THIS TERMS OF SERVICE AGREEMENT (“Agreement”) governs the use of the Lifted Labs hosted online application and service, including but not limited to, its “Start,” “Grow” and “Cultivate” online application development and service packages (collectively, the “Service” as herein further defined), and incorporates the Privacy and Security Policy at www.lifted.app.com/privacy. As used herein, “Customer” means the person or entity executing an Order Form for the Service, and any individual user (“User,” as herein further defined) employed or engaged by the Customer and authorized to use the Service subscribed to by the Customer in the Order Form, for and/or on Customer’s behalf. Other capitalized terms used herein are defined below in Section 28. USE OF THE SERVICE BY A CUSTOMER OR USER CONSTITUTES CONSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THE CUSTOMER’S AND USER’S AGREEMENT TO BE LEGALLY BOUND BY ALL THE PROVISIONS HEREOF.
1. License Grant; Reservation of Rights and Ownership. Lifted Labs grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited right to access and use the Service in accordance with the terms and conditions hereof, solely for Customer’s own internal business purposes. Lifted Labs and its licensors and third party providers expressly reserve all rights not expressly granted to Customer under this Agreement. Except for the non-exclusive, non-transferable, non-sublicensable, revocable, limited license granted hereby, Customer acknowledges and agrees that all ownership, license, Intellectual Property Rights and other rights and interests in and to the Lifted Labs Technology, the Content and the Service shall be and remain solely that of Lifted Labs, its licensors and third-party providers, as applicable.
2. Authorized Users. The license granted to Customer hereunder may only be used by the Customer’s Administrator and one or more authorized Users designated by the Customer’s Administrator on the Order Form. Customer’s Administrator may add or remove authorized Users by executing and delivering an additional written request to Lifted Labs. All Users are required to provide Lifted Labs with their full legal name, a valid email address, and any other information reasonably requested by Lifted Labs upon registering to use the Service. Each authorized User will be provided with a unique identifier (“User name”) and password to access and use the Service. User licenses are coterminous with the Customer’s license hereunder and the License Term. Only authorized Users designated by Customer’s Administrator are permitted to use and access the Service, and Customer’s Administrator agrees to update all authorized User information with Lifted Labs within thirty (30) days of any changes to such User information, including the termination or cessation of services by the Use to the Customer. Each User name shall only be used by the authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other authorized Users. The Customer’s Administrator will deactivate an active User name if the Customer’s Administrator wishes to terminate access to the Service for any authorized User. Customer’s Administrator is responsible for all use of the Service by authorized Users on the list of active authorized Users associated with Customer’s subscription to the Service, and for any unauthorized use. Customer will implement policies and procedures to prevent unauthorized use of User names and passwords, and will promptly notify Lifted Labs upon suspicion that a User name and password has been lost, stolen, compromised, or misused. Lifted Labs shall not be liable for any losses caused by any unauthorized use of Customer’s account.
3. Restrictions on Use; Age Restriction. Customer shall not (and shall not permit any User or third party to): (a) license, sublicense, sell, resell, transfer, assign, rent, lease, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (b) modify or make derivative works based upon the Service or the Content; (c) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service; or (d) access the Service in order to build a competitive product or service. The Service is not intended for use by users under the age of 21, and no one under age 21 is allowed to use the Service or provide any personal information in connection therewith. All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided or contemplated as part of the Service is strictly prohibited, including, without limitation, through the use of “cookies,” “robots,” “spiders,” “offline readers,” etc., that access the Service in a manner that sends more request messages to Lifted Labs servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser.
