Terms of Service
These Terms of Service (“Terms of Service,” “Terms” or “TOS”)govern your access and use of www.lunella.com (the “Site”) and other digital services, including, for example associated websites, mobile applications and platforms, provided by Lunella, LLC (“Lunella,” “we,” “us”) in connection with the Site (collectively, the “Service”). These Terms apply to any person or entity who accesses or uses any portion of the Service (“User,” “you,” “your,”). Read these Terms carefully. By using the Service, you acknowledge that you understand these Terms and agree to be bound by them. If you do not accept these Terms, you must not access or use the Service.
- THESE TERMS CONTAIN PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE DISPUTES THROUGH ARBITRATION ON AN INDIVIDUAL BASIS.
- WE ARE NOT A HEALTHCARE PROVIDER. THE SERVICE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL JUDGMENT, DIAGNOSIS, OR TREATMENT. YOUR USE OF THE SERVICE DOES NOT CONSTITUTE THE PROVISION OF TREATMENT OR ESTABLISH A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND LUNELLA.
- BY USING THE SERVICES, YOU MAY ENTER INTO A DOCTOR-PATIENT RELATIONSHIP WITH OUR BUSINESS PARTNERS, PWNHEALTH AND ITAMAR HEALTH.
- IF YOU BELIEVE A MEDICAL CONDITION IS URGENT OR LIFE-THREATENING, CONTACT YOUR LOCAL EMERGENCY MEDICAL SYSTEM IMMEDIATELY.
- APPLICATION OF OR RELIANCE ON ANY OF THE CONTENT, TECHNIQUES, IDEAS, OR SUGGESTIONS ACCESSED THROUGH THE SERVICE IS AT YOUR SOLE DISCRETION AND RISK.
1. THE SERVICE
Through the Service, we provide you with information relating to sleep disorders and the opportunity to complete a survey designed to assess whether you have characteristics associated with sleep apnea (the “Survey”). We facilitate communication between you and certain third parties, including a board-certified physician and other medical professionals licensed to prescribe a Home Sleep Apnea Test, the WatchPATTM ONE obstructive sleep apnea testing device, by transmitting your Survey results and other health information that you may provide through the Service. We may also transmit to you a prescription for therapeutic treatment of sleep apnea, if such treatment is deemed appropriate by the physician reviewing physician your Survey results.
2. OUR PRIVACY PRACTICES
2. YOUR ELIGIBILITY AND REGISTRATION OBLIGATIONS
If order to receive the Service, you will need to provide certain information to us, including your date of birth, financial information, and your contact details. We will use the information you provide to register you as a member of the Service and generate a PIN code that you will need to access certain feature of the Service, including the WatchPATTM ONE. When you provide any information to us, you warrant and represent that, under the laws of the United States or other applicable jurisdictions, you that have the legal ability (capacity) to enter into a binding agreement under and are at least eighteen (18) years old. You must: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may provide you with an opportunity to correct the Registration Data.
Please note, the Service may not be fully compatible with all devices. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime charges), including any service fees or equipment costs associated with such access.
3. YOUR ACCOUNT PASSWORD AND SECURITY OBLIGATIONS
You may receive or create a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account designation, and are fully responsible for all activities that occur under your password or account. You agree to: (a) immediately notify us of any unauthorized use of your password or account or any other breach of security,(b) ensure that you exit from your account at the end of each session, (c) and not use another user’s account at any time, without the permission of the account holder. We cannot and will not be liable for any loss or damage arising from your failure to comply with this Section, including any losses you may incur as a result of someone else using your password or account, either with or without your knowledge.
4. COMMUNICATING WITH YOU
As part of the Service, you may receive email, regular mail, and other notifications and communications, such as notifications through the Service, itself, and also tele-communications, text messages, voice calls, alerts, and other electronic communications relating to the Service, including certain marketing communications, service announcements, and administrative messages from Lunella, our Business Partner, and our respective service providers. You consent to receive such communications and agree that any such communications that we send to you shall be legally effective when sent. You agree that any notices sent by us by email satisfy any requirement that the notices be provided in writing. . For notices made by email, the date of receipt on the message will be deemed the date on which such notice is transmitted.
If you do not agree, do not accept these Terms. You may have the right to withdraw your consent to receiving certain electronic communications, and, when required by law, we will provide you with paper copies of all documents and records upon request. You may do so by contacting us at the phone number or email address provided under the “Contact Us” section at the end of these Terms. If you withdraw your consent, we reserve the right to terminate our agreements with you. To receive or access the notices we send via email, you must have Internet access and a computer or device with a compatible web browser. You will also need software capable of viewing files in Portable Document format (“PDF”).
