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PLEASE READ THE TERMS OF USE (“TERMS OF USE”) CAREFULLY BEFORE USING THE DOWNLOADABLE MOBILE APPLICATION (AND ANY RELATED SERVICES) OFFERED BY LUCERO SPEAKS, INC. (“Lucero Speaks”, “Company”, “we”, “us”, or “our”) THAT PROVIDED THE LINK TO (OR INCLUDED) THESE TERMS OF USE (“Application” Or “App”). These Terms of Use apply to your use of the App. In these Terms of Use, “you” or “your” refers to you as an App User (as defined below) of the App.
NOTE: THESE TERMS OF USE CONTAIN A PROVISION THAT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH LUCERO SPEAKS ON AN INDIVIDUAL BASIS AND THROUGH FINAL AND BINDING ARBITRATION, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
BY USING THE APPLICATION, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE AND AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE, WHICH IS A CONTRACT BETWEEN YOU AND LUCERO SPEAKS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THESE TERMS OF USE, YOU MAY NOT USE THE APPLICATION.
Your use of the App also may be subject to additional terms, conditions, policies, rules or guidelines applicable to the App or certain features of the App that we post or provide to you, all of which are hereby expressly incorporated into these Terms of Use.
1. Modifications to Terms of Use
Our App may change from time to time, which means the terms of these Terms of Use may change too. If we do update these Terms of Use, we will notify App Users at least thirty (30) days before the update comes into effect by posting the new version on our website and updating its “Effective Date” and if you have an account, directly communicating any changes that materially increase your obligations to us or materially reduce Lucero Speaks’ obligations under these Terms of Use to you (e.g., via the contact information associated with a Caregiver, Other Adult Explorer, Teen or Tween account, or by displaying an alert upon login to the App).
2. App User Accounts
The Lucero Speaks’ App is designed to help teens and tweens find sanctuary and experience a journey of self-discovery (we call this an “Exploration”) and to permit a Teen, Tween or Caregiver of a Tween to share progress of that Teen or Tween with any Explorer within that youth’s online group (“Crew”). We currently offer accounts to the following types of individuals that use the App (each an “App User”):
A Tween, Teen, or Caregiver Explorer accounts will be linked to a Crew through invitation by a Crew Captain (and acceptance by the Tween, Teen, or Caregiver). A Teen, Tween, or Caregiver Explorer may or may not be linked to a Crew, as elected by that Teen, Tween, or Caregiver Explorer. With respect to Tweens only, any parent or other legal guardian of a Tween, whether or not that person is an Explorer, must approve a Tween creating an account, using the App, and creating or joining a Crew. A Tween’s parents or legal guardians can request access to the information in that Tween’s account.
3. Using the App
App Users must use the App subject to and in compliance with these Terms of Use and all applicable local, provincial, state, national and international laws, rules and regulations. The App is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the App from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The App, including all content, features and functionality thereof, (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. Subject to these Terms of Use, Lucero Speaks grants you permission to access and use the App, solely for your own personal, non-commercial use, and not for the use or benefit of any third party. We reserve all rights not expressly granted to you in the App and the Lucero Speaks Content. We may also impose limits on certain services and/or features or restrict your access to parts of or all the App, in our sole discretion and without notice. Except as expressly provided in these Terms of Use, no part of the App and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
You are solely responsible for any activity that occurs through your account, for maintaining the confidentiality of your account information and password, and for restricting access to your account and your computer. If your account has been compromised or if you suspect unauthorized use of your account, notify us immediately at the contact information provided at the bottom of these Terms of Use. Without limiting the foregoing, Caregiver App Users who create or are linked to accounts for minor children are responsible for the acts and activities of those children in connection with the use of the App, and that these Terms of Use and Lucero Speaks’ Privacy Policy will apply to those minor children’s use of the App. All App Users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by, their parent or guardian to use the App. If you are a minor, you must have your parent or guardian read and agree to these Terms of Use prior to you using the App.
4. User Representations
By using the App, you represent and warrant that: (1) you have the legal capacity and you agree to comply with these Terms of Use; (2) you are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the App; (3) you will not access the App through automated or non-human means, whether through a bot, script, or otherwise; (4) you will not use the App for any illegal or unauthorized purpose; and (5) your use of the App will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the App (or any portion thereof).