4. Customer Responsibilities.
4.1. In General; Compliance with Laws; Privacy and Security Policy. Customer is responsible for all activity occurring under its User accounts, including, without limitation, all communications sent using the Service (including, without limitation, communications made through chat sessions and short message service (SMS) or other text messaging features), whether or not authorized by Lifted Labs or Customer. Customer and its Users shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Service, including, without limitation, those related to telephone solicitations, privacy and the transmission of technical or personal data and, without limiting the generality of the foregoing, the federal Telephone Consumer Protection Act and Do-Not-Call Implementation Act, as the same may from time to time be amended, and the rules and regulations promulgated thereunder by the Federal Trade Commission and Federal Communication Commission. Lifted Labs makes no representation that the Service is appropriate for use in locations outside the United States, or in any particular state or other jurisdiction in the United States, and access to the Service from locations where it is prohibited is illegal. The Service may be subject to applicable U.S. export control laws and economic sanction regulations, and Customer agrees to strictly comply with all applicable U.S. and international export laws and economic sanction regulations. Customer represents and warrants that it and its Users will comply with Lifted Lab’s Privacy and Security Policy.
4.2. Specifically Prohibited Activities. Customer shall not (and shall not permit its Users or any third party to) upload, download, post, submit, or otherwise distribute or facilitate distribution of any content on or through the Service, or take any other action, that Lifted Labs determines in its sole discretion: (a) constitutes an attempt to disrupt, impair or interfere with the normal operation of the Service or any activities conducted on or through the Service; (b) infringes on any Intellectual Property Rights of Lifted Labs, its licensors or third party providers, or any other person or entity; (c) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortuous, obscene, pornographic, offensive, or profane; (d) constitutes unauthorized or unsolicited advertising, junk, spam or bulk e-mail, short message service (SMS) messages, telephone calls, or other communication; (e) contains software viruses or any other computer codes, files, or programs that are of a destructive or malicious nature, including, without limitation, any that are designed or intended to disrupt, damage, limit or interfere with the proper function of the Service or any software, hardware, or computer systems or networks, or to damage or obtain unauthorized access to the Service or any system, data, password, or other information of Lifted Labs or any third party; or (f) impersonates any employee or representative of Lifted Labs, or any other person or entity. Additionally, Customer shall not take any action that imposes or may impose an unreasonable or disproportionately large load on Lifted Labs’ (or its licensors’ or third party providers’) infrastructure or that attempts to bypass any measures Lifted Labs may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service).
4.3. Non-Circumvention. Customer agrees that it shall not circumvent, or attempt to circumvent, any of the provisions of this Agreement.
4.4. Deletion of Violative Matters. At any time and without notice, Lifted Labs may permanently delete any Customer communication or Customer Data that violates the provisions of this Section 4.
4.5. Communication Authorization. As the Service is a hosted, online application, Lifted Labs occasionally may need to notify Customer and all Users of the Service of important announcements regarding the operation of the Service, and Customer and Users hereby authorize such notifications by Lifted Labs, even if they have opted out of marketing and other communications from Lifted Labs.
We send SMS messages to you strictly in accordance with your preferences, and only after you have explicitly opted in. If you change your mind at any time, and no longer wish to receive SMS messages, simply reply to a message with the word STOP. Afterwards, should you choose to begin receiving messages again, reply with the word UNSTOP.
5. Customer Data. Lifted Labs does not pre-screen or review the contents of electronic data, information or material uploaded or posted to, or otherwise provided, submitted or transmitted by Customer in the course of using the Service (“Customer Data”), except as herein provided. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership of, or right to use, all Customer Data (including, without limitation, the making and content of any emails, short message service (SMS) messages, chat sessions, telephone calls or other communications made or received by Customer using the Service). Customer is also solely responsible for the adequate security, protection and backup of all Customer Data. Lifted Labs is not responsible or liable for the deletion, correction, destruction, damage, theft, loss or failure to store any Customer Data. Except as herein otherwise provided in connection with the termination or suspension of this Agreement or the Service, Lifted Labs will make available to Customer a file of the Customer Data upon request, as and to the extent available to Lifted Labs. Customer’s right to access or use Customer Data immediately ceases, and Lifted Labs shall have no obligation to maintain or forward any Customer Data, upon a breach of this Agreement by Customer, including, without limitation, nonpayment of fees owed hereunder. Customer further acknowledges and agrees that Lifted Labs may access, review or disclose Customer Data, including the content of communications: (a) if Lifted Labs believes in its sole discretion that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request; (b) to enforce this Agreement or any Lifted Labs policy, including, without limitation, the Privacy and Security Policy; (c) to protect the security or integrity of the Service, to resolve a problem or support issue, or for general quality control purposes; (d) to protect Lifted Labs, its other customers, its licensors or third party providers, or the public from harm or illegal activities; or (e) to respond to an emergency which Lifted Labs believes in good faith requires accessing or disclosing Customer Data to assist in preventing a death, serious bodily injury or significant property damage. Customer also will ensure that Lifted Labs is able and authorized to use all Customer Data to the extent necessary to provide the Service.
