These TERMS AND CONDITIONS OF SERVICE are entered into between you and LogicKit, Inc. ("Us", "We", "LogicKit", or the "Company"). The below Terms and Conditions of Service ("TCS") govern your access and use of any and all LogicKit-owned or LogicKit-operated web sites (including mobile sites), software, applications, mobile applications, interactive features, widgets, and/or other online services (collectively, the "Service"), regardless of how you access or use the Service, whether via personal computers, mobile devices or otherwise, and whether as a guest or a registered user. By accessing or using the Service, you expressly accept and agree to the TCS and enter into a legally binding contract with LogicKit. Do not access or use the Service if you are unwilling or unable to be bound by the TCS.
I. WHAT IS LOGICKIT?
LogicKit is not a licensed commercial cannabis retailer. LogicKit provides a delivery operations platform for licensed retailers. We offer (a) to receive information from cannabis retail customers and medical cannabis patients legally qualified to purchase cannabis under the laws of their applicable State (“Qualified Retail Customers”), (b) to perform certain pre-verification checks in compliance with all applicable laws and regulations, and (c) a virtual environment, such as a website and mobile app, through which patients and lawfully operated dispensaries, medical dispensaries, cooperatives, and delivery services may establish a relationship for the provision of cannabis. We neither provide nor intend to provide cannabis delivery services to cannabis retail customers. It is the sole responsibility of the appropriate licensed commercial cannabis entity (each, a “Third-Party Provider”) using the LogicKit Service (and/or any related applications) to provide delivery and other services in compliance with applicable laws and regulations. While we make reasonable efforts, such as by reviewing state licenses, to ensure that any Third-Party Providers with whom we affiliate operate in compliance with applicable regulations, we make no representations, promises, or warranties with respect to the legality, suitability, or otherwise regarding such Third-Party Providers and have no responsibility or liability with respect to services provided to you by such Third-Party Providers.
II. WHAT ARE THE EFFECTS OF ACCESSING AND USING LOGICKIT’S SERVICE?
You may only access the Service using authorized means. It is your responsibility to check to ensure you access the correct website with the proper login credentials and browser, and download the correct application for your device (if applicable). The Company is not liable if you attempt access to the website with an incompatible browser, if you do not have the proper login credentials, if you do not have a compatible handset or if you have downloaded the wrong version of the application for your handset. The Company reserves the right to terminate this TCS should you be using the Service or an Application with an incompatible or unauthorized browser or device.
A. ACKNOWLEDGEMENT OF AND AGREEMENT TO ABIDY BY ALL APPLICABLE MEDICAL CANNABIS LAWS
By signing up for LogicKit and/or using any LogicKit Service (or related application), you expressly acknowledge that LogicKit is solely for licensed Third-Party Providers and Qualified Retail Customers residing in states who have adopted legislation providing for the recreational and/or medical use of cannabis. You further represent that you are either a Third-Party Provider or a Qualified Retail Customer.
You expressly acknowledge that you are familiar and assume full responsibility for cooperating with all laws regarding the use, possession, cultivation, transportation, and distribution of cannabis. You further acknowledge that any of these activities may be illegal under state law unless all participants are acting completely within the scope of their respective states’ medical marijuana laws, such as California’s Compassionate Use Act. You further acknowledge that you understand that the use, possession, cultivation, transportation, and/or distribution of cannabis is illegal under federal law, and that individuals are subject to arrest and/or prosecution by federal officials. You acknowledge and agree that LogicKit neither provides nor has any obligation to provide any legal protections, such as indemnification, with respect to any civil, criminal, or administrative proceeding, investigation, litigation, or prosecution.
LogicKit has its principal place of business in California. However, LogicKit may be accessible to and provide services to Users outside of California. If you are not a resident and qualified patient within the State of California, you must abide the by and follow the laws of the state in which you are a resident.
