Effective Date: November 23, 2015
Welcome! These Terms govern the website www.lolatechsystems.com (including both mobile and online versions) (the “Site”) and the Lola mobile app (the “App”), including your use of interactive features, widgets, plug-ins, applications, content, downloads and/or other online services that we own and control and that post a link to these Terms (collectively, the Site and the App are referred to as the “Service”), which are made available by LOLA TechSystems, Inc., d/b/a Lola (“Lola”, “we” “our” or “us”).
In some instances, both these Terms and a separate terms of service setting forth additional or different terms and/or conditions may apply to your use of the Service or to a service or product offered via the Service (in each instance, and collectively, “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
Table of Contents
A. Content. The Service contains a variety of: (i) materials and other items relating to Lola, and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Lola (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
B. Ownership. The Service (including past, present, and future versions) and the Content are owned or controlled by Lola, our licensors and/or certain other third parties. All right, title, and interest in and to the Content available via the Service is the property of Lola or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Lola owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
C. Limited License. Subject to your strict compliance with these Terms and any Additional Terms, Lola grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Lola’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
D. Rights of Others. When using the Service, you must respect the intellectual property and other rights of Lola and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Section 12 below.
A. Accounts. In order to participate in the online learning activities, games and features offered on our Service, the Service requires an adult user to first register for an account (“Account”) using the Service’s registration form. After an adult user completes the initial registration process and is confirmed as a member of the Service, if such user is a Parent of the child(ren) that will be the primary users of the Account, then the Parent will be prompted to authorize access to the Service for their children. Further, a Parent of the child(ren) that are the primary users of the Account must always be the administrator of the Account. We may provide different account management tools that will permit a Parent to specify different level of user access to certain information in their Account, the functionality and features of which are subject to change from time-to-time. Your decision to provide this information is purely voluntarily and optional; however, if you elect not to provide it, then you may not be able participate on the Service. When you register for an Account, you will select (or we will issue you) your own password at the time of registration and you agree that:
(i) You will not use a username (or e-mail address) that is already being used by someone else, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or email address for any other reason, in our sole discretion.
(ii) You will provide accurate, current, and complete registration information about yourself and your Child in connection with the registration process and, as permitted, will maintain and update it continuously and promptly to keep it accurate, current, and complete.
(iii) You are solely responsible for all activities that occur under your Account, password, and username – whether or not you authorized the activity.
(iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, username, or password. You will immediately notify us of any unauthorized use of your Account, password, or username, or any other breach of security. You will not sell, transfer, or assign your Account or any Account rights.
We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms or any Additional Terms, then we may suspend or terminate your Account pursuant to Section 4(C) or deny you access to all or part of the Service.
B. Profiles. Your account may allow you to post a profile (a “Profile Page”). We may offer you the ability to set preferences relating to your profile or Service activities, but settings may not become effective immediately or be error free, and options may change from time-to-time. We assume no responsibility or liability for users’ Profile Page material. Profile Pages may only be set up by an authorized representative of the individual that is the subject of the Profile Page. We do not review Profile Pages to determine if they were created by an appropriate party, and we are not responsible for any unauthorized Profile Pages that may appear on the Service. If there is any dispute as to whether a Profile Page has been created or is being maintained by an authorized representative of the individual who is the subject of that Profile Page, then we shall have the sole right, but are not obligated, to resolve such dispute as we determine is appropriate in our sole discretion. Such resolution may include, without limitation, deleting or disabling access to Profile Pages, or any portion thereof, at any time without notice.
A. User-Generated Content.
(i) General. Lola may now or in the future offer users of the Service the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User-Generated Content”), and subject to the rights and license you grant herein, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content.
(iii) License to Lola of Your User-Generated Content. Except as otherwise described in any Additional Terms, which will govern the submission of your User-Generated Content to the extent specified therein, you grant Lola, the non-exclusive, worldwide, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sublicense, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, all or any portion of your User-Generated Content (and derivative works thereof), for the limited purpose of operating, developing, providing, and improving the Service, researching and developing new products and services, and making User-Generated Content available outside of the Service. In order to further effect the rights and license that you grant to Lola to your User-Generated Content, you also hereby grant Lola, the right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation to you. Except as prohibited by law, you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 3(A)(iii).