6. Suggestions and Contributions. By submitting any suggestions, ideas, requests, feedback, recommendations or contributions (“Contributions”) to Lifted Labs about the Service, Customer and its Users acknowledge and agree that: (a) Lifted Labs is not under any obligation to keep the Contributions confidential; (b) Lifted Labs may use or disclose, or refrain from using or disclosing, the Contributions for any purpose or in any way it sees fit; (c) Customer and Users grant to Lifted Labs an irrevocable, perpetual, unrestricted, unconditional, non-exclusive, royalty-free license to use, create derivative works from, and otherwise exploit the Contributions in any manner Lifted Labs sees fit; and (d) Customer and Users are not entitled to any compensation or reimbursement of any kind under any circumstances for the Contributions.
7. Modification of Service. Lifted Labs reserves the right at any time, and from time to time, to change, modify, suspend, or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that Lifted Labs shall provide Customer with reasonable notice of any such modification that materially reduces the functionality of the Service. Lifted Labs shall not be liable to Customer for any such modification. Continued use of the Service following any such modification constitutes Customer’s acceptance of the modification.
8. Temporary Suspension of Service. Lifted Labs reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide Customer reasonable notice of any such suspension. Such notice shall be provided to Customer in advance by way of notification within the Service, email or other notification method deemed appropriate by Lifted Labs. Further, Lifted Labs shall use its best efforts to confine planned operational suspensions to minimize disruptions to Customer, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, Lifted Labs will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
9. Third Party Interactions. Customer acknowledges and agrees that Lifted Labs may use licensors and third party providers, such as hosting partners, in connection with making the Service available to Customer and Customer agrees to be bound by their respective terms and conditions of service that have been communicated or made available to Customer. In addition, Lifted Labs may integrate the Service with third party products and services that Customer may use at Customer’s option and sole risk. Access to and use of any such third party products and services are subject to the separate terms and conditions required by the providers thereof. As with the purchase of a product or service through any medium or in any environment, Customer should use its best judgment and exercise caution where appropriate. The integration of third party products and services into the Service does not constitute an endorsement by or association with Lifted Labs, even if Lifted Labs’ name or logo is used with the third party products or services as part of a co-branding or promotional arrangement. Customer acknowledges and agrees that Lifted Labs does not warranty or guaranty such integrations or third party products and services, and is not responsible for, and shall have no liability, directly or indirectly, arising out of Customer’s use of any such integrations or the third party products and services obtained thereby.
10. License Fee; Charges and Payment of Fees. Company shall pay all fees or charges to its Lifted Labs account in accordance with the fees, charges, and billing terms of Lifted Labs in effect at the time a fee or charge is due and payable, without setoff or counterclaim. Lifted Labs’ current schedule of fees and charges is agreed upon at time of billing with each individual customer. The initial license fee will be equal to the license fee for the level of Service specified in the Order Form, and may be increased at the expiration of the License Term, provided that Lifted Labs will give Customer at least thirty (30) days’ notice of such increase. All fees are non-refundable. Monthly license fees shall be paid monthly in advance on or before the first day of the month for which such license fees are incurred (or upon submission of the Order Form, pro-rated for the actual number of days remaining in the month in which the Service is commenced, as applicable), in accordance with Section 12. Annual license fees shall be paid annually in advance commencing with the date the Order Form is submitted and thereafter on the anniversary date of the commencement of the annual license. Company will pay the license fee owed for the entire License Term (except in the case of pro-rated initial partial monthly license fees), whether or not such license is actively used. Lifted Labs reserves the right to modify its fees and charges and to introduce new or modified fees and charges at any time, upon at least thirty (30) days’ prior notice to Customer. Customer’s continued use of the Service after a price change becomes effective constitutes Customer’s agreement to pay the changed amount.