To retain the notices we send you, your device or computer must have the ability to download and store electronic communications, including PDF files. By accepting these terms, you verify that you are able to receive, access, and retain the notices we may send. You may change your contact information for notification purposes at any time by contacting us at the phone number or email address provided under the “Contact Us” section at the end of these Terms.
5. YOUR USE OF SERVICE AND GRANT OF LICENSE
Persons under the age of eighteen (18), or the equivalent minimum age in the relevant jurisdiction, are not permitted to access or use the Service unless their parent has consented in accordance with applicable law.
Except as otherwise set forth in these Terms,, we grant you a limited, non-exclusive, revocable, nontransferable, and license to: (a) access and use the Services, (b) access and view information that we may make available through the Service, including surveys, data, text, software, music, sound, photographs, graphics, video, messages or other materials (collectively, “Our Materials”), (3) access and use the software and mobile applications provided in connection with the Service, and (4) use the software that is embedded into Services solely as authorized in these Terms.. The aforementioned license is provided solely for your personal, non-commercial use of the Service in accordance with these Terms. Use of the Service for any public or commercial purpose is strictly prohibited.
You will not assign (or grant a sub-license of) your rights to use the Service, grant a security interest in or over your rights to use the Service, or otherwise transfer any part of your rights to use the Service. You will not use, sublicense, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Our Materials or any portion of the Service (including any software or mobile applications), except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Lunella or its licensors, except for the licenses and rights expressly granted in these Terms.
If you make copies the Site or of any of Our Materials, you must retain all copyright and other proprietary notices contained in the Site and Our Materials as provided by us. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, transmit, stream, broadcast or otherwise exploit the content made available on or through the Service, except as expressly permitted in these TOS. As between you and us, we own the Service, Site and Our Materials. The Service, Site and Our Materials are protected under United States and international copyright laws. Any unauthorized use of the Service, Site or Our materials may violate copyright, trademark, and other laws.
6. OWNERSHIP AND USE OF CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SITE
We do not claim ownership of Content you submit or make available on the Service, including any Survey data. You may voluntarily provide (in connection with use of the Service, of our products, third party products or otherwise) suggestions, comments or other feedback to us with respect to items or information provided by us on the Service or otherwise. We are not required to hold such feedback in confidence, and such feedback may be used by us for any purpose without obligation of any kind; provided, that we will not disclose the source of specific feedback without your consent; and nothing in this TOS restricts the use by you of such feedback or ideas that you provide to us.
7. MEMBER CONDUCT
As a condition of your use of the Service, you shall comply with all applicable laws, rules, regulations, and guidance when using the Service, including, but is not limited to, these TOS and applicable laws in the jurisdiction where you may be accessing the Service. When using the Service, you agree to comply with all applicable laws, rules, and regulations. Without limitation, you warrant that you shall not, and shall not permit any third party, directly or indirectly:
- use Service for illegal purposes, or in violation of any applicable laws or regulations;
- transmit or distribute any Information that you do not have a right to transmit under any law or under contractual or fiduciary relationships;
- transmit or distribute the proprietary information of another (whether protected by copyright, trademark, trade secret, right of publicity or other proprietary right) without the express permission of the owner of such right, including unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service,;
- copy, sell, resell or exploit for commercial purposes, any portion of Service, except as expressly permitted;
- transmit or distribute any User Information that is unlawful, deceptive, false, stolen, threatening, harassing, obscene, pornographic, defamatory, racially or ethnically objectionable, or in violation of the personal privacy rights of another;
- transmit or distribute any information that contains software viruses or any other code designed to interrupt, destroy or limit the functionality of any software, hardware or telecommunications equipment;
- take any action that imposes an unreasonable or disproportionately large load on the Service infrastructure or interferes with the proper working of Service;
- use Service to send unsolicited commercial communications in any form (spam);
- attempt to override or circumvent any of the security components on software embodied within the Service (“Software”) or usage rules set by us and/or content providers who provide content to the Service;
- use another user’s credentials to access Service; or
- assist or permit any persons in engaging in any of the activities described above.
The Service may, in our sole discretion, permit you to post, upload, publish, submit or transmit information, data, text, messages or other materials made available through the Service by you or other users of the Service (“Content”). You are entirely responsible for all Content that you upload, transmit or otherwise make available via the Service. We do not control the Content posted via the Service and, as such, do not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
The technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
8. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that we may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that message board postings or other uploaded Content will be retained by the Service, the maximum number and size of postings that may be made through an account on the Service, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. We have no responsibility or liability for the deletion or failure to store any posting and other communications or other Content maintained or transmitted by the Service. We may modify these general practices and limits from time to time.