(iv) Lola’s Exclusive Right to Manage All User-Generated Content. Lola may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Lola may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party; provided, however, that we reserve the right to treat User-Generated Content on the Service, or on certain portions of the Service, as content stored at the direction of users for which we will not exercise editorial control except to block or remove content that comes to Lola’s attention and is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or that violate any right of any third party or are otherwise objectionable to Lola. Such User-Generated Content submitted by you or others need not, however, be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Service.
(v) Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the state in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit; provided, however, that with respect to children who submit User-Generated Content, the Parent authorizing such child(ren) to access the Service accept full responsibility for such submissions and all consents necessary to conform with these Terms and/or any Additional Terms. As to that User-Generated Content, such responsible submitting party represents and warrants that such party: (a) is the sole author and owner of the intellectual property and other rights to the UserGenerated Content, or has a lawful right to submit the User-Generated Content and grant Lola the rights to it that are granting by these Terms and/or any Additional Terms, all without any Lola obligation to obtain consent of any third party and without creating any obligation or liability of Lola; (b) the User-Generated Content is accurate; (d) the User-Generated Content does not and, as to Lola’s permitted uses and exploitation set forth in these Terms and/or any Additional Terms, will not infringe any intellectual property or other right of any third party; and (e) the User-Generated Content will not violate These Terms or any Additional Terms, or cause injury or harm to any person.
(vii) User-Generated Content Rules. Your participation in the activities on the Service is subject to all of the Terms, including these rules: All of your User-Generated Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms. Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears or is referred to in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to Lola (for example, if someone has taken a picture of you and your friend, and you submit that photo to Lola as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.). If you choose to submit photos to the Service, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their express permission to submit it. All of your Service activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Service. Cursing, harassing, bullying, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit. If you submit User-Generated Content that Lola reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Service.
(vi) Enforcement. Lola has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Lola’s cost and expense).
A. Service Use Restrictions. The Service is designed to foster learning and to be a positive and fun environment for children to build skills through interactions with their Parents and those individuals authorized by their Parents. Accordingly, you agree that you will not: (a) use the Service for any commercial or political purpose (including for purposes of advertising, soliciting funds, collecting product prices, and selling products); (b) use any meta tags or any other “hidden text” utilizing any Lola trademarks or trade names; (c) engage in any activities through or in connection with the Service that seek to attempt to or do harm to us, the Service or any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal, or that violate any right of any third party or are otherwise objectionable to Lola; (d) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (e) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Lola, or other users of the Service; (f) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User-Generated Content; (g) in a manner we, in our sole discretion, deem inappropriate for the venue; or (h) otherwise violate these Terms or any Additional Terms.
(i) Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
(ii) Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to firstname.lastname@example.org. For alleged infringements of copyright, see Section 13 below.
B. Content Use Restrictions. You also agree that, in using the Content (other than your User-Generated Content): (a) you will not monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (b) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (c) you will keep intact all trademark, copyright, and other intellectual property notices contained in such Content; (d) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (e) you will not make any modifications to such Content; (f) you will not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Lola or, in the case of Content from a licensor, the owner of the Content; or (g) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C. Availability of Service and Content. Lola may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them) for any reason, in Lola’s sole discretion, and without advance notice or liability.
D. Reservation of All Rights Not Granted as to Content and Service. These Terms, and any Additional Terms, include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Lola and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
We grant 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 trademark graphics that are owned or licensed to Lola, (b) the links and the content on your website do not suggest any affiliation with Lola or cause any other confusion, and (c) the links and the content on your website do not portray Lola or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is inappropriate for children or that is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or that violate any right of any third party or are otherwise objectionable to Lola. Lola 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.