11. Other Fees. Customer is allotted the maximum disk storage space specified on the Order Form at no additional charge or, if none is specified on the Order Form, one hundred (100) MB per User of data storage (which would include such items as a User’s contacts) and fifty (50) MB per User of bulk file storage. Maximum bandwidth per User allowable is (100) GB per month. Any disk storage or bandwidth in excess of these limits will be charged to Customer at Lifted Lab’s then-current rate. Additional charges such as SMS may be charged upon prior agreement between Customer and Lifted Labs.
12. Billing and Renewal; Billing Information. Lifted Labs charges and collects for use of the Service by billing the Customer in advance for the licensing fees. Other fees and charges incurred by Customer in connection with the Service are billed only after they have been incurred by the Customer. Lifted Labs will automatically renew and process Customer payment information on file each month/year. The renewal license fee will be equal to the then-current license fee in effect at the time of renewal license fee for the level of Service specified in the Order Form. Fees and charges for other services will be charged on an as-quoted basis, as set forth in the Order Form or otherwise communicated to Customer before such services are provided. In addition to any fees and charges payable to Lifted Labs hereunder, Customer may incur other charges to third parties incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges. Customer shall provide Lifted Labs with complete and accurate billing and contact information, including, without limitation, the name and telephone number of an authorized billing contact and Customer’s Administrator, and shall update this information within thirty (30) days of any changes to it. All bills will be deemed correct unless disputed by Customer within sixty (60) days. All charges are final and non-refundable, and no refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription or license.
13. Taxes. Lifted Labs’ fees and charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, which Customer agrees to pay based upon where Customer is domiciled. If Lifted Labs has the legal obligation to pay or collect taxes for which Customer is responsible under this Agreement, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Lifted Labs with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable to Lifted Labs under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If Customer is required to deduct or withhold any taxes from such payments, then the sum payable hereunder shall be increased as necessary so that, after making all required deductions or withholdings, Lifted Labs receives an amount equal to the sum it would have received had no such deduction or withholding been made. Additionally, Customer shall provide us with documentation that the deducted or withheld amounts have been paid to the relevant taxing authorities.
14. Non-Payment. Without limiting any other rights or remedies available to Lifted Labs hereunder, Lifted Labs may suspend or terminate this Agreement and Customer’s access to the Service if Customer’s account becomes delinquent. The past due balance on all invoices will accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, if less, and Customer will pay all expenses of collection, including, without limitation, legal fees. Customer will continue to be charged the applicable license fee during any period of suspension for the License Term and any automatic renewal thereof. All unpaid fees or charges at the time this Agreement is terminated by either Lifted Labs or Customer will be immediately due and payable by Customer, and Customer authorizes Lifted Labs to charge such unpaid fees to Customer’s credit card or otherwise bill Customer for such unpaid fees or charges. Lifted Labs may impose a reconnection fee in the event Customer’s account is suspended or this Agreement is terminated and Customer thereafter requests access to the Service. Without limiting any other rights or remedies of Lifted Labs hereunder, Customer acknowledges and agrees that Lifted Labs has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted at any time and without notice if payment of fees or charges are delinquent.
