TERMS & CONDITIONS
Welcome to Lulu Systems.
The following Terms and Conditions describe the terms and conditions on which lulusystems, Inc., (“Lulu Systems” or “We”) offers you (“You” or “Customer”) access to the Services, defined below. Capitalized terms used in Terms and Conditions have the meanings under “Definitions” or in the text of Terms and Conditions.
We may amend the Terms and Conditions at any time. If We modify these Terms and Conditions We will post the modification at www.lulusystems.io/terms and/or otherwise provide You with notice of the modification. Your continued use of the Services after We amend these Terms and Conditions means that You consent to the amendments. If You disagree with the amendments You must immediately stop accessing or using the Services. You agree that You will periodically check www.lulusystems.io/terms for amendments to these Terms and Conditions and read any messages We might send You to inform You of any amendments.
“Customer Data” means all data and information, including, but not limited to, video, still images, analytic data and textual content, stored by Lulu Systems and generated by Lulu Systems from the Customer-Provided Data, in connection with the provision of the Services. “Customer-Provided Data” means all data and information provided or made available by You to Lulu Systems including, but not limited to, video or images from video or security cameras, point-of-sale data, and related technology. “Intellectual Property Rights” means all rights of a person or business entity in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, patents, trademarks, trade secrets, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world. “Lulu Systems Software” means Lulu Systems’ local/edge software, in executable form, and related documentation, if applicable, used by Lulu Systems in connection with the performance of the Services or made available by Lulu Systems to You.
“Services” refers collectively to the Lulu Systems Software, cloud application at “shop name”.lulusystems.io, mobile apps, and any other services lulusystems makes available to You pursuant to these Terms and Conditions relating to the access and processing of Customer-Provided Data, and the generation and storage of, and access to Customer Data, available and more fully described on the Lulu Systems website at www.lulusystems.io (the “Site,”), as such description may be revised from time to time.
2. Our offering
In order to access and use the Services You may register to create an account via the Site (“Lulu Systems Account”) or otherwise enter into an agreement with Lulu Systems to generate a Lulu Systems Account. You are responsible for any activities or actions under Your lulusystems Account, whether or not You have authorized such activities or actions. You will immediately notify Lulu Systems of any unauthorized use of Your lulusystems Account. Notwithstanding the foregoing, You may authorize a third party to create and manage Your Lulu Systems Account subject to Lulu Systems’ prior approval.
Lulu Systems grants to You a royalty-free, nonexclusive, nontransferable, revocable right to use the Services in connection with Your Lulu Systems Account (without any right to sublicense) for Your internal business purposes, subject to these Terms and Conditions. Solely upon prior written approval from Lulu Systems in its sole discretion, You are authorized to give access to Your Lulu Systems Account to a parent entity, subsidiaries, affiliated entities, or third parties (each a “Third Party Viewer”) so that they may access the Lulu Systems Services for the purposes of viewing your Customer Data. Any such approved access is subject to an agreement between You and the Third Party Viewer, and there is no agreement between Lulu Systems and the Third Party Viewer. If You decide to provide access to a Third Party Viewer, and Lulu Systems grants approval for such access in writing, You are responsible for providing access to the Third Party Viewer. Lulu Systems will have no liability to You or any Third Party Viewer arising from or relating to any such access.
2.3 Reservation of rights
Lulu Systems reserves all rights to the Services not otherwise expressly granted in this Section 2.
Lulu Systems has implemented commercially reasonable technical and organizational measures designed to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, Lulu Systems cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Customer Data for improper purposes.