5. Prohibited Uses
By using the App, you agree that you will not conduct, participate or otherwise engage in or conspire to engage in fraudulent, abusive, or otherwise illegal activity and that any such activity will be grounds for termination of your right to access or use the App. Hacking or harming the App is prohibited. Specifically, you agree that you will not
(i) post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other App User, including by attempting to trick, defraud, or mislead us and other App Users;
(ii) use the App to circumvent, disable or other interfere with computer or network security features of the App (including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the App and/or the Content contained therein), transfer or store illegal material (including threatening or obscene material), or engage in any kind of illegal activity;
(iii) disparage, tarnish, or otherwise harm, in our opinion, us and/or the App;
(iv) use any information obtained from the App in order to harass, abuse, or harm another person;
(v) make improper use of our support services or submit false reports of abuse or misconduct.
(vi) use any automated or non-automated system, including but not limited to “spiders,” “robots,” “offline readers,” “scrapers,” etc., to copy, distribute, disclose, or access the App, interfere with the proper working of the App or place an unreasonable load on the App’ infrastructure;
(vii) run or activate any form of auto-responder or “spam” on the App;
(viii) upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”);
(ix) attempt to interfere with or decipher any transmissions to or from the servers running the App;
(x) upload or transmit (or attempt to upload or to transmit) any malicious software agents through the App, including viruses, Trojan horses, or other material such as excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the App or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the App;
(xi) use the App for any commercial solicitation purposes;
(xii) interfere with the proper working of the App;
(xiii) bypass the measures used by Lucero Speaks to prevent or restrict access to the App;
(xiv) access or use the App for any purpose other than that for which we make the App available;
(xv) systematically retrieve data or other content from the App to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us;
(xvi) delete the copyright or other proprietary rights notice from any Content;
(xvii) attempt to impersonate another user or person or use the username of another user;
(xviii) harass, intimidate, or threaten any of our employees or agents engaged in providing any portion of the App to you;
(xix) copy or adapt the App’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code; or
(xx) make any unauthorized use of the App, including collecting usernames and/or email addresses of App Users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
6. Acceptable Use and Conduct
You agree to adhere to the following rules when using the App:
(i) You will not use the App to violate a person’s right to privacy or otherwise collect, use, or disclose data, including personal information, about other users without their consent or for unlawful purposes.
(ii) You will not bully, intimidate, or harass, any App User or use the App in any manner that is threatening, abusive, violent, or harmful to any person or entity.
(iii) You will not use the App in any way to upload, post, transmit, email or otherwise distribute content that: is hate speech, discriminating, defamatory, threatening, pornographic or otherwise obscene; incites violence; contains nudity or graphic or gratuitous violence; or is otherwise objectionable as reasonably determined by us.
(iv) You will not impersonate a Lucero Speaks employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity.
(v) You will not use the App in a manner that is harmful to minors. Without limiting the foregoing, you will not transmit or post any content anywhere on the App, including any App User Content (as defined below), that violates child welfare laws, pornography laws, or sexual exploitation laws.
You acknowledge and agree that your violation of any of these conditions, at Lucero Speaks’ sole discretion, may result in the immediate suspension or termination of your account and your access to the App.
7. Fees, payment, and renewing subscriptions
a. Fees and payment
If there is a fee for all or some of the App, including a subscription to certain features of App, we may, in our sole discretion, change the fee to be charged for your next subscription period, provided we first notify you by email in accordance with applicable law. Where the fee is for something other than a subscription, we will notify you in advance of any rate changes.
All fees are payable in accordance with the payment terms in effect when payment is due. We may offer some promotional trials or time-limited discounts or offers for certain App features or App Users from time to time. If you sign up or register through a trial, promotional, or discount event, your rights of use will be subject to and limited by the terms of the trial, promotion, or discount offer and will terminate or renew in accordance with the terms of the offer or any additional terms communicated related to the trial, promotion, or discount offer. If you do not pay fees applicable to the App you may not use or access those paid App features. Unless otherwise expressly stated in the policies applicable to the App, any fees paid for App are non-refundable, to the fullest extent permitted by law.