15. Level of Service; Term and Renewal; Termination or Change in Level of Service with Notice. This Agreement is effective as of the Effective Date for either the level of Service specified in the Order Form, and for any free trial period. The term (“License Term”) of this Agreement will be either an Annual Term or a Monthly Term, as herein defined, as designated on the Order Form, and in the case of a free trial, “License Term” means the free trial period. An “Annual Term” commences on the Effective Date and ends on the day before the first anniversary thereof, and is automatically renewed for successive additional periods of one year each at Lifted Lab’s then-current fees at the time of each renewal. A “Monthly Term” commences on the Effective Date and ends on the day before the same calendar day of the next succeeding calendar month, and is automatically renewed for successive additional periods of one month each at Lifted Lab’s then-current fees at the time of each renewal. If no License Term is specified in the Order Form, the License Term will be deemed to be a Monthly or Annual Term. Either party may terminate this Agreement, or change the level of Service, effective only upon the expiration of the then-current License Term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the License Term; provided, however that this Agreement and Service shall automatically terminate with respect to any free trial period at the expiration of the free trial period without any notice by Lifted Labs, unless an Order Form for continued Service is completed by Customer and accepted by Lifted Labs and the applicable license fee is paid by Customer prior to the expiration of the free trial period. Only one free trial period is permitted per Customer (organization or person) (see Section 22, below). Any such notice by Customer must be given by the Customer’s Administrator to Lifted Labs by email to email@example.com. In the event this Agreement is terminated by notice as provided in this section, or upon expiration of a free trial period, Lifted Labs will provide a file of the Customer Data to Customer, in the form available to Lifted Labs, if requested by the Customer’s Administrator within thirty (30) days of such termination or expiration. Customer acknowledges and agrees that Lifted Labs has no obligation to retain the Customer Data, and may delete such Customer Data, at any time after (30) days from the date of termination by notice or expiration of a free trial period under this section.
16. Termination or Suspension without Notice. Lifted Labs may terminate this Agreement or suspend Service to the Customer at any time and without notice if Lifted Labs determines in its sole discretion that Customer has materially breached any provision of this Agreement or if Lifted Labs determines, in its sole discretion, that the provision of the Service to Customer is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason. A material breach of this Agreement shall be deemed to include, without limitation, Customer’s failure to pay any amount owed to Lifted Labs hereunder as and when due, the unauthorized use of the Lifted Labs Technology or Service by Customer or a User, and any breach of any duty, obligation or covenant of Customer under Sections 3 or 4 hereof. A material default shall also be deemed to occur if any credit card or other payment mechanism Customer has provided to Lifted Labs is invalid or charges are refused for such credit card or payment mechanism. Customer acknowledges and agrees that Lifted Labs has no obligation to retain the Customer Data, and may permanently delete such Customer Data, if this Agreement is terminated or the Service is suspended by Lifted Labs without notice under this section.
17. Representations and Warranties. Each party represents and warrants that it has the legal power and authority to enter into and be bound by this Agreement. Lifted Labs represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Lifted Labs help documentation under normal use and circumstances. Customer represents and warrants that it has not falsely identified itself or any User nor provided any false information to gain access to the Service and that Customer’s billing information is and will remain correct, complete and up-to-date.
18. Indemnification. Customer shall indemnify, defend (with counsel reasonably acceptable to Lifted Labs) and hold Lifted Labs, its licensors and third party providers, and each such party’s parent organizations, subsidiaries, affiliates, members, partners, shareholders, managers, directors, officers, employees, attorneys, agents and representatives and successors and assigns (collectively, “Affiliates”), harmless from and against any and all claims, demands, actions, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) (“Claim”) arising out of or in connection with: (i) Customer’s use of the Service; (ii) Customer’s breach of any representation or warranty of Customer made herein; or (iii) the breach of this Agreement by Customer or a User. Lifted Labs reserves the right to assume, at Customer’s sole expense, the exclusive defense and control of any such Claim and all negotiations for settlement or compromise thereof, and Customer agrees to fully cooperate with Lifted Labs in the defense of any such Claim and settlement or compromise negotiations relating thereto, as requested by Lifted Labs.