Certain use of Lulu Systems Services are available for a fee. Those fees shall be paid as described by the Site or separate agreement between You and Lulu Systems when you first establish your Lulu Systems Account and for all subsequently added Services. Any fees paid for Services are non-refundable. If you choose to cancel your account with Lulu Systems Skylabs, you will continue to have access to your account for the entire remaining period paid in advance, as applicable. If Lulu Systems has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Lulu Systems. You shall reimburse Lulu Systems for the reasonable costs of collection, including reasonable fees and expenses of attorneys. If you have any questions related to payments, please contact [email protected]
3. Customer’s obligations
3.1 Representations of Customer
You represent that
a. You have the right, authority, and capacity to agree to and abide by these Terms and Conditions.
b. You are at least 18 years old.
c. You agree not to disclose Your Lulu Systems Account password to anyone.
d. You have all rights necessary, including Intellectual Property Rights, to grant Lulu Systems access to the Customer-Provided Data and the right to use such Customer-Provided Data in order to provide the Services to You.
e. You have complied with and will continue to comply with all applicable laws and regulations, including, but not limited to, applicable public notification requirements relating to Your use of cameras, including, but not limited to, video surveillance and security cameras and related technology from which Customer-Provided Data is obtained.
3.2 license to Lulu Systems
You hereby grant to Lulu Systems a worldwide, non-exclusive, royalty-free license to use, reproduce, electronically distribute, transmit, display, store, archive, analyze (and create derivative works based upon the Customer-Provided Data in the context of such analysis) and index the Customer Data in order to provide the Services to You and to authorize third parties to do the same.
3.3 Customer Obligations/Acknowledgements
(a) General. You agree:
1. To be bound by any additional rules or policies published with respect to any application, or forum within the Services.
2. That in order to use the Services You must comply with these Terms and Conditions.
3. Not to copy, redistribute, publish or otherwise exploit material from the Services, except as expressly permitted in these Terms and conditions, without the express prior written permission of Lulu Systems.
4. That all goodwill that arises in connection with Your use of the Services inures exclusively to Lulu Systems, and You agree not to challenge Lulu Systems’ ownership or control of any Lulu Systems trademarks and trade names, nor use or adopt any trademarks or trade names that might be confusingly similar to such trademarks.
5. That We may suspend Your and authorized users’ use and access to the Services in the event You or any of Your authorized users violate any of these Terms and Conditions, until such breach is cured.
6. That We may delete Your Lulu Systems Account if We believe, in our sole discretion, that it is being misused in any way. We do not have to provide You with any reason for such deletion, and if We delete Your Lulu Systems Account as provided in these Terms and Conditions, You will lose all content contained in such Lulu Systems Account (including Customer Data that may previously have been available to You, whether those items were provided to You gratuitously, or due to a payment of cash for the performance of Services (and in such event, We will have no obligation to make any refund to You.)
7. That the Services may contain links to other websites, and/or may be displayed within another website. Lulu Systems is not responsible for the content, accuracy or opinions expressed in such websites, and Lulu Systems does not investigate, monitor, or check those websites for accuracy or completeness. Neither the inclusion of any linked website on the Services, nor the inclusion of any component of the Services on a third party’s website or within a third party’s system implies approval or endorsement of that website by Lulu Systems. If You decide to access the Services on these third-party websites, You do so at Your own risk.
(b) Restrictions on Use of Services or Lulu Systems Software. You agree that You will not, and will not permit anyone else to: (i) use the Services or Lulu Systems Software except as permitted in Section 2.2; (ii) modify or create any derivative work of any part of the Services or Lulu Systems Software;
(iii) permit any parent, subsidiaries, affiliated entities or third parties to use the Services or Lulu Systems Software except as set forth in Section 2.2 of these Terms and Conditions; (iv) disassemble, decompile, or reverse engineer the Services or Lulu Systems Software or any feature thereof or otherwise attempt to gain access to the source code to the software underlying the Services (or the underlying ideas, algorithms, structure or organization of the object code used in the Services or Lulu Systems Software), or the Lulu Systems Software, except to the extent expressly permitted by applicable law; (v) market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign or otherwise transfer to a third party the Services or Lulu Systems Software or any copy thereof, in whole or in part; or (vi) use the Services or Lulu Systems Software for third-party training, commercial time-sharing or service bureau use.