B. LOGICKIT MAY NOT BE USED BY OR FOR THE BENEFIT OF MINORS
By using the Service (or any related application), you expressly represent and warrant that you have the right, authority, and capacity to enter into this TCS and that you will abide by the terms and conditions of this TCS. If you reside in a jurisdiction that restricts the use of the Service because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the Service until you are of legally sufficient age and capacity. In all events, the Service is not available to persons under the age of 18. By using the Service, you represent and warrant that you are at least 18 years old.
C. LOGICKIT IS TO BE USED ONLY FOR PERSONAL USE IN COMPLIANCE WITH APPLICABLE LAWS
Your participation in using the Service is for your sole, personal use. You agree that you may not and shall not authorize others to use your user status; that you may not and shall not assign or otherwise transfer your user account to any other person or entity; and that you may not and shall not share with or distribute to any third-party any cannabis or medical cannabis (except to the extent you are the primary caregiver for a qualified patient), where applicable law provides for the same.
By using the Service, you agree that:
• You will only use the Service for lawful purposes; you will not use the Services for sending or storing any unlawful material or for fraudulent purposes.
• You will not use the Service to cause nuisance, annoyance or inconvenience.
• You will not impair the proper operation of the network.
• You will not try to harm the Service in any way whatsoever.
• You will not copy, or distribute the Service or other content without written permission from the Company.
• You will only use the Service for your own use and will not resell it to a third-party.
• You will keep secure and confidential your account password or any identification we provide you which allows access to the Service.
• You will provide us with whatever proof of identity we may reasonably request.
• You will only use an access point or data account (AP) which you are authorized to use.
• You will at all times act in full compliance with the laws of your State pertaining to recreational dispensaries or medical cannabis collectives/cooperatives.
• You will at all times use the Service SOLELY as a Third-Party Provider or Qualified Retail Customer (or, where permitted by applicable law, as a primary caregiver for such a qualified patient) (collectively, the “User Requirements”).
In addition to the foregoing User Requirements, all Third-Party Providers, must:
• Be legally organized and operating in compliance with the laws of your State, including without limitation, any laws related to commercial cannabis activities;
• Obtain, and maintain at all times, the required local business licenses and permits required to be in compliance applicable law, and collect and remit Municipal and State sales tax in full as required by law;
• Make such licenses and permits available for inspection by the Company upon reasonable request;
• Have all medical Qualified Retail Customers agree to be bound by the terms of a Collective or Cooperative Membership Application;
• Obtain every medical Qualified Retail Customer’s physician recommendation and verify its authenticity and the physician’s legal standing to issue such recommendation;
• Acquire, possess, and distribute only lawfully cultivated marijuana;
• Prohibit distribution and sales of cannabis products to non-Qualified Retail Customers;
• Provide adequate security to ensure that Qualified Retail Customers are safe and protect the surrounding community.
A. LICENSES GRANTED BY LOGICKIT TO USERS
We are willing to license, not sell, any applications or software related to the Service (each, an “Application”) to you only upon the condition that you accept all the terms contained in this TCS. By signing up for or by installing, downloading, or using the Service, including without limitation, any Application, you indicate that you understand this TCS and accept all of its terms. You are free to reject the terms of this TCS, but understand and agree that if you do not accept all the terms of this TCS, the Company does not and will not license the to you.
Subject to your compliance with the terms and conditions of this TCS, LogicKit grants you a limited, revocable, non-exclusive, non-transferable license: (i) to view, download and print any Company Content (as defined below) solely for your personal and non-commercial purposes; and (ii) to view any User Content (as defined below) to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this Section.
Subject to your compliance with this TCS, LogicKit further grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with LogicKit or cause any other confusion, and (c) the links and the content on your website do not portray LogicKit or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party or are otherwise objectionable to LogicKit. LogicKit reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third-party.