19. Disclaimer of Warranties. CUSTOMER’S USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LIFTED LABS, FOR AND ON BEHALF OF ITSELF AND EACH OF ITS AFFILIATES AND ITS LICENSORS AND THIRD PARTY PROVIDERS, HEREBY EXPRESSLY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. SPECIFICALLY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LIFTED LABS AND ITS AFFILAITES AND LICENSORS AND THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN ANY PARTICULAR MANNER OR IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS; (C) ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RETREIVABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS; (E) ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE WILL BE FREE OF SOFTWARE VIRUSES OR ANY OTHER COMPUTER CODES, FILES, OR PROGRAMS THAT ARE OF A DESTRUCTIVE OR MALICIOUS NATURE. LIFTED LABS AND ITS AFFILAITES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE SERVICE OR LIFTED LABS’ WEBSITE AND LIFTED LABS WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CUSTOMER AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
20. Electronic Equipment, Communication and Internet. THE SERVICE IS SUBJECT TO THE LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF ELECTRONIC EQUIPMENT, COMMUNICATION AND THE INTERNET, INCLUDING, WITHOUT LIMITATION, DELAYS AND THE INTERCEPTION, THEFT OR MISUSE OF CUSTOMER DATA BY THIRD PARTIES, OR ITS LOSS OR DESTRUCTION. LIFTED LABS IS NOT RESPONSIBLE FOR ANY SUCH PROBLEMS OR ANY LOSSES OR DAMAGES RESULTING FROM SUCH PROBLEMS.
21. Limitation of Liability. CUSTOMER ACKNOWLEDGES AND AGREES THAT LIFTED LABS, ITS AFFILIATES, LICENSORS AND THIRD PARTY PROVIDERS ARE NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND THOSE RELATING TO LOSS OF GOOD WILL, USE, REVENUE, DATA OR ECONOMIC ADVANTAGE, WORK STOPAGE, AND COMPUTER FAILURE OR MALFUNCTION) RELATING TO THIS AGREEMENT, THE USE OR INABILITY TO USE THE SERVICE, CUSTOMER DATA OR ANY CONTENT. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER LIFTED LABS OR ANY OF ITS AFFILIATES LICENSORS OR THIRD PARTY PROVIDERS HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS INTENDED TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY LIFTED LABS TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, OR ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOLE AND ENTIRE MAXIMUM LIABILITY OF LIFTED LABS, ITS AFFILIATES, LICENSORS AND THIRD PARTY PROVIDERS ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT CUSTOMER HAS PAID FOR THE SERVICE PURSUANT TO THIS AGREEMENT WITHIN THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CLAIM AROSE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO CUSTOMER. TO THE EXTENT ANY DISCLAIMER OR LIMITATION CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
22. Free Trial. Free trials are limited to one per Customer (organization or person), and are good for a term commencing with the Effective Date and terminating on the day before the same calendar day of the next succeeding calendar month. Free trials only include access to a web-based version of the Service; they do not include mobile device applications, and do not include all features or functions available in the Service. Free trials also do not include support, or any Service for which other customers of Lifted Labs incur a fee or charge. Lifted Labs may terminate a free trial at any time for any reason, and Lifted Labs has no obligation to retain any Customer Data provided using the Service during the free trial period, all of which may be permanently deleted by Lifted Labs at any time.
23.1. Binding Arbitration. Customer and Lifted Labs agree that any dispute between Customer and Lifted Labs shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”), using interpretations under California law, and conducted in accordance with its Commercial Arbitration Rules in Los Angeles, California, except as otherwise provided below. Customer and Lifted Labs will agree on another arbitration forum if AAA ceases operations. The arbitration will be conducted before a single arbitrator, and will be limited solely to the dispute between Customer and Lifted Labs. The arbitrator will not be entitled to modify this Agreement. The arbitrator’s award, including attorneys’ fee, shall be binding and may be entered as a judgment in any court of competent jurisdiction.
23.2. Exceptions. This Section 23 shall not apply to: (a) any dispute relating to the violation, or threatened violation, of Lifted Labs’ Intellectual Property Rights, or (b) any matter which is within the jurisdiction of a probate, small claims or bankruptcy court.
23.3. Class Action Waiver. No class, collective, representative or private attorney general theories of liability or prayers for relief may be maintained in any arbitration held under this Agreement. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. Notwithstanding any other provision of this Agreement to the contrary, the arbitrator in any arbitration held under this Agreement may award money or injunctive relief only in favor of the individual party seeking relief, and only to the extent necessary to provide relief warranted by that party’s individual claim. An arbitration award and any judgment confirming such award shall only apply to that specific case, and cannot be used in any other case except to enforce the award itself. If a court decides that this Subsection 23.3 (Class Action Waiver) is not enforceable or valid, then the entire Section 23 (Arbitration) will be null and void, but all other provisions of this Agreement shall remain valid.