Where the App has a fee, you must use either a credit card or other acceptable or approved payment method (such as through a third-party app store, when you purchase the App through our app) to activate and maintain that App. You will be responsible for the fees and all applicable taxes for any App ordered. If we do not receive payment from your credit card or payment method, you agree to pay all amounts due hereunder upon demand and will be solely responsible for any dispute with your payment provider. Should your credit card or payment method be denied, we reserve the right to recharge the credit card or payment method for any outstanding amounts. You will not be charged more than the amount of the fees for the App(s) you have purchased.
Note, Lucero Speaks does NOT directly store credit card information – all credit card information and transactions are stored by third-party payment providers that process payments on our behalf. You agree in the event one of our payment processors experiences a data breach affecting your information through no fault of Lucero Speaks, Lucero Speaks will in no way be responsible or liable to you for any such breach.
b. Subscription and renewal
By purchasing a subscription, you agree that we may renew your subscription automatically for the same subscription term on the day after your previous subscription ends, if and when applicable. When applicable, your subscription will automatically renew unless you cancel your account prior to the renewal date through the procedures described in the “Subscription Cancellation” section below. We will charge your credit card (or the other method of payment initially used by you) each year, month or other applicable period (depending on the payment term that you selected) for the then-current applicable price. You authorize us to charge you through the credit card or other acceptable or approved payment method that you used when subscribing to the App.
c. Subscription cancellation
You may cancel your subscription and avoid future billing online via your Teen, Caregiver or Other Adult Explorer account, by contacting our customer support team at the contact information below, or, if you purchased your subscription through a third-party app store, through the respective app store settings. If you do so, we will endeavor to close your account as soon as possible; regardless, we will not charge you for another subscription period if you cancel your subscription prior to its renewal date.
For all accounts, you will continue to have access to your account for the period of time that has already been prepaid. After you cancel your account, we will not charge you any subscription fees after the expiration of your then-current subscription period. In any event, you will be able to continue to use the App throughout the remainder of the subscription period for which you have already paid. You will also be able to continue to use the parts of the App that do not require a paid subscription.
8. Apple and Android Devices
The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the App: (1) the license granted to you for our mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms of Use or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application; (4) 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; (5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (6) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms of Use, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms of Use against you as a third-party beneficiary thereof.
9. Lucero Speaks Content and Intellectual Property Rights
The App and its entire contents, features, and functionality, including, but not limited to, all information, software, code, text, displays, graphics, photographs, video, audio, design, presentation, selection, and arrangement (the “Lucero Speaks Content”) are owned by Lucero Speaks and its licensors, and are protected by United States and foreign intellectual property laws, including copyright, trademark and other intellectual property or proprietary rights laws. The App and all content, features and functionality are intended solely for the personal, non-commercial use by our App Users and may only be used in accordance with these Terms of Use. You agree that your use of the App does not give you ownership of any intellectual property or other proprietary rights in the App or the Lucero Speaks Content and as between you and Lucero Speaks, all such rights in the App and Lucero Speaks Content, which does not include App User Content (as defined below), are owned by and the property of Lucero Speaks or its licensors.
You agree that you will not and will not allow a third party (whether or not for your benefit) to: (i) run, license, rent, lease, loan, distribute or sell access to the App or Lucero Speaks Content; (ii) build or support (and/or assist a third party in building or supporting) products or services that compete with the App or use similar ideas, features, functions, interface or graphics of the App; (iii) use, store, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, create derivative works from, display, license, sell or otherwise exploit the App or Lucero Speaks Content for any purposes other than as expressly authorized by these Terms of Use; (iv) decompile, reverse engineer, disassemble, or otherwise attempt to obtain the source code of the App or Lucero Speaks Content; (vi) remove, obscure or alter any copyright, logo, trademark, or other legal notices or otherwise use the App in a manner that creates the impression the App or Lucero Speaks Content belongs to any entity other than Lucero Speaks.
We will not, under any circumstances, be liable in any way for any Lucero Speaks Content, including, but not limited to, any errors or omissions in any Lucero Speaks Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Lucero Speaks Content posted, emailed, accessed, transmitted, or otherwise made available via the App.