(c) Nonexclusivity. You acknowledge that the rights granted to You under these Terms and Conditions are nonexclusive, and that nothing in these Terms and Conditions will be interpreted or construed to prohibit or in any way restrict Lulu Systems’ right to (a) license, sell or otherwise make available the Lulu Systems Software or Services to anyone else; (b) perform any services for anyone else; or (c) license, purchase or otherwise acquire any software, technology, products, materials or services from any third party.
(d) Confidentiality. You acknowledge that the Services and Lulu Systems Software contain valuable trade secrets and confidential information owned by Lulu Systems, including but not limited to the development status of the Services and Lulu Systems Software, the functionality of the Services and Lulu Systems Software, the appearance, content and ow of the Services and Lulu Systems Software’s user interface, and the content of the Services and Lulu Systems’ Software documentation. During the period that these Terms and Conditions are in effect and at all times after termination or expiration, You and Your employees and agents will maintain the confidentiality of this information, including information related to Your evaluation and characterization of the Services and Lulu Systems Software (including Feedback (as defined below)), and will not sell, license, sublicense, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information except as authorized by these Terms and Conditions. You agree that You will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Lulu Systems’ confidential information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under these Terms and Conditions to have any such information. Such measures will include, but not be limited to, the highest degree of care that You utilize to protect Your own confidential information of a similar nature, which will be no less than reasonable care. You will only disclose confidential information of Lulu Systems to Your employees on a need to know basis and only if such employees have executed written non-disclosure or confidentiality agreements that are at least as restrictive as Your obligations under this Section 3.3(d). You will not disclose any such information concerning the Services and Lulu Systems Software to anyone who is not Your employee without Lulu Systems’ prior written consent. You agree that You will take appropriate action by instruction, agreement or otherwise with Your employees to satisfy Your obligations under these Terms and Conditions regarding the use, protection and security of Lulu Systems’ confidential information. You agree to immediately notify Lulu Systems of the unauthorized disclosure or use of the Services and Lulu Systems Software or any confidential information of Lulu Systems and to assist Lulu Systems in remedying such unauthorized use or disclosure. You understand and agree that money damages would not be a sufficient remedy for any breach of Your obligations under this Section 3.3(d) by You, Your employees or agents. Should such a breach occur or threaten to occur, Lulu Systems will be entitled to seek equitable relief, in addition to any other rights or remedies provided by law.
(e) Equipment, Services and Facilities. You are solely responsible for providing, installing and maintaining at Your own expense all equipment, facilities and services necessary to enable Lulu Systems to provide the Services, including, without limitation, all computer hardware and software, network system, communication service and Internet access.
(f) Ownership of Services. You agree that Lulu Systems owns all rights, title and interest, including but not limited to copyright, patent, trade secret, and all other Intellectual Property Rights, in all aspects of the Services and Lulu Systems Software, and any changes, modifications or corrections made thereto by Lulu Systems. No title to or ownership of the Services, or the Lulu Systems Software, or any Intellectual Property Rights associated therewith is transferred to You, any authorized user or any third party under these Terms and Conditions .
(g) Software License. In order to access and use the Services, You may need to download and install the Lulu Systems Software onto Your servers, cameras, related technology and/or equipment. Subject to Your compliance with these Terms and Conditions, Lulu Systems grants to You a nonexclusive license to use such Lulu Systems Software only for the purpose of accessing and using the Services. You have no right to transfer, sublicense or otherwise distribute the Lulu Systems Software to any third party. Except as expressly authorized in these Terms and Conditions, You will not copy the Lulu Systems Software other than as necessary to access and use the Services. You will not modify the Lulu Systems Software, in whole or in part. You will not distribute the Lulu Systems Software or create derivative works based on the Lulu Systems Software. You will not lease, lend or rent the Lulu Systems Software, use the Lulu Systems Software to provide service bureau, time sharing, rental, application services provider, hosting or other computer services to third parties, or otherwise make the functionality of the Lulu Systems Software or Services available to third parties. You acknowledge that the Lulu Systems Software constitutes and contains trade secrets of Lulu Systems, and, in order to protect such trade secrets and other interests that Lulu Systems may have in the Lulu Systems Software, You agree not to disassemble, decompile or reverse engineer the Lulu Systems Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Your rights in the Lulu Systems Software are limited to those expressly granted in these Terms and Conditions. We reserve all rights and licenses in and to the Lulu Systems Software not expressly granted to You under these Terms and Conditions.
