademark infringement to
Lavu may be responded to with termination of Services of any Lavu Account who
violates the copyrights and trademarks of others.
Security
Lavu utilizes policies, procedures, and technical measures to protect your
personal information from accidental loss or malicious acquisition, use, alteration,
or access. Lavu 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.
Term; Termination
This Agreement commences on the date when you first use the Services 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.
Lavu may permanently or temporarily terminate, suspend, or otherwise refuse to
permit your access to the Services without any notice and liability for any reason,
including if in Lavu’s sole determination you violate any provision of this
Agreement.
Upon termination of this Agreement for any reason, you must immediately stop
using the Services and your license to use the Services provided under this
Agreement shall end. Upon your termination of this Agreement, Lavu will provide
you with thirty (30) days to allow you to extract your User Content and User Data
that Lavu has stored on its servers as of the termination date. Subject to the
foregoing sentence and applicable law and card association rule requirements,
Lavu will delete User Content and User Data stored on Lavu’s servers upon your
termination of this Agreement, and Lavu will not be liable to you or any third party
for termination of access to the Services or deletion of your User Content and
User Data.
License; Restrictions
Subject to this Agreement, we grant you a non­transferable, non­exclusive,
revocable, limited license to use and access, solely for your own personal,
noncommercial use (a) the App on any compatible device that you own or
control, and (b) the other aspects of Services. Furthermore, with respect to any
App 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 the App. 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 the Services or any leased or
rented Products; (ii) you agree not to modify, make derivative works of,
disassemble, reverse compile, or reverse engineer any part of the Services or
Products, except to the extent such restriction is prohibited by law; (iii) you agree
not to access the Services in order to build a similar or competitive service; (iv)
except as expressly stated herein, no part of the Services 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 Services or any other system, device or property of Lavu’s; (vi) you
agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the
servers or networks connected to the Services or violate the regulations, policies,
or procedures of such networks; (vii) you agree not to access (or attempt to
access) any of the Services by means other than through the interface that is
provided by Lavu; 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 the Services or Products. Any
future release, update, or other addition to functionality of the Services shall be
subject to this Agreement.
You acknowledge and agree that the availability of the App and the Services is
dependent on the App Store from which you received the App license. You and
Lavu acknowledge that this Agreement is between you and Lavu and not with the
App Store and that Lavu, and not the App Store, is responsible for the App and
the content thereof. Lavu is responsible for providing any maintenance and
support services with respect to the App and the App Store has no obligation
whatsoever to furnish any maintenance and support services with respect to the
App. Lavu is 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 the App to conform to any applicable warranty, you may notify the App Store,
and the App Store may refund the purchase price for the App 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 App, and any other
claims, losses, liabilities, damages, costs or expenses attributable to any failure
to conform to any warranty will be Lavu’s sole responsibility. You and Lavu
acknowledge that Lavu, and not the App Store, is responsible for addressing any
claims relating to the App or your possession and/or use of that App, including,
but not limited to: 1) product liability claims; 2) any claim that the App fails to
conform to any applicable legal or regulatory requirement; and 3) claims arising
under consumer protection or similar legislation. You and Lavu acknowledge
that, in the event of any third party claim that the App infringes or your
possession and use of that App that third party’s intellectual property rights,
Lavu, 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 App 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 App. Lavu and you acknowledge
and agree that the App Stores and their subsidiaries, are third party Lavu of is
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
The Services are licensed and not sold. Lavu reserves all rights not expressly
granted to you in this Agreement. This Agreement does not grant you any rights
to Lavu’s service marks or trademarks, or any other intellectual property rights.
The Services are protected by intellectual property laws, including but not limited
to trademark, patent, trade secret and copyright laws. Lavu owns all Intellectual
Property Rights in the Services. 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 Services, 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.