A. Linked Sites. The Service may contain links, as part of third party content on the Service or otherwise, to or from third-party websites (“Linked Websites”), including websites operated by sponsors, licensors, licensees, and certain other third parties who may have business relationships with Lola. Lola may have no control over the content, operations, policies, terms, or other elements of Linked Websites, and Lola does not assume any obligation to review any Linked Websites. Lola does not necessarily endorse, approve, or sponsor any Linked Websites, or any third party content, advertising, information, materials, products, services, or other items. Lola disclaims all liability in connection therewith. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use, and rule issued by the operator of the Linked Websites. Lola disclaims all liability in connection therewith.
B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Websites) are solely between you and the third party (including issues related to the content of Linked Websites, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Lola disclaims all liability in connection with therewith.
A. Wireless Features. The Service may offer certain features and services that are available to you via your wireless Internet Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Internet Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Internet Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify Lola of any changes to your wireless number (including phone number) and update your Account on the Service to reflect the changes.
C. Software and Other Items Available for Download. Any items that we make available for download or use from the Service and/or our servers (the “Downloadable Items”) are the copyrighted work of Lola, or its licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS. Note that if you install certain applications that may be available via the Service, you consent to the download of software to your computer and accept these Terms and any Additional Terms related to such application.
Certain portions of this Section 8 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Lola agree that we intend that this Section 8 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 8 can only be amended by mutual agreement.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Lola’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 8(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 8(A). Your notice to us must be sent to: Lola, 718 Kingman Avenue, Los Angeles, CA 90401 (Attn: Business and Legal Affairs). For a period of sixty (60) days from the date of receipt of notice from the other party, Lola and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Lola to resolve the Dispute or Excluded Dispute on terms with respect to which you and Lola, in each of our sole discretion, are not comfortable.
B. Forums for Alternative Dispute Resolution.
(i) Arbitration. If we cannot resolve a Dispute as set forth in Section 8(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 8(B). If we cannot resolve an Excluded Dispute as set forth in Section 8(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Lola consent, in a writing signed by you and an Officer or legal representative of Lola, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 8(B).
Upon expiration of the applicable sixty-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Lola elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Lola do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 8(B)(i), then this paragraph and the remainder of this Section 8(B) will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Lola consent to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for a the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service. You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA: 800.778.7879 JAMS: 949.224.1810
(ii) Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of these Terms (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Lola to pay a greater portion or all of such fees and costs in order for this Section 8 to be enforceable, then Lola will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 8 of the Federal Arbitration Act.
C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 8(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief. The foregoing provisions of this Section 8 will not apply to any legal action taken by Lola to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or Lola’s intellectual property rights (including such Lola may claim that may be in dispute), Lola’s operations, and/or Lola’s products or services.
E. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 8(G).
F. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 8(B)(i) holds that this restriction is unconscionable or unenforceable, then our agreement in Section 8(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 8(G).
G. Federal and State Courts in Los Angeles County. Except to the extent that arbitration is required in Section 8(B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and Lola consent to the exclusive personal jurisdiction and venue of such courts for such matters.
H. Governing Law. THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES.
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK.
THE SERVICE IS PROVIDED ON AN “AS IS” “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Lola and its parents, affiliates, subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Lola Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Service (including the Content and the User-Generated Content);
(b) the functions, features, or any other elements on, or made accessible through, the Service;
(c) that the Service is educational, beneficial for child development or that your child will learn anything from using the Service;
(d) any products, services, or instructions offered or referenced at or linked through the Service;
(e) security associated with the transmission of your User-Generated Content transmitted to Lola or via the Service;
(f) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your internet device);
(g) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;
(h) whether any defects to the Service will be repaired; and
(i) whether your use of the Service is lawful in any particular jurisdiction.
EXCEPTING ONLY AS MAY BE SPECIFICALLY SET FORTH IN ANY ADDITIONAL TERMS, THE LOLA PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
UNDER NO CIRCUMSTANCES WILL ANY LOLA PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
(a) the Service (including the Content and the User-Generated Content);
(b) your use of or inability to use the Service, or the performance of the Service;
(c) the failure of a child user to learn or otherwise benefit educationally from their use of the Service;
(d) any action taken in connection with an investigation by Lola Parties or law enforcement authorities regarding your access to or use of the Service;
(e) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(f) any errors or omissions in the Service’s technical operation; or
(g) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the Lola Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LOLA PARTIES’ TOTAL LIABILITY TO YOU IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS EXCEED AN AGGREGATE OF $10.00 FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION.