(h) Responsibility for Customer-Provided Data. You agree that you are solely responsible for the Customer-Provided Data and that it does not and will not contain any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable or any information or content that You do not have a right to make available. You agree that You are solely responsible for maintaining the privacy of any individuals who appear in Your Customer-Provided Data, specifically as it relates to any regional or local laws and/or guidelines as referenced in Section 3.1(d) herein. You agree that Lulu Systems has no responsibility to any such individuals for any use You may make or may intentionally or inadvertently allow others to make of the Customer-Provided Data or Customer Data and other information provided to You via the Services. You represent and warrant that the Customer-Provided Data does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, rights of publicity and privacy. You understand and agree that any loss or damage of any kind that occurs as a result of the content of any Customer Provided Data is solely Your responsibility.
4. Rights/Obligations of Lulu Systems
4.1 Right of Lulu Systems to Use Customer’s Evaluation and Data.
As part of Your use of the Services and Lulu Systems Software in accordance with these Terms and Conditions, You agree that if You provide Lulu Systems with any suggestions and ideas for modifications or improvements to the Services, feedback, error identifications or other information related to the Services or Lulu Systems Software or Your use thereof (“Feedback”), You hereby assign and agree to assign to Lulu Systems all right, title and interest in and to all Feedback, including all Intellectual Property Rights therein, and agree to assist Lulu Systems in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback. Consequently, Lulu Systems has the right to use any Feedback in any way and for any purpose without any requiring Your permission or compensation in exchange for such use.
4.2 Identification of Customer
You hereby grant to Lulu Systems a non-exclusive, non-transferable license, during the term, to use all trademarks, service marks, logos or trade names used by You to identify You and/or Your products and services (“Customer Mark”). Any use of a Customer Mark by Lulu Systems must correctly attribute ownership of such mark to You and must be in accordance with applicable law and Your then-current trademark usage guidelines. Lulu Systems acknowledges and agrees that You own the Customer Mark and that any and all goodwill and other proprietary rights that are created by or that result from Lulu Systems’ use of a Customer Mark hereunder inure solely to Your benefit. Lulu Systems will at no time contest or aid in contesting the validity or ownership of any Customer Mark or take any action in derogation of Your rights therein, including, without limitation, applying to register any trademark, trade name or other designation that is confusingly similar to any Customer Mark.
Except for the license granted in these Terms and Conditions, Lulu Systems acknowledges that You retain all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein. Lulu Systems has no obligation to review, share, distribute, or reference any Customer Data except as is authorized by Customer and required for provision of the Services or as may be required by law. Lulu Systems is not responsible for any public display or misuse of Customer Data, except in the case of gross negligence or intentional misconduct by Lulu Systems or its employees. Notwithstanding the foregoing, You agree that Lulu Systems may analyze Customer Data both on an individual basis and in the aggregate that Lulu Systems observes in its generation of Customer Data and You agree that Lulu Systems owns any aggregate statistics or other “meta data”, such as overall patterns or demographic reports, which do not describe or identify any individual person, resulting from such generation of Customer Data.
5. Term and Termination
These Terms and Conditions remain in effect until terminated.
5.2 Termination by Lulu Systems
Lulu Systems may terminate these Terms at any time by providing five (5) business days’ prior written notice to You stating the effective date of the termination. Lulu Systems may terminate these Terms and Conditions immediately and automatically without notice from Lulu Systems if, in Lulu Systems’ sole discretion, You fail to comply with any term or provision of these Terms and Conditions.