Indemnity
You will indemnify, defend, and hold us, our officers, executives, 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: a) any actual or alleged breach of
your representations, warranties, or obligations set forth in this Agreement; b)
your use of, or inability to use the Products or Services; c) your violation of any
law, rule or regulation of the United States or any other country; d) any person’s
or entity’s access and/or use of the Services or Products with your unique
username or password; e) your violation of any third­party right, including without
limitation any right of privacy, publicity rights or Intellectual Property Rights.
Export
You may not use, export, import, or transfer the Services or Products except as
authorized by U.S. law, the laws of the jurisdiction in which you obtained or use
the Services or Products and any other applicable laws. In particular, but without
limitation, the Services and Products may not be exported or re­exported (a) into
any United States embargoed countries, or (b) 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 Services or
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 products, services or technology provided by Lavu 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 Lavu products, services or
technology, either directly or indirectly, to any country in violation of such laws
and regulations.
Representation and Warranties
You represent and warrant to Lavu that: a) you are eighteen (18) years of age or
older; b) you are eligible to register and use these Services and have the power,
ability, and right to enter into a perform under this Agreement; c) the name used
to create the Lavu Account is your name or the name of your business under
which you will utilize the Services; d) you will not, directly or indirectly, use the
Services for fraudulent activity or to interfere with these Services; e) your use of
the Services and Products will comply with this Agreement.
No Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, To the maximum extent
permitted by applicable law, YOUR USE OF THE PRODUCTS AND Services IS AT
YOUR SOLE RISK AND THE PRODUCTS AND Services AND ANY CONTENT,
PRODUCTS, SERVICES OR INFORMATION PROVIDED BY the PRODUCTS, Services
is 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 will create a
warranty not expressly stated herein. Without limiting the foregoing, Lavu does
not warrant that the PRODUCTS OR Services ARE reliable, correct, or accurate;
that the PRODUCTS OR Services ARE virus free or contain no harmful
components or code; that the PRODUCTS OR Services will be available at any
given time or location, secure, or uninterrupted; that the PRODUCTS OR
serviceS will meet your requirements; or that any defects or errors will be
corrected. Any downloaded content through the use of the PRODUCTS OR
Services 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 Lavu’s
agreements with third party suppliers, lavu will flow down to you any warranties
applicable to the PRODUCTS OR Services provided by such third party
suppliers.
LAVU DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME
RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR
OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE
PRODUCTS OR Services (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY
PRODUCTS AND SERVICES CONNECTED THROUGH THE SERVICES OR
FINANCING PRODUCTS OR SERVICES) OR ANY HYPERLINKED WEBSITE
OR SERVICE, AND LAVU WILL NOT BE A PARTY TO OR IN ANY WAY
MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD­PARTY.
Processing and Calculation Errors
You agree that Lavu is not responsible for any monetary losses or damage that
you may suffer while using the Services OR PRODUCTS. It is your responsibility
to verify that calculations made by the Services AND 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 is
Lavu 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 PRODUCTS OR Services. Under no
circumstances will Lavu be liable for any damage or loss resulting from hacking,
tampering, or otherwise illegally tampering or using the PRODUCTS OR
Services or your Lavu account, or the information contained therein.To the
maximum extent permitted by applicable law, Lavu assumes 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 the PRODUCTS OR Services; (III) any bugs,
viruses, worms, trojan horses, or the like that may be transmitted to or through
the PRODUCTS OR Services; (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 the PRODUCTS OR Services; (V) User Content or the
defamatory, offensive, or illegal conduct of any third­party. 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 Lavu has been
advised of the possibility of such damages. ACCESS TO, AND USE OF, THE
PRODUCTS AND Services 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, LAVU’S 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 (A) THE FEES PAID BY YOU to lavu IN THE
PRECEDING TWELVE (12) MONTHS AND (B) 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 LAVU DIRECTLY FOR A PRODUCT OR SERVICE 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 LAVU HAD YOU NOT FINANCED THROUGH OUR FINANCING
PARTNER AND PAID US DIRECTLY. YOU AGREE THAT NEITHER 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 THE PRODUCTS OR Services OR
THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF
THE PRODUCTS OR Services. 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 AND YOU AND IN SUCH JURISDICTIONS, THE LIABILITY OF LAVU IS LIMITED TO
THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
Assignment
This Agreement, and any rights and licenses granted hereunder, may not be
transferred or assigned by you without Lavu’s prior written consent, but may be
assigned by Lavu 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 Lavu Support 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 Lavu, and to any subsidiaries, affiliates,
agents, employees, predecessors in interest, successors, and assigns, as well as
all authorized or unauthorized users or beneficiaries of Products or Services
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
non­appearance­based 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. Any hearing will be held in a location within 100 miles of
your residence, unless you reside outside of the United States, and unless the
parties 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 Lavu 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, Lavu may seek injunctive or other equitable relief
to protect its 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 WAIVE ALL RIGHTS TO A
JURY TRIAL, instead electing that the dispute be resolved by a judge.
