IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT LEMONAIDE’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU ACT IN ACCORDANCE WITH SECTION 8.5 (AUTOMATIC RENEWAL) BELOW.PLEASE BE AWARE THAT SECTION 16 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT:
(1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND
(2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
The Application, the Website and the Services, (as these terms are defined herein) (each, a “Lemonaide Property” and collectively, the “Lemonaide Properties”) are protected by copyright laws throughout the world. Unless otherwise specified by Lemonaide in a separate license, your right to use any and all Lemonaide Properties is subject to the Agreement.
1.1 Application License. Subject to your compliance with the Agreement, Lemonaide grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
1.2 Updates. You understand that Lemonaide Properties are evolving. As a result, Lemonaide may require you to accept updates to Lemonaide Properties that you have installed on your computer or mobile device. You acknowledge and agree that Lemonaide may update Lemonaide Properties with or without notifying you. You may need to update third-party software from time to time in order to use Lemonaide Properties.
1.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Lemonaide Properties or any portion of Lemonaide Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Lemonaide Properties (including images, text, page layout or form) of Lemonaide; (c) you shall not use any metatags or other “hidden text” using Lemonaide’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Lemonaide Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of Lemonaide Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Lemonaide Properties. Any future release, update or other addition to Lemonaide Properties shall be subject to the Agreement. Lemonaide, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Lemonaide Property terminates the licenses granted by Lemonaide pursuant to the Agreement.
2.1 Registering Your Account. In order to access certain features of Lemonaide Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”).
2.2 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Lemonaide Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (y) notify Lemonaide immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Lemonaide has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Lemonaide has the right to suspend or terminate your Account and refuse any and all current or future use of Lemonaide Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. Lemonaide reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Lemonaide Properties if you have been previously removed by Lemonaide, or if you have been previously banned from any of Lemonaide Properties.
2.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Lemonaide.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all images, video, audio, audio-visual, text, materials and other content (collectively, “Content”), is the sole responsibility of the party that provided the Content to Lemonaide. This means that you, and not Lemonaide, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise input or make available (“Make Available”) through Lemonaide Properties (“Your Content”), and that you and other Registered Users of Lemonaide Properties, and not Lemonaide, are similarly responsible for all Content that you and they Make Available through Lemonaide Properties (“User Content”). Your Content also includes any Content that you create or generate through the use of the Lemonaide Properties, other than the Lemonaide Properties themselves.
3.2 No Obligation to Pre-Screen Content. You acknowledge that Lemonaide has no obligation to pre-screen Content (including, but not limited to, User Content), although Lemonaide reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Lemonaide pre-screens, refuses or removes any Content, you acknowledge that Lemonaide will do so for Lemonaide’s benefit, not yours. Without limiting the foregoing, Lemonaide shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Lemonaide in writing elsewhere, Lemonaide has no obligation to store any of Your Content that you Make Available on Lemonaide Properties. Lemonaide has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Lemonaide Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Lemonaide retains the right to create reasonable limits on Lemonaide’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Lemonaide in its sole discretion.
4. OWNERSHIP & LICENSE.
4.1 Lemonaide Properties. Except with respect to Your Content and User Content, you agree that Lemonaide and its suppliers own all rights, title and interest in Lemonaide Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Lemonaide Properties.
4.2 Your Content. Lemonaide does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Lemonaide Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide, to incorporate it in other works in any form, media or technology now known or later developed, and/or to train models and artificial intelligence using Your Content, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.3 License to Your Content. Subject to any applicable account settings that you select, you grant Lemonaide a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) and to train models and artificial intelligence using Your Content, for the purposes of operating and providing Lemonaide Properties to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Lemonaide Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Lemonaide, are responsible for all of Your Content that you Make Available on or in Lemonaide Properties. Any Content posted by you in your profile may not contain any violence, sexually explicit, or offensive subject matter as determined by Lemonaide in its sole discretion.