Subject to your compliance with this TCS, LogicKit further grants you a limited non-exclusive, non-transferable license to download and install a copy of any Application on a single mobile device or computer that you own or control and to run such copy of an Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store, Android Market, Amazon App Store, BlackBerry App World, Samsung Apps Store, Nokia OVI store, and Windows marketplace for Mobile ("App Store Sourced Application"), you will use the App Store Sourced Application as permitted by the "Usage Rules" set forth in the App Store Sourced Application Terms of Service. Company reserves all rights in and to an Application not expressly granted to you under this TCS.
You agree that you will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service, an Application or Collective Content (as defined below) except as expressly permitted in this TCS. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Company or its licensors, except for the licenses and rights expressly granted in this TCS.
LogicKit reserves the right to modify the terms and conditions of this TCS or its policies relating to the Service or an Application at any time, effective upon posting of an updated version of this TCS on the Service or an Application. You are responsible for regularly reviewing this TCS. Continued use of the Service or an Application after any such changes shall constitute your consent to such changes.
B. LICENSES GRANTED BY USER TO LOGICKIT
i. USER CONTENT
a. KEY CONTENT-RELATED TERMS
"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
"Company Content" means Content that Company makes available through the Service or an Application, including any Content licensed from a third-party, but excluding User Content.
"User" means a Qualified Retail Customer or compliant user affiliated with a Third-Party Provider who accesses or uses the Service or an Application.
"User Content" means Content that a User posts, uploads, publishes, submits or transmits to be made available through the Service or an Application.
"Collective Content" means, collectively, Company Content and User Content.
b. LICENSE WITH RESPECT TO USER CONTENT
LogicKit may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Service or an Application, you hereby grant to Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Service or an Application. LogicKit does not claim any ownership rights in any User Content and nothing in this TCS will be deemed to restrict any rights that you may have to use and exploit any User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Service or an Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Service or an Application or you have all rights, licenses, consents and releases that are necessary to grant to Company and to the rights in such User Content, as contemplated under this TCS; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Company’s use of the User Content (or any portion thereof) on, through or by means of the Service or an Application will infringe, misappropriate or violate a third-party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Users agree not to post, email, or otherwise make available Content: (a) that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another's privacy, or is harmful to minors in any way; (b) that advertises any illegal service or the sale of any items which are prohibited or restricted by the laws of your state; (c) attempt to gain unauthorized access to LogicKit computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or an Application.
In the event that any User Content you publish on or by way of any LogicKit property is accused of infringing any third-party’s intellectual property or other rights, you agree to indemnify, defend, and hold LogicKit harmless against such claims, as further discussed below in the Section regarding INDEMNIFICATION.
c. DIGITAL MILLENNIUM COPYRIGHT ACT POLICY
LogicKit respects all intellectual property rights, including copyright. To that end, LogicKit will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act ("DMCA"), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner's) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a notice to email@example.com that includes all of the following:
(i) a legend or subject line that says: "DMCA Copyright Infringement Notice";
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Service on which the material appears);
(iv) your full name, address, telephone number, and e-mail address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
LogicKit will only respond to DMCA Notices that it receives by e-mail at the address firstname.lastname@example.org.
Please not that it is often difficult or not reasonably possible to determine if your copyright has been infringed. LogicKit may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and/or may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Without limiting LogicKit’s other rights, LogicKit may, in appropriate circumstances, terminate a repeat infringer's access to the Service and any other website owned or operated by LogicKit.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
If access on the Service to a work that you submitted to LogicKit is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: "DMCA Counter-Notification";
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Service from which the material was removed or access to it disabled);
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
ii. PERSONAL AND NON-PERSONAL DATA AND INFORMATION
IV. INTELLECTUAL PROPERTY OWNERSHIP
The Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Application and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Application or the Service. This TCS is not a sale and does not convey to you any rights of ownership in or related to the Application or the Service, or any intellectual property rights owned by the Company. The Company name, the Company logo, and the product names associated with the Application and Service are trademarks of the Company or third parties, and no right or license is granted to use them.