9. ENFORCEMENT RIGHTS AND TERMINATION
We may at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. We shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. . We have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof) at any time and without prior notice. We may, under certain circumstances and without prior notice, immediately terminate your account, any associated email address, and access to the Service. Cause for such termination may include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) you have engaged in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Service or the purchase of any products or services via the Service. Termination of your account includes (i) removal of access to all offerings within the Service, (j) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (k) barring further use of the Service. Further, all terminations for cause shall be made in our sole discretion and we shall not be liable to you or any third-party for any termination of your account, any associated email address, or access to the Service.
10. TRADEMARK INFORMATION
All trademarks, trade names, logos, and service marks appearing on or through the Service are owned and licensed by us (the "Marks"). Without our prior permission, you may not display or use in any manner, the Marks. All other trademarks not owned by us that appear on this Site or in conjunction with any Service are the property of their respective owners, who may or may not be affiliated with or connected to us.
User acquires no right, title or interest in or to the Marks, or any other intellectual property rights of the other party by virtue of the provision or use of Services. All content contained on the Services, unless otherwise indicated, is protected by law including, but not limited to, United States copyright, trade secret, and trademark law, as well as other state, national, and international laws and regulations. Accordingly, any unauthorized use of Services or the Marks may violate copyright laws, trademark laws, trade secret laws, or laws relating to privacy and publicity.
11. NOTICE AND PROCEDURE FOR MAKING CLAIM OF COPYRIGHT INFRINGEMENT UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of users who violate the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent with the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. 512 (“DMCA”):
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Services;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Lunella’s Agent for Notice of Claims of Copyright is:
100 Cambridge Street
Boston, MA 02114
Under the DCMA, any person who knowingly makes material misrepresentations in a notification of claimed infringement or in a counter-notification may be liable for damages. We reserve the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
12. OUR PROPRIETARY RIGHTS
The Service and Software contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Content contained in advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
You may not access the Service by any means other than through the interface that is provided by us for use in accessing the Service.
In general, the Service is provided in a manner which does not result in your downloading or using any of our Software. In the event that we do, however, provide you with Software (such as a plug-in or similar item), we grant you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer in connection with your access to the Service; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You may not modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You may not rent, lease, loan, sell, distribute or create derivative works based on the Software, in whole or in part.
13. APPLE END USER TERMS
You acknowledge and agree that (i) this Terms are entered into by you and Lunella, and not Apple, Inc. (“Apple”); (ii) Lunella, and not Apple, is solely responsible for the Service; (iii) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the Service; (iv) in the event of any failure of the Website to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price you paid for the Service; (v) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Website; (vi) Apple is not responsible for any claims that you have arising out of your use of the Service; (vii) Apple will have no responsibility whatsoever for the investigation, defense, settlement or discharge of any third-party claim that the Website infringes that third party’s intellectual property rights; and (viii) Apple and its subsidiaries are third party beneficiaries of these Terms and, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Terms against you as a third party beneficiary.
14. DEALINGS WITH THIRD PARTIES
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. The Service will also provide you with access to Physicians who work with our Business Partner’s PWNHealth and Itamar Medical. While we have entered into appropriate agreements with our Business Partners in order to offer you the Service, please note that some of your interactions with their Physicians may fall outside the scope of the Terms, which only form a binding contract between you and Lunella. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources, and we do not endorse and are not responsible or liable for any Content, advertising, products, services, advice or other materials on or available from such sites or resources. We are not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource. In particular, we are not responsible for any advice provided to you by any Physicians relating to your use of the Service your purchase of any products from us
15. ADDITIONAL TERMS AND THIRD-PARTY AGREEMENTS
Additional terms may apply to certain aspects or features of the Service, and we will notify you of any additional terms prior to your use of such features. As noted above, our Business Partners, including PWNHealth and Itamar Medical, have entered into separate agreements with us regarding the Service (“Partner Agreement”). In order to receive certain aspects of the Service, our Business Partner may also require you to enter into their own agreements, which may be additional or different to these Terms.
We may provide other products (including software) or services under the terms of a separate agreement between you and us (each, an “Other Agreement”). Our obligations with respect to any product or service that we make available to you under any Other Agreement shall be governed solely by the Other Agreement under which such product or service is provided and these TOS shall not be deemed or construed to alter the terms of such Other Agreements. For example, the use of the WatchPATTM ONE obstructive sleep apnea testing device is governed by the terms of the end user license agreement which accompanies the device.