4.4 User Inputs. The Lemonaide Properties utilize software and technology including artificial intelligence to process user inputs to the Lemonaide Properties, such as musical compositions, sound recordings, or text prompts (the “Input,” which is part of Your Content hereunder), and generate and return outputs based on such Inputs (the “Output”). Lemonaide does not claim ownership of any of your Inputs. In addition to the license granted in Section 4.3, you acknowledge that Inputs (as well as the remainder of Your Content) may be used by Lemonaide to train, develop, enhance, evolve and improve its (and its affiliates’) AI models, algorithms and related technology, products and services (including for labeling, classification, content moderation and model training purposes), as well as for marketing and promotional purposes. As such, you hereby grant to the Lemonaide a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, fully paid, transferable, sublicensable right and license to use any Inputs Made Available by you or otherwise generated in connection with your use of the Services at any point, in connection with the purposes described above or otherwise as set forth in the remainder of this Agreement (including Section 13).
4.5 License to Outputs. Subject to your compliance with the Agreement Lemonaide grants you a non-exclusive, non-transferable, perpetual, worldwide, royalty-free, fully paid right to use Outputs you obtain through the Lemonaide Properties or otherwise generated in connection with your use of the Services, in combination with other sounds in music productions to create new recordings (each a "New Recording"). This means that you may modify, reproduce, publicly perform, distribute, transmit, communicate to the public, sublicense and otherwise use the Outputs as embodied in a New Recording, including for commercial purposes, in connection with the purposes described above or otherwise as set forth in the remainder of this Agreement (including Section 13). You (and/or any applicable third-party contributors or artists engaged by you in connection with the New Recording) will own any original contributions made to the New Recording that are not comprised of Outputs (e.g., added vocals or added instrumentation). For the avoidance of doubt, you will not own the Outputs.
4.6 Limitation on Use of Outputs. Notwithstanding anything to the contrary and with respect to both New Recordings, you may not (a) sublicense the Outputs in isolation as sound effects, loops, or as source material for any other form of sample (even if you modify the Outputs), (b) use or sublicense Outputs in a manner competitive to Lemonaide or its licensors, (c) sublicense, sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer all of the Output to a third party except as incorporated into a New Recording; (d) redistribute Outputs in new sample packs or (e) use any Outputs or portions of Outputs identified as made available for "preview" other than to internally and locally (on the Service) preview the applicable Output (and for the avoidance of doubt, "preview" Output may not be modified, reproduced, publicly performed, distributed, transmitted, communicated to the public, sublicensed, or otherwise used and may not be used for commercial purposes). If you represent a business entity, you agree that only one individual affiliated with that entity may use a downloaded Output as specified above.
4.7 Unoriginal Sounds. We make efforts to monitor our Service in order to identify Output is not original. If we learn that an Output previously provided to you violates the rights of any third party, or we have a good faith reason to believe the Output is not original, we may remove the Output from the Service and may use reasonable efforts to notify you. Lemonaide has no responsibility for the Outputs, or the originality or violation of any third party rights in connection with your use thereof.
4.8 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on Lemonaide Properties, you hereby expressly permit Lemonaide to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.9 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Lemonaide through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Lemonaide has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Lemonaide a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Lemonaide Properties and/or Lemonaide’s business.
5. USER CONDUCT. You are responsible for reviewing any Output prior to its use and exercising your own business and legal judgment as to its suitability for use. As a condition of use, you agree not to use Lemonaide Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Lemonaide Properties or (c) use any Imput or Output that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) includes any personal information or is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Lemonaide’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Lemonaide; (vi) interferes with or attempt to interfere with the proper functioning of Lemonaide Properties or uses Lemonaide Properties in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Lemonaide Properties, including but not limited to violating or attempting to violate any security features of Lemonaide Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Lemonaide Properties, introducing viruses, worms, or similar harmful code into Lemonaide Properties, or interfering or attempting to interfere with use of Lemonaide Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Lemonaide Properties. Lemonaide reserves the right to suspend or terminate your access to the Services for any failure by you to comply with this Section.
6. INVESTIGATIONS. Lemonaide may, but is not obligated to, monitor or review Lemonaide Properties and Content at any time. Without limiting the foregoing, Lemonaide shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Lemonaide does not generally monitor user activity occurring in connection with Lemonaide Properties or Content, if Lemonaide becomes aware of any possible violations by you of any provision of the Agreement, Lemonaide reserves the right to investigate such violations, and Lemonaide may, at its sole discretion, immediately terminate your license to use Lemonaide Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. INTERACTIONS WITH OTHER USERS.
7.1 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Lemonaide reserves the right, but has no obligation, to intercede in such disputes. You agree that Lemonaide will not be responsible for any liability incurred as the result of such interactions.