V. THIRD-PARTY INTERACTIONS
During use of the Application and Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third-party service providers, advertisers or sponsors showing their goods and/or services through the Service or an Application. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. The Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between you and any such third-party. The Company does not endorse any sites on the Internet that are linked through the Service or an Application, and in no event shall the Company or its licensors be responsible for any content, products, services or other materials on or available from such sites or Third-Party Providers. The Company provides the Application and Service to you pursuant to the terms and conditions of this TCS. You recognize, however, that certain Third-Party Providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and the Company disclaims any and all responsibility or liability arising from such agreements between you and the Third-Party Providers.
The Company may rely on third-party advertising and marketing supplied through the Service or an Application and other mechanisms to subsidize the Service or an Application. By agreeing to these terms and conditions you agree to receive such advertising and marketing. The Company may compile and release information regarding you and your use of the Service or an Application on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third-party you interact with through the Service.
We are under no obligation to enforce the TCS on your behalf against another User. While we encourage you to let us know if you believe another User has violated the TCS, we reserve the right to investigate and take appropriate action at our sole discretion.
VI. TERMINATION OF SERVICE
You agree that LogicKit, in its sole discretion, has the right (but not the obligation) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Service (or any part thereof), immediately and without notice, and remove and discard any Content within the Service, for any reason, including, without limitation, if LogicKit believes that you have acted inconsistently with the letter or spirit of the TCS. Further, you agree that LogicKit shall not be liable to you or any third-party for any termination of your access to the Service. Further, you agree not to attempt to use the Service after said termination.
You may terminate the TCS at any time by closing your account, discontinuing your use of the Service, and providing LogicKit with a notice of termination; provided that, any Third-Party Provider may only terminate this TCR upon proper termination of the definitive agreement for Service between the Company and such Third-Party Provider.
In the event of any termination of the TCS, whether by you or us, the remaining portions of these TCS remain in full force and effect, including our right to use Your Content.
This TCS may not be assigned by you without the prior written approval of the Company but may be assigned without your consent by the Company to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
By entering into this TCS and using the Service or an Application, you agree that you shall defend, indemnify, and hold the Company, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, Users, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (a) your violation or breach of any term of this TCS or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third-party, including providers of delivery services arranged via the Service or an Application, or (c) your use or misuse of the Service or an Application.
IX. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY
THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR AN APPLICATION. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICE OR AN APPLICATION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE SERVICE OR AN APPLICATION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE SERVICE OR AN APPLICATION WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND APPLICATION IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY. THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE SERVICE OR AN APPLICATION. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE APPLICATION AND SERVICE, AND ANY THIRD-PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
A. INTERNET DELAYS
THE COMPANY'S SERVICE AND APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
B. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE COMPANY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. THE COMPANY AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, DEATH OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR AN APPLICATION, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE OR AN APPLICATION, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY THE SERVICE OR AN APPLICATION, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT THE COMPANY’S LIABILITY FOR ANY COMPLAINT SHALL BE LIMITED TO THE AMOUNT, IF ANY, PAID BY YOU TO THE COMPANY IN THE PRIOR SIX (6) MONTH PERIOD.
THE COMPANY MAY INTRODUCE YOU TO THIRD-PARTY DELIVERY SERVICE PROVIDERS FOR THE PURPOSES OF PROVIDING DELIVERY SERVICES. WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD-PARTY DELIVERY SERVICE PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD-PARTY DELIVERY SERVICE PROVIDER. YOU ACKNOWLEDGE THAT THIRD-PARTY DELIVERY SERVICE PROVIDERS PROVIDING DELIVERY SERVICES REQUESTED THROUGH LOGICKIT MAY OFFER DELIVERY SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. THE COMPANY WILL NOT BE A PARTY TO DISPUTES, NEGOTIATIONS OF DISPUTES BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE SERVICE OR AN APPLICATION (WITH ALL ITS IMPLICATIONS) RESTS SOLELY WITH YOU. WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY SUCH THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE SERVICE OR AN APPLICATION, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE SERVICE OR AN APPLICATION. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
THE QUALITY OF THE DELIVERY SERVICES SCHEDULED THROUGH THE USE OF THE SERVICE OR AN APPLICATION IS ENTIRELY THE RESPONSIBILITY OF THE THIRD-PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH DELIVERY SERVICES TO YOU. YOU UNDERSTAND, THEREFORE, THAT BY USING THE APPLICATION AND THE SERVICE, YOU MAY BE EXPOSED TO A DELIVERY SERVICE THAT IS POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE SERVICE OR ANY APPLICATION AT YOUR OWN RISK.