16. BILLING; TAXES
You will be responsible for charges, applicable taxes and other fees (“Charges”) resulting from your use of the Service. Charges may include, among other things, fees for the purchase of a WatchPATTM ONE device. Charges associated services provided by Physicians at our Business Partners, including PWNHealth in the amount of $26.00 for interpreting your screening survey results and Itamar Medical in an amount of up to the $75.00 for the interpreting your sleep test results and providing treatment, if appropriate given your diagnosis. The fees you pay to which are not paid to Lunella.
Purchases that you make on or through the Service will be charged to your designated credit card or other method of payment. You are responsible for purchases made by you or an authorized user account that you have caused to be created or for which you have otherwise indicated your agreement to be responsible for payment. This means that, unless your account or credit card information is obtained unlawfully or fraudulently, you will be responsible for all usage and purchases made on your card. For your convenience and the further protection of your payment card information, we may offer you the opportunity to make payments using a platform or service provided by third-party processor, including, for example, Bread and Apple Pay, which encrypts your financial information. Where you choose to make any necessary payment through a third party-payment provider, please note that you may subject to additional or different for your use of those payment services.
We will not bill insurance companies for any purchases that you make and we cannot provide any guidance as to whether your insurance provider will cover any such purchases. Under no circumstances should you attempt to bill or submit a claim for reimbursement to Medicare or any state Medicaid program for any Service or any medical services provided by Physicians as a part of our Service.
You should let us know about any billing problems or discrepancies within ninety (90) days after they first appear on your account statement. If you do not bring them to our attention within ninety (90) days, you agree that you waive your right to dispute such problems or discrepancies. Additionally, if any charges are being collected by us on behalf of a supplier, then such supplier shall be an express third party beneficiary of this section.
17. PAYMENTS, RETURNS, AND EXCHANGES
30-Day Money-Back Guarantee Offer: Limited-Time Offer. If you are not completely satisfied with your Lunella experience within 30 days of purchase, Lunella will give you your money back for the price you paid for the Lunella Home Sleep Test. Customer must contact Lunella customer service at 833-586-3552 prior to 30 days after purchase and request the "Money-Back Offer" to take advantage of this offer. Please allow 2-4 weeks for refund. Offer cannot be utilized multiple times and is not transferable.
Expect as otherwise stated in these Terms, all payments are non-refundable, and no refunds will be due to you for any reason, even if, without limitation, you are not satisfied with the Service, you are not able to access the Service, the Service changes, or we freeze, change, or terminate your membership.
18. INTERNATIONAL USE
You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin. You agree that you will not export or re-export the Website in any form in violation of the laws of the United States or any foreign jurisdiction. You represent and warrant that: (i) you are not located in a country that is subject to 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.
The Service is not intended to be a substitute for medical advice from a qualified health care provider. You should always consult with a qualified health care provider with respect to any matter relating to your health, especially symptoms that may require diagnosis, medical attention, or ongoing treatment. We are not physicians and we do not diagnose sleep apnea or other sleep disorders, interpret sleep tests or provide other medical services. The Service will facilitate communication and data-sharing with licensed physicians or other medical professionals who can provide their own services to you. Lunella does not participate in communications between you and any medical professional that you may interact with through the Service, except as necessary to provide the Service, including, for example, transmitting your Survey and sleep test results for analysis.
We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you may receive through the Service. If you rely on any information made available on or through the Service, you do so solely at your own risk. The Service is provided "AS-IS" and we assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.
20. DISCLAIMER OF WARRANTIES
WE MAKE NO WARRANTY AS TO THE SERVICE. YOUR USE OF THE SERVICE INCLUDING YOUR RELIANCE ON ANY INFORMATION OR MATERIALS AVAILABLE ON THE SERVICE IS AT YOUR SOLE RISK. WE ARE NOT PHYSICIANS AND WE DO NOT PROVIDE MEDICAL ADVICE OR SERVICES. YOUR USE OF THE SERVICE OR YOUR PURCHASE OF ANY PRODUCTS OR SERVICES THROUGH THE SERVICE DOES NOT CREATE A PHYSICIAN- PATIENT RELATIONSHIP BETWEEN US. WHILE THE SERVICE MAY FACILITATE COMMUNICATIONS BETWEEN YOU AND PHYSICIANS, WE ARE NOT RESPONSIBLE FOR THE PHYSICIANS AND YOUR ENGAGEMENT WITH AND RELIANCE ON ANY ADVICE PROVIDED BY PHYSICIANS IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY INFORMATION OR MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR RELIANCE ON ANY SUCH INFORMATION OR MATERIALS OR FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH INFORMATION OR MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
21. LIMITATION OF LIABILITY
LUNELLA NOR OUR DIRECTORS, EMPLOYEES,AGENTS, PARTNERS, SUPPLIERS OR SERVICE PROVIDERS, OR ANY OF THEIR SUCCESSORS OR ASSIGNS, SHALL NOT BE LIABLE TO YOU, UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOSSES, OR EXPENSES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. WE ARE NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF ANY OTHER PARTY.