7.2 Content Provided by Other Users. Lemonaide Properties may contain User Content provided by other Registered Users. Lemonaide is not responsible for and does not control User Content. Lemonaide has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.
8. FEES AND PURCHASE TERMS.
8.1 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Lemonaide with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) through a payment provider (“Payment Provider”), or purchase order information, as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Lemonaide with your credit card number or PayPal account and associated payment information, you agree that Lemonaide is authorized to immediately invoice your Account for all fees and charges due and payable to Lemonaide hereunder and that no additional notice or consent is required. You agree to immediately notify Lemonaide of any change in your billing address or the credit card or PayPal account used for payment hereunder. Lemonaide reserves the right at any time to change its prices and billing methods, either immediately upon posting on Lemonaide Properties or by e-mail delivery to you.
8.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your annual package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable.
8.3 Taxes. The payments required under Section 8.2 (Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If Lemonaide determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Lemonaide shall collect such Sales Tax in addition to the payments required under Section 8.2 (Service Subscription Fees) of this Agreement. If any services, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Lemonaide, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Lemonaide for any liability or expense Lemonaide may incur in connection with such Sales Taxes. Upon Lemonaide’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
8.4 Withholding Taxes. You agree to make all payments of fees to Lemonaide free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Lemonaide will be your sole responsibility, and you will provide Lemonaide with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
8.5 Automatic Renewal. If you elect to purchase a Subscription, your Subscription will continue and automatically renew at Lemonaide’s then-current price for such Subscription until terminated in accordance with this Agreement. The frequency at which your Subscription renews (i.e., weekly, monthly, annually, etc.) will be designated at the time at you sign up for the Subscription and may be modified by you via your Account settings. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Lemonaide’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Lemonaide that your subscription will be automatically renewed, you will have thirty (30) days from the date of the Lemonaide notice), by logging into and going to the “Subscriptions” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please log in and go to the “Subscriptions” page. If you cancel or downgrade your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Lemonaide to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Lemonaide does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Lemonaide may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
8.6 Third-Party Billing. You may choose to be billed for, or receive access to, the Services through a third-party (including, Beatstars), in which case, your billing relationship will be directly with that third-party, additional terms may apply, and Service offerings may be limited. If you want to cancel or modify your subscription or manage your billing, you may need to do so through your account with such third-party. Lemonaide will not be liable to you for any claims arising out of or related to your purchase or use of third-party products or services.
9. INDEMNIFICATION. You agree to indemnify and hold Lemonaide, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Lemonaide Party” and collectively, the “Lemonaide Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Lemonaide Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; (e) your use of the Output; or (f) your violation of any applicable laws, rules or regulations. Lemonaide reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Lemonaide in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Lemonaide Properties.
10. DISCLAIMER OF WARRANTIES AND CONDITIONS.
10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF LEMONAIDE PROPERTIES IS AT YOUR SOLE RISK, AND LEMONAIDE PROPERTIES (INCLUDING ANY OUTPUT THEREFROM) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. LEMONAIDE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE LEMONAIDE PROPERTIES (INCLUDING ANY OUTPUT THEREFROM). THE SERVICES ARE INTENDED AS OUTPUT GENERATION TOOLS ONLY AND DO NOT CONSTITUTE ANY WARRANTY OR GUARANTY THAT THE OUTPUT WILL PROVIDE ACCURATE, TAILORED OR INFORMATIVE RESULTS OR BE FIT FOR THE PARTICULAR PURPOSE OR USE CASE.(a) LEMONAIDE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) LEMONAIDE PROPERTIES (INCLUDING ANY OUTPUT THEREFROM) WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF LEMONAIDE PROPERTIES (INCLUDING ANY OUTPUT THEREFROM) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF LEMONAIDE PROPERTIES (INCLUDING ANY OUTPUT THEREFROM) WILL BE ACCURATE OR RELIABLE; OR (4) YOU ARE THE LEGAL OWNER OF THE OUTPUT, OR THAT THE INPUT OR OUTPUT ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUT DOES NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. (b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH LEMONAIDE PROPERTIES, AS WELL AS ANY OUTPUT, IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS LEMONAIDE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. LEMONAIDE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM LEMONAIDE OR THROUGH LEMONAIDE PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.(e) FROM TIME TO TIME, LEMONAIDE MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT LEMONAIDE’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
10.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT LEMONAIDE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD LEMONAIDE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF LEMONAIDE PROPERTIES. YOU UNDERSTAND THAT LEMONAIDE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF LEMONAIDE PROPERTIES. LEMONAIDE MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. LEMONAIDE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH LEMONAIDE PROPERTIES.