In any circumstances where the 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.
Governing Law
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 SERVICES MUST COMMENCE
WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Right to Amend
Lavu reserves 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 the Services with or without notice that we determine to
be reasonable in the circumstances, including such notice on our website at
lavu.com or any other affiliated website maintained by us for the purposes of
providing services in terms of this Agreement. Any use of the Services after our
publication of any changes shall constitute your acceptance of this Agreement as
modified.
Third Party Products and Services
Lavu may be integrated with third­party products and services, including
Products sold or leased by Lavu (“Third Party Products and Services”). If you
choose to use any of these Third Party Products, you agree that Lavu may
exchange information and control data regarding you and your products,
including your personal information, in order to enable the interface you have
authorized. Once this information is shared with the particular Third Party
Product and Service, its use will be governed by the third party's privacy policy
and not by Lavu’s Privacy Policy. You acknowledge that Third Party Products
and Services that you connect to your Lavu Account or interface with the
Products or Services are not Lavu products and services and you acknowledge
and agree that Lavu does not control, and that this Agreement does not apply to,
any Third Party Products and Services. Use of any Third Party Products and
Services is governed by separate terms and conditions provided by the
operator(s) of the applicable Third Party Products and Services. You
acknowledge and agree that Lavu makes no representation or warranty about
the safety of any Third Party Products or Services. Accordingly, Lavu is not
responsible for your use of any Third Party Product or Service or any personal
injury, death, property damage (including, without limitation, to your home), or
other harm or losses arising from or relating to your use of any Third Party
Products or Services. You should contact the third party with any questions about
their Third Party Products and Services.
The Services may contain links to third­party websites and applications and
advertisements for third parties (collectively, ​“Third­Party Websites, Applications
& Ads”). When you click on a link to a third­party website, application or ad, we
will not warn you that you have left the Services and are subject to the terms and
conditions (including privacy policies) of another website or destination. Such
Third­Party Websites, Applications & Ads are not under the control of Lavu and
Lavu is not responsible for any Third­Party Websites, Applications & Ads. Lavu
provides these Third­Party Websites, Applications & Ads only as a convenience
and does not review, approve, monitor, endorse, warrant, or make any
representations with respect to Third­Party Websites, Applications & Ads, or their
products or services. You use all links in Third­Party Websites, Applications &
Ads at your own risk. When you leave our Services, this Agreement no longer
governs. You should review applicable terms and policies, including privacy and
data gathering practices, of any Third­Party Websites, Applications and Ads, and
should make whatever investigation you feel necessary or appropriate before
proceeding with any transaction with any third­party.
Miscellaneous
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. Lavu 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 the Services, please contact us at: Lavu, Inc.
116 Central Ave SW #200, Albuquerque, NM 87102 (855)767­5288. 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.
Survival
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.
[__1]Note to Lavu: please confirm you give notice of fee increases prior to charging users the
new fee