23.4. Waiver of Right to Trial and Jury. Customer understands that, in the absence of this provision, Customer would have had a right to litigate disputes through a court, including the right to litigate claims on a class-wide or class action basis, and with a jury trial, and that Customer has expressly and knowingly waived those rights and agreed to resolve any disputes through final, binding arbitration in accordance with the provisions of this Section 23.
24. Security. Lifted Labs reserves the right to monitor all network traffic using the Service, including, without limitation, Customer Data, to identify and/or block unauthorized attempts or intrusions to upload or change information or cause damage to the Service in any fashion. Customer and its Users expressly consent to such monitoring.
25. Copyright and Trademark Notices; Use of Marks. Except as otherwise expressly set forth herein, this Agreement, the Content, and the Service are copyright ©2017 Lifted Labs LLC. All rights reserved. The Lifted Labs name, logo and the product names associated with the Service are either trademarks, service marks, or registered trademarks of Lifted Labs, and no right or license is granted to use them. The names of any actual companies and products mentioned on the Service may be the trademarks or service marks of their respective owners. The Content is provided to Customer and Users AS IS for use in connection with the Service provided pursuant to this Agreement, may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of Lifted Labs, its licensors or other owners of any Intellectual Property Rights in or to the Content. Customer hereby grants Lifted Labs permission to use Customer’s trade names, trademarks, service marks, logos, domain names and the like on Lifted Labs’ website and in other promotional materials solely for the purpose of promoting or advertising Customer’s use of the Service, provided such use is in accordance with Customer’s usage guidelines.
26. General Provisions.
26.1. Notices. Lifted Labs may give notice by means of a general notice on or through the Service, by electronic mail to the email address for Customer’s Administrator, or by written communication sent by first class mail to Customer’s address on record in Lifted Labs’ account information. Such notice shall be deemed to have been given two (2) days after mailing or posting (if sent by first class mail) or one (1) day after sending (if sent by email). Customer may give notice to Lifted Labs (such notice shall be deemed given when actually received by Lifted Labs) at any time by any of the following, addressed to Lifted Labs and marked to the attention of Lifted Labs’ Legal Department: (a) by first class mail to 11901 Santa Monica Blvd. #663 Los Angeles, Ca. 90025.
26.2. Entire Agreement. This Agreement, together with any applicable Order Form, comprises the entire agreement between Customer and Lifted Labs and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. In the event of a conflict between the terms of this Agreement and any Order Form, the terms of this Agreement shall prevail. No text or information set forth on any purchase order, preprinted form or other document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement, except as herein specifically provided. No oral or written information or advice given by Lifted Labs, its Affiliates, licensors or third party providers will create any warranty or in any way increase the scope of the warranties, if any, set forth in this Agreement.
26.3. Amendment and Modification to Terms. Lifted Labs reserves the right to amend or modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on its website or communicated to Customer using the Service. Customer is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Customer’s consent to such changes.
26.4. Waiver. The failure of Lifted Labs or any of its Affiliates to insist upon strict adherence to any term or condition of this Agreement shall not constitute a waiver of such term or condition, and shall not be considered a waiver or limitation of that party’s right thereafter to insist upon strict adherence to that term or condition or any other term or condition, contained herein. Any waiver by Lifted Labs must be in writing and signed by Lifted Labs to be legally binding.
26.5. Governing Law; Jurisdiction. The enforceability and interpretation of Section 23 (Arbitration) will be determined by the Federal Arbitration Act (including its procedural provisions), and determined by arbitration as provided herein. Apart from Section 23, this Agreement and Customer’s use of the Service shall be governed by and construed in accordance with California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 23, all disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California, and Customer hereby consents to the personal jurisdiction of said courts.