10.4 Third-Party Materials. As a part of Lemonaide Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Lemonaide to monitor such materials and that you access these materials at your own risk.
11. LIMITATION OF LIABILITY.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL LEMONAIDE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT LEMONAIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE COMPANIES PROPERTIES (INCLUDING ANY OUTPUT THEREFROM),THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF LEMONAIDE PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE LEMONAIDE PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH LEMONAIDE PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON LEMONAIDE PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO LEMONAIDE PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A LEMONAIDE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A LEMONAIDE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A LEMONAIDE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, LEMONAIDE PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO LEMONAIDE BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $500; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A LEMONAIDE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A LEMONAIDE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A LEMONAIDE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LEMONAIDE AND YOU.
12. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Lemonaide’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Lemonaide by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Lemonaide Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Lemonaide Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written 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; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Lemonaide’s Copyright Agent for notice of claims of copyright infringement is as follows: Lemonaide Copyright Agent, firstname.lastname@example.org, 169 Madison Ave#2500New York, NY 10016
13. MONITORING AND ENFORCEMENT. Lemonaide reserves the right to: (a) remove or refuse to post any of Your Content or Outputs for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content or Outputs that we deem necessary or appropriate in our sole discretion, including if we believe that such content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Lemonaide Properties or the public, or could create liability for Lemonaide; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Lemonaide Properties or if we believe that any of Your Content or Output violates any laws, rules or regulations; and/or (e) terminate or suspend your access to all or part of the Lemonaide Properties for any or no reason, including without limitation, any violation of this Agreement. If Lemonaide becomes aware of any possible violations by you of the Agreement, Lemonaide reserves the right to investigate such violations. If, as a result of the investigation, Lemonaide believes that criminal activity has occurred, Lemonaide reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Lemonaide is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Lemonaide Properties, including Your Content and any Output, in Lemonaide’s possession in connection with your use of Lemonaide Properties, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce the Agreement, (iii) respond to any claims that Your Content or any Output violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Lemonaide, its Registered Users or the public, and all enforcement or other government officials, as Lemonaide in its sole discretion believes to be necessary or appropriate.
14. TERM AND TERMINATION.
14.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Lemonaide Properties, unless terminated earlier in accordance with the Agreement.
14.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Lemonaide Properties or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Lemonaide Properties, unless earlier terminated in accordance with the Agreement.
14.3 Termination of Services by Lemonaide. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Lemonaide is required to do so by law (e.g., where the provision of the Website, the Application or the Services is, or becomes, unlawful), Lemonaide has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Lemonaide’s sole discretion and that Lemonaide shall not be liable to you or any third party for any termination of your Account.
14.4 Termination of Services by You. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case Lemonaide will refund your Service Subscription Fee, if already paid pursuant to Section 8.1 (Payment) or 8.2 (Service Subscription Fees), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If you want to terminate the Services provided by Lemonaide, you may do so by (a) notifying Lemonaide at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Lemonaide’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 8.5 (AUTOMATIC RENEWAL).
14.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services may also include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content; provided, that, any of Your Content that you previously Made Available in any “public” areas of the Service, or any content that is otherwise subject to Lemonaide’s licenses hereunder (e.g., in Section 4) may be retained in perpetuity. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Lemonaide will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14.6 No Subsequent Registration. If your registration(s) with, or ability to access, Lemonaide Properties or any other Lemonaide community, is discontinued by Lemonaide due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Lemonaide Properties or any Lemonaide community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Lemonaide Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Lemonaide reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
15. INTERNATIONAL USERS. Lemonaide Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Lemonaide intends to announce such Services or Content in your country. Lemonaide Properties are controlled and offered by Lemonaide from its facilities in the United States of America. Lemonaide makes no representations that Lemonaide Properties are appropriate or available for use in other locations. Those who access or use Lemonaide Properties from other countries do so at their own volition and are responsible for compliance with local law.
16. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Lemonaide, its parent companies, subsidiaries, affiliates, successors and assigns and all of their respective officers, directors, employees, agents, and representatives (collectively, the “Lemonaide Parties”) and limits the manner in which you can seek relief from the Lemonaide Parties.