5.3 Termination by Customer
You may terminate these Terms and Conditions by providing prior written or email notice to Lulu Systems stating the effective date of the termination.
5.4 Effect of Termination
As soon as practicable following any termination of these Terms and Conditions, but more than ten (10) business days after), You agree to disable or otherwise remove access to the Services, including any Lulu Systems Software installed or activated systems, widgets or other user interface elements of the Services, and all Services-related materials obtained from the Services. Upon request by Lulu Systems, You will certify in writing and provide to Lulu Systems any documentation, substantiation or releases necessary to verify that You have complied with this Section 5.4. Sections 1, 2.2, 2.3, 2.5, , 3.1, 3.2, 3.3(a)(4), 3.3(a)(6), 3.3(d), 3.3(f), 3.3(h) 4.1, 4.3, 5.4, 6, 7 and 8 will survive termination of these Terms and Conditions. Upon termination Lulu Systems will delete Your Lulu Systems Account and Your Customer Data and You will no longer have access to such Customer Data and related information made available to You via the Services.
6. Disclaimer of Warranties and Limitations
6.1 Acknowledgment by Customer; Disclaimer of Other Warranties
You and Lulu Systems agree that the Services and Lulu Systems Software are provided “AS IS” and on an “AS AVAILABLE” basis, and that Lulu Systems makes no warranty as to the Services and Lulu Systems Software. You acknowledge and agree that the Services may contain errors, bugs, design flaws or other problems and Lulu Systems will make best efforts to resolve such issues as part of ongoing development and testing of the Services. LULU SYSTEMS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE RELATED TO THE SERVICES OR LULU SYSTEMS SOFTWARE, THE USE OR ANY INABILITY TO USE THE SERVICES OR LULU SYSTEMS SOFTWARE, AND THE RESULTS OF THE USE OF THE SERVICES OR LULU SYSTEMS SOFTWARE.
6.2 Limitation of Liability
IN NO EVENT WILL LULU SYSTEMS OR ITS DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO DIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL AND INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE SERVICES AND LULU SYSTEMS SOFTWARE, EVEN IF LULU SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LULU SYSTEMS WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST YOU BY ANY OTHER PARTY. YOU AGREE THAT YOU WILL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING YOUR CUSTOMER DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE SERVICES. UNDER NO CIRCUMSTANCES WILL LULU SYSTEMS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR LULU SYSTEMS ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
YOUR EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS TO OR TRANSMISSION OF THE SERVICES OR LULU SYSTEMS SOFTWARE ARE TO TERMINATE THESE TERMS AND CONDITIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LULU SYSTEMS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR OR ANY THIRD PARTY’S ACCESS TO AND USE OF THE SERVICES OR LULU SYSTEMS SOFTWARE; (II) ANY ERRORS OR OMISSIONS IN, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF THE SERVICES OR LULU SYSTEMS SOFTWARE; OR (III) DAMAGE CAUSED BY THE POSTING, TRANSMISSION OR STORAGE OF CUSTOMER DATA. IN NO EVENT WILL LULU SYSTEMS, ITS DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO YOU OR YOUR AUTHORIZED USERS FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING ONE HUNDRED DOLLARS ($100). THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF LULU SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
7.1 Indemnity by Customer
You will defend, indemnify and hold harmless Lulu Systems and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Your use of and access to the Services or Lulu Systems Software; (ii) Your violation of these Terms and Conditions; (iii) Your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) Your violation of any law, rule or regulation of the United States or any other country; (v) Your Customer-Provided Data; or (vi) any other party’s access and use of the Services via Your Lulu Systems Account or as set forth in Section 2.2 of these Terms and Conditions.