IN NO EVENT SHALL THE TOTAL LIABILITY OF LUNELLA NOR ITS AFFILIATED COMPANIES AND ITS AND THEIR RESPECTIVE CONTRACTORS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, SUPPLIERS, LICENSORS AND BUSINESS PARTNERS COLLECTIVELY, FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE WARRANTY OR OTHERWISE) EXCEED ONE HUNDRED U.S. DOLLARS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL OR OTHER DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF MAY NOT APPLY TO YOU.
You agree to defend, indemnify, and hold us and our subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, consultant and agents harmless from any claim or demand (including reimbursing us any reasonable attorneys' fees incurred by us in the defense of any such claim or demand), made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your access and use of the Service, your connection to the Service, your violation of the TOS, or your violation or alleged violation of any applicable federal, state or local laws, rules and/or regulations, infringement by you, or any third party using your account, of any intellectual property or other rights or any rights of another person or entity. We retain the right to retain counsel of our choosing in our sole discretion. Furthermore, you must cooperate in good faith to assist us in our defense and any settlement negotiations related thereto, and to reimburse us for reasonable settlement amounts, if any.
23. GENERAL TERMS
- Entire Agreement. These TOS constitute the entire agreement between both of us and governs your use of the Site and the Service, superseding any prior agreements between both of us with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services, affiliate services, third-party content, or third-party software.
- Choice of Law and Forum. These TOS and the relationship between both of us shall be exclusively governed by the laws of the United States and the State of New Hampshire without regard to its conflict of law provisions. Your exclusive forum for bringing any claim or cause of action against us is the courts located in Concord, New Hampshire U.S.A. You hereby accept and submit to the personal and exclusive jurisdiction of such courts in any proceeding or action. With respect to any such proceeding or action brought in such courts, you hereby irrevocably waive, to the fullest extent permitted by law: (a) any objection you may have now or in the future to such jurisdiction or venue, and (b) any claim that such action or proceeding has been brought in an inconvenient form. Nothing limits our right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or any other form of relief. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within ninety (90) days (or, if different, the minimum amount of time permitted by law) after such claim or cause of action arose or be forever barred.
- Arbitration. Notwithstanding anything herein, if we elect in our sole discretion to resolve any claim through arbitration, you must cooperate fully with and be bound by such arbitration, without further recourse of any kind. The American Arbitration Association (“AAA”) shall preside over such arbitration. Such arbitration shall be exclusively governed by the laws of the United States and the State of New Hampshire without regard to its conflict of law provisions. All proceedings shall take place in the City of Boston metropolitan area. If there is a conflict between the rules of the AAA and any provision of the TOS, the TOS shall govern. You are responsible for all costs that you incur in the arbitration, including without limitation, expert witnesses or attorneys. The reasonable filing fees and arbitrator’s costs and expenses shall be advanced by us. However, if the arbitration is decided in our favor, you must reimburse us for all of our fees, costs, and expenses related to the arbitration, including without limitation, all fees, costs, and expenses related to filing, arbitrators, expert witnesses, attorneys, and other third parties.
- Waiver and Severability of Terms. Our failure to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or provision. If any provision of these TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these TOS remain in full force and effect.
- No Third Party Beneficiaries. Except as otherwise expressly provided in these TOS, there shall be no third party beneficiaries to these TOS.
- No Right of Survivorship and Non-Transferability. Your account is non-transferable and any rights to your account or contents within your account terminate upon your death.
- Statute of Limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- Modification to Terms. We may change, modify, add or remove portions of these Terms (each, an “Update”) at any time and in our sole discretion without prior notice, and each Update will be effective immediately. If we make an Update, we will change the “Last Updated” date above. If we make material changes that would impact your use of the Service, we will endeavor to notify you of the changes prior to the changes taking effect, such as by posting a notice directly on the Service or by any other reasonable method. Your continued use of the Site will confirm your acceptance of the Update. We encourage you to frequently review these Terms of Service to ensure you understand the latest terms and conditions associated with use of the Site. If you do not agree to an Update, you must discontinue using the Site.
24. CONTACT US
If you have any questions regarding the Services or these Terms, please contact us at 833.586.3552.