16.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Lemonaide. If that occurs, Lemonaide is committed to working with you to reach a reasonable resolution. You and Lemonaide agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Lemonaide therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Lemonaide that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to: email@example.com The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
16.3 Arbitration Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding Section 18.7 herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Lemonaide agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ Streamlined Arbitration Rules and Procedures in effect at the time of the arbitration in ; all other claims shall be subject to JAMS’s Comprehensive Arbitration Rules and Procedures in effect at the time of the arbitration,. JAMS’s rules are available at www.jamsadr.com. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.Unless you and Lemonaide otherwise agree, or the Batch Arbitration process discussed in the subsection titled “Batch Filing” is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.You and Lemonaide agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
16.4 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve all disputes subject to arbitration hereunder including, without limitation, any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award is based, including the calculation of damages awarded (if any). The arbitrator shall follow the applicable law. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
16.5 Waiver of Jury Trial. EXCEPT AS SPECIFIED in THE SUBSECTION TITLED “APPLICABILITY OF ARBITRATION AGREEMENT”, YOU AND THE LEMONAIDE PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Lemonaide Parties are instead electing that all covered claims and disputes shall be resolved exclusively by arbitration under this Arbitration Agreement, except as specified in subsection titled “Applicability of Arbitration Agreement” above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.6 Waiver of Class or Other Non-Individualized Relief. YOU AND LEMONAIDE AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION TITLED “BATCH FILING”, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection titled “Batch Filing” entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Lemonaide agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the New York, New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Lemonaide from participating in a class-wide settlement of claims.
16.7 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Lemonaide need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
16.8 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Lemonaide agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Lemonaide by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or otherwise in close proximity), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the JAMS, and the JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Lemonaide.You and Lemonaide agree to cooperate in good faith with the JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
16.9 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: 169 Madison Ave #2500New York, NY 10016. Such notice shall be deemed given when received by Lemonaide by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
16.10 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Lemonaide as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy under California law, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply to an action governed by California law brought in California courts.
16.11 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Lemonaide makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Lemonaide at the following address: 169 Madison Ave#2500 New York, NY 10016. Unless you reject the change within thirty (30) days of such change become effective by writing to Lemonaide in accordance with the foregoing, your continued use of the Website and/or Services, including the acceptance of products and services offered on the Website following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the Website, any communications you receive, any products sold or distributed through the Website, the Services, or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Lemonaide will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
17. THIRD-PARTY SERVICES.
17.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Lemonaide and not with the App Store. Lemonaide, not the App Store, is solely responsible for Lemonaide Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Lemonaide Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Lemonaide Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
18. GENERAL PROVISIONS.18.1 Electronic Communications. The communications between you and Lemonaide may take place via electronic means, whether you visit Lemonaide Properties or send Lemonaide e-mails, or whether Lemonaide posts notices on Lemonaide Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Lemonaide in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Lemonaide provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
18.2 Release. You hereby release Lemonaide Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Lemonaide Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Lemonaide Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
18.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Lemonaide’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Lemonaide may assign this Agreement, and any or all of its rights and obligations hereunder, without any need for consent.
18.4 Force Majeure. Lemonaide shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Lemonaide Properties, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.6 Exclusive Venue. Subject to the Arbitration Agreement, to the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Lemonaide agree that all such claims and disputes will be litigated exclusively in the state or federal courts located in New York, New York, and each party waives any objection they may have to such courts, including but not limited to objections based on improper venue or inconvenient forum.
18.7 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
18.8 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
18.9 Notice. Where Lemonaide requires that you provide an e-mail address, you are responsible for providing Lemonaide with your most current e-mail address. In the event that the last e-mail address you provided to Lemonaide is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Lemonaide’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Lemonaide at the following address: 169 Madison Ave#2500 New York, NY 10016. Such notice shall be deemed given when received by Lemonaide by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
18.10 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.11 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.18.12 Export Control. You may not use, export, import, or transfer Lemonaide Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Lemonaide Properties, and any other applicable laws. In particular, but without limitation, Lemonaide Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Lemonaide Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Lemonaide Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Lemonaide are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Lemonaide products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.13 Consumer Complaints. In accordance with California Civil Code §1789.3, if you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
18.14 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.