7.2 Obligations of Lulu Systems to Obtain Indemnity
The foregoing indemnities are contingent on Lulu Systems: (i) promptly notifying You of any claim; (ii) permitting You to control and manage the defense of any claim (and any settlement); and (iii) cooperating with the You in the defense of any claim (and any settlement). All costs and expenses incurred by You in providing the foregoing indemnity will be paid by You. Lulu Systems may join in defense with counsel of its choice at its own expense. You will not settle or resolve any such claim in a manner that imposes any liability or obligation on Lulu Systems without the advance written approval of Lulu Systems, which must not be unreasonably withheld or delayed.
8.1 No Assignment
You may not delegate, assign or transfer these Terms and Conditions or any of Your rights and obligations under these Terms and Conditions without Lulu Systems’ prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Lulu Systems may freely assign these Terms and Conditions without Your consent.
8.2 Amendments and Waivers
Any term of these Terms and Conditions may be amended or waived only with the written consent of the parties. Any amendment or waiver affected in accordance with this Section 8.2 will be binding upon the parties and their respective successors and assigns. Any waiver by either party of any condition, term or provision of these Terms and Conditions will not be construed as a waiver of any other condition, term or provision. Neither the course of conduct between You and Lulu Systems nor trade practice will act to modify these Terms and Conditions at any time without any notice to You or Lulu Systems.
Notice to the parties will be in writing and will be sent (i) to Lulu Systems at the following [email protected] or (ii) to You to Your address or email address as provided by You when You registered with Lulu Systems.
8.4 U.S. Government Restricted Rights
If the Services and Lulu Systems Software are being provided to the U.S. Government, You acknowledge that the Services and Lulu Systems Software include commercial computer software and documentation developed exclusively at private expense. If the Services and Lulu Systems Software are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software and applicable documentation will be only those specified in these Terms and Conditions.
8.5 Export Law Assurances
You understand that the Services and Lulu Systems Software are subject to export control laws and regulations. YOU MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT ANY ELEMENT OF THE SERVICES OR LULU SYSTEMS SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE SERVICES OR LULU SYSTEMS SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (i) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (ii) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. YOU HEREBY AGREE TO THE FOREGOING AND REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
8.6 Independent Contractor
Neither party is an agent of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
8.7 Governing Law/Resolution Of Disputes/Waiver Of Injunctive Relief
(a) These Terms and Conditions are governed by and construed in accordance with the internal laws of the United States and the State of California without regard to conflict of laws provisions. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), You agree not to commence or prosecute any action other than in the state court of San Francisco County, California, and federal court located in San Francisco County, California, and You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state court located in San Francisco County, California, and federal court located in San Francisco County, California.
(b) Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms and Conditions (“Dispute”), You and Lulu Systems agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send Your notice to Lulu Systems, Inc. 799 Market Street, 8th Floor, San Francisco, CA 94103, ATTENTION: LEGAL DEPARTMENT.
(c) Binding Arbitration. If You and Lulu Systems are unable to resolve a Dispute through informal negotiations, either You or Lulu Systems may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and Your share of arbitrator compensation will be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Lulu Systems will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in these Terms and Conditions, You and Lulu Systems may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
(d) Restrictions. You and Lulu Systems agree that any arbitration will be limited to the Dispute between Lulu Systems and You individually. To the full extent permitted by law, (1) no arbitration will be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
(e) Exceptions to Informal Negotiations and Arbitration. You and Lulu Systems agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of Your or Lulu Systems’ Intellectual Property Rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
The failure of Lulu Systems to require or enforce strict performance by You of any provision of these Terms and Conditions or to exercise any right under them will not be construed as a waiver or relinquishment of Lulu Systems’ right to assert or rely upon any such provision or right in that or any other instance.
8.9 US Based
Lulu Systems operates and controls the Services from its offices in the United States. We make no representation that the Services are appropriate or available in other locations. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
8.10 No Third party Beneficiaries.
These Terms and Conditions are between You and Lulu Systems. No third party has any rights to force Lulu Systems to enforce any rights it may have against any You or any other third party.
You hereby waive any and all defenses You may have based on the electronic form of these Terms and Conditions and the lack of signing by the parties hereto to execute these Terms and Conditions.