X. DISPUTE RESOLUTION
A. TIME TO PRESENT CLAIMS
You agree that 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 an Application or to this TCS must be filed within one (1) year after such claim or cause of action accrued or shall be forever barred.
B. ALL DISPUTES, OTHER THAN SMALL CLAIMS ACTIONS, SHALL BE SUBMITTED FOR BINDING ARBITRATION
You and Company agree that any dispute, claim or controversy arising out of or relating to this TCS or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service or an Application (collectively, "Disputes") shall be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. All legal proceedings shall be venued in the City of Los Angeles, California.
You acknowledge and agree that you and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding. Further, unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of this TCS.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Company otherwise agree, the arbitration will be conducted in the City of San Francisco, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Company submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Right to Counsel. You have the right to be represented by counsel of your choice. However, you agree that in all events you, not LogicKit, shall be responsible for all of your counsel’s fees.
Changes. Notwithstanding the provisions of the modification-related provisions above, if Company changes this "Dispute Resolution" section after the date you first accepted this TCS (or accepted any subsequent changes to this TCS), you may reject any such change by sending us a notice to email@example.com with "Legal" in the subject line within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of Company’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Company in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted this TCS (or accepted any subsequent changes to this TCS).
XI. FEE AND REFUND POLICY
Any fees that the Company may charge you for the Service or an Application are due immediately and are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate your usage, our decision to terminate your usage, disruption caused to our Application or Service either planned, accidental or intentional, or any reason whatsoever. The Company reserves the right to determine final prevailing pricing. Please note the pricing information published on the website may not reflect the prevailing pricing.
The Company, at its sole discretion, may make promotional offers with different features and different rates to any of our customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. The Company may change the fees for our Service or Application, as we deem necessary for our business. We encourage you to check back at our website periodically if you wish to learn more regarding how we charge for the Service of Application.
The Company may give notice by means of a general notice on the Service or an Application, electronic mail to your email address on record in the Company's account information, or by written communication sent by first class mail or pre-paid post to your address on record in the Company's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to the Company (such notice shall be deemed given when received by the Company) at any time by sending an email to firstname.lastname@example.org; Please specify the reason for the email in the subject line so it can be forwarded to the proper department.
XIII. MISCELLANEOUS PROVISIONS
If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law.
No joint venture, partnership, employment, or agency relationship exists between you, the Company or any Third-Party Provider as a result of this TCS or use of the Service or an Application.
The failure of the Company to enforce any right or provision in this TCS shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Company in writing.
This TCS constitutes the entire agreement and understanding between you and LogicKit and governs your use of the Service and Application, superseding any prior agreements or understandings between you and LogicKit.
The TCS and the relationship between you and LogicKit shall be governed by the laws of the State of California without regard to its conflict of law provisions.
The failure of LogicKit to exercise or enforce any right or provision of the TCS shall not constitute a waiver of such right or provision.
For a Third-Party Provider or any employee or contractor thereof, in the event of a conflict between this TCS and any definitive agreement for the Service or an Application between a Third-Party Provider and the Company, the provision that is most favorable to the Company, as determined in the Company’s sole discretion, shall control.
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced Application, 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.