26.7. Severability; Survivability. The provisions of this Agreement are intended to be severable. If for any reason any provision hereof is held invalid or unenforceable in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions hereof, which shall continue to be in full force and effect. The representations, warranties, and covenants of this Agreement shall survive the expiration of any License Term, and the termination of this Agreement, together with all other provisions hereof necessary or appropriate to effectuate the purpose and intent of this Agreement.
26.8. Assignment; Successors and Assigns. This Agreement may not be assigned by Customer without the prior written consent of Lifted Labs, but may be assigned without Customer’s consent by Lifted Labs in connection with a merger, acquisition, reorganization or sale of assets, provided the assignee agrees to be bound by the terms of this Agreement. Any purported assignment in violation of this section shall be void and of no effect. This Agreement shall be binding upon and inure to the benefit of each party and their respective permitted successors and assigns.
26.9. Relationship of the Parties. No joint venture, partnership, employment, or agency relationship exists between Customer and Lifted Labs as a result of this Agreement or use of the Service, and neither party has any authority to bind the other in any respect.
26.10. Force Majeure. Lifted Labs shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Lifted Labs’ reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation, action or inaction of governmental, civil or military authority, fire, strike, lockout or other labor dispute, flood, terrorist act, war, riot, theft, earthquake and other natural disasters.
26.11. Limitations Period. No arbitration, lawsuit or other action may be brought by Customer against Lifted Labs, its Affiliates, licensors or third party providers on any claim or controversy based upon or arising in any way out of this Agreement or the Service more than one (1) year from the date on which Customer knew or reasonably should have known of an event for which a cause of action arose, regardless of the nature of the claim or form of action, whether in contract, tort, or otherwise.
27. Certain Definitions.
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
“Agreement” means these online terms of service, the Order Form(s), the Privacy and Security Policy at www.lifted.app/privacy, and any other materials available on the Lifted Labs website specifically incorporated herein by reference, as such materials, including the terms of this Agreement, may be updated by Lifted Labs from time to time in its sole discretion.
“Content” means the audio and visual information, documents, software, products and services contained in the Service, or made available to Customer in the course of using the Service.
“Customer Data” is defined in Section 5.
“Customer’s Administrator(s)” means those Users designated by Customer who are authorized to purchase licenses for the Service online using the Online Order Center or by executing written Order Forms and to create, modify and discontinue User accounts and otherwise administer Customer’s use of the Service.
“Effective Date” means the earlier of the date an Order Form submitted by Customer is accepted by Lifted Labs, the date this Agreement is accepted by Customer by selecting the “I Accept” option presented on the screen after this Agreement is displayed when purchasing licenses online using the Online Order Center, or the date Customer actually begins using the Service.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Lifted Labs” means Lifted Labs LLC, a Delaware limited liability company.
“Order Form(s)” means the form evidencing the initial subscription for the license for the Service and any subsequent order forms submitted online through the Online Order Center, or otherwise in written form, specifying, among other things, the “Start,” “Grow,” “Cultivate” or other level of Service contracted for, the applicable license fee, License Term, billing period, and other fees and charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (provided, however, that in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).
“Online Order Center” means Lifted Labs’ online application that allows the Customer’s Administrator to, among other things, obtain a license for the Service, and add, modify or discontinue Users of the Service.
“Lifted Labs Technology” means all of Lifted Labs’ proprietary and licensed technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Lifted Labs in providing the Service.
“Service” means Lifted Labs’ hosted online application and service, including, without limitation, the specific edition of its “Start,” “Grow” and “Cultivate” online application development and service packages, or other services identified in an Order Form for Customer, developed, operated, and maintained by Lifted Labs, accessible via http://www.lifted.app or another designated website or IP address, or ancillary services rendered to Customer by Lifted Labs, to which Customer is being granted access under this Agreement, including the Lifted Labs Technology and the Content.
“User(s)” means Customer’s employees, representatives, consultants, contractors or agents who use the Service for or on behalf of Customer and have been supplied user identifications and passwords by Customer or by Lifted Labs at Customer’s request.
Lifted Labs Terms of Service – Effective Date: May 1, 2017
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