If you claim that you have incurred any loss, damages, or injuries in connection with your use of the Service, then the losses, damages, and injuries will not be irreparable or sufficient to entitle you to an injunction or to other equitable relief of any kind. This means that, in connection with your potential claim, you agree that you will not seek, and that you will not be permitted to obtain, any court or other action that may interfere with or prevent the development or exploitation of the Service, Content, User-Generated Content, product, service, or other intellectual property owned, licensed, or controlled by Lola (including your licensed User-Generated Content) or a licensor of Lola.
A. DMCA Notice. Lola 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 written notice 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.
Lola will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses below:
By Mail: Lola Tech Systems, Inc. 2345 Outpost Drive, Los Angeles, CA 90068 (Attn: DMCA Agent)
By E-Mail: email@example.com
It is often difficult to determine if your copyright has been infringed. Lola may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Lola 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.
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.
Without limiting Lola’s other rights, Lola may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by Lola.
B. Counter-Notification. If access on the Service to a work that you submitted to Lola 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 of 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.
You agree to defend, indemnify, and hold Lola Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Lola Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) User-Generated Content submitted by you; (ii) use of the Service by you and your activities in connection with the Service; (iii) breach or anticipatory breach of these Terms or any Additional Terms by you; (iv) violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with use of the Service by you or users of your Account or activities in connection with the Service by you; (v) information or material transmitted through your Internet Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; or (vii) Lola Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Lola Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Lola Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Lola Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Lola Party.
B. Lola’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grants Lola a right of consent or approval, or permits Lola to exercise a right in its “sole discretion”, Lola may exercise that right, in its sole and absolute discretion. No Lola consent or approval may be deemed to have been granted by Lola without being in writing and signed by an officer of Lola.
C. Operation of Service; International Issues. Lola controls and operates the Service from its headquarters in Los, Angeles, California, in the United States, and Lola makes no representation that the Site is appropriate or available for use outside of the United States. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
D. Export Controls. Software related to or made available by the Service may be subject to export controls of the U.S.A. No software from the Service may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
E. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.
F. Communications. When you communicate with us electronically, such as via a Service communication tool, you consent to receive communications from us electronically. Please note that we are not obligated to respond to all inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
G. Investigations; Cooperation with Law Enforcement; Termination; Survival. Lola reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (iv) prosecute violators of these Terms and any Additional Terms, and (v) discontinue the Service, in whole or in part, or suspend or terminate your access to it, in whole or in part, including any Accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Lola under these Terms or any Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from Lola, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Lola in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, and no class action.
H. Assignment. Lola may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Lola.
I. No Waiver. Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or Lola in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
If you are accessing or using our App through a Device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”):
(i) To the extent that you are accessing the App through an Apple Device, you acknowledge that these Terms are entered into between you and Lola and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below.
(ii) The license granted to you in Section 1 of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the App.
(iii) You acknowledge that Lola, and not Apple, is responsible for providing the App and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the App.
(v) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Lola, Lola and not Apple is responsible for addressing any claims you may have relating to the App, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the App, or your possession and use of the App, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
(ix) When using the App, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the App.
(x) 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.
If you are accessing or using the App through a Device manufactured and/or sold by Microsoft (“Microsoft”, with such a device herein referenced as a “Microsoft Device”):
(i) Notwithstanding anything to the contrary in these Terms, you may download, stream, install and use one copy of the App on up to the number of Microsoft Devices that are associated with your Microsoft account you personally own or control and which are affiliated with the Windows Live ID associated with Your Windows Phone Marketplace account. You may not install or use a copy of the App on a Microsoft Device you do not own or control.
(ii) You acknowledge and agree that neither Microsoft, nor the manufacturer of your Microsoft Device(s), shall have any responsibility to provide to you any known applicable maintenance or support services in connection with your use of the App.
(iii) SUBJECT TO AND WITHOUT LIMITING THE GENERALITY OF SECTION 10, MICROSOFT’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE INITIAL PURCHASE PRICE PAID BY YOU FOR THE APP.