While not currently available in the App, in the future while using the App, you and other App Users may provide content to us, excluding App User personally identifying information, which may be used by Lucero Speaks to help support and provide the App (“App User Content”). For Lucero Speaks to provide the App, you hereby grant to Lucero Speaks a limited, non-exclusive, sublicensable, worldwide, royalty-free, and transferable right and license to, whether the App User Content is in storage or in transit: (i) use, host, copy, store, distribute, publicly perform and display, publish (in whole or in part), modify, and create derivative works from (such as changes we make so your App User Content functions appropriately with the App) such App User Content; (ii) create, use, and disclose metrics and analytics regarding App User Content; and (iii) process App User Content to improve the App, develop products, engage in research, provide personally relevant services, or other lawful purposes. By providing App User Content, you represent and warrant that (i) you own or have the necessary rights to provide the App User Content; (ii) you have the right to grant the license hereof to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns to the App User Content; (iii) you waive your moral rights in the App User Content, and (iv) all App User Content complies with applicable laws and regulations.
You understand all information transmitted through the App is the sole responsibility of the App User from which such content originated and Lucero Speaks is not and cannot be held liable for errors or omissions in any App User Content. Lucero Speaks cannot guarantee the authenticity of data which App Users may provide about themselves. You acknowledge all Lucero Speaks Content accessed while using the App is at your own risk and you are solely responsible for any damage or loss to any party resulting therefrom. App Users acknowledge that we reserve the right but is not obligated to pre-screen, filter, edit, remove, refuse to accept, post, display, or transmit any App User Content through or on the App in whole or in part any time for any or no reason without notice and without liability of any kind.
10. Feedback
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the App (“Feedback“) provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Feedback for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Feedback, and you hereby warrant that any such Feedback are original with you or that you have the right to submit such Feedback. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Feedback.
11. Wellness Treatment Disclaimer
This App is intended to be a wellness exploration and journey, and not intended to serve as or replace treatment. If you have any concerns or questions about your health (if you are a Teen or Tween), or if you are a Caregiver, your child’s health including mental health, you should always consult with a health-care professional. Do not disregard, avoid, or delay obtaining medical or mental health-related advice from your health-care professional because of this App.
12. Privacy
We care about data privacy and security. Please review our Privacy Policy. By using the App, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use. Please be advised the App is hosted in the United States. If you access the App from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the App, you are transferring your data to the United States, and you agree to have your data transferred to and processed in the United States.
13. App Management
We reserve the right, but not the obligation, to: (1) monitor the App for violations of these Terms of Use; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your App User Content or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the App or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the App in a manner designed to protect our rights and property and to facilitate the proper functioning of the App.
14. Advertising
We may present contextual references to, or advertisements for, our paid membership options to App Users while they are using the App, including Teen or Tween Explorers when playing the Lucero Speaks game.
These advertisements are first-party and contextual: that is, advertisements are only for Lucero Speaks’ App, and the same advertisement is delivered to similarly situated Caregiverss, or to Teen or Tween Explorers based on their progress in the Lucero Speaks Exploration or on similar factors that apply to all Teen or Tween or Caregiver Explorers. Lucero Speaks does not use personal information collected from Caregiver, Teen or Tween Explorers to individually target this advertising, and does not allow third-party targeted advertising providers to place cookies on or collect information from the Lucero Speaks game or other areas of the App directed to Teen or Tween Explorers.
15. Third Party Apps
The App may contain (or you may be sent via the App) links to other websites (“Third-Party Websites“) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content“). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the App or any Third-Party Content posted on, available through, or installed from the App, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the App and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms of Use no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the App or relating to any applications you use or install from the App. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
16. Governing law
These Terms of Use shall be governed by and construed in accordance with the laws of the state of Texas without regard to its conflict of laws principles.
17. Dispute Resolution; Informal Negotiations; Binding Arbitration; Class Action Waiver
This provision allows us to promptly and efficiently resolve any dispute that may arise between us.
a. Informal Negotiations
To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms of Use (each “Dispute” and collectively, the “Disputes”) brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least sixty days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
b. Binding Arbitration
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved through binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. WITH ARBITRATION, THERE IS NO JUDGE OR JURY; THE ARBITRATION PROCEEDINGS AND ARBITRATION ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES; AND JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA“) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules“), both of which are available at the AAA website: www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Austin, Texas. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Travis County, Texas, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) is excluded from these Terms of Use.
If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
c. Small Claims Matters Are Excluded.
As an exception to binding arbitration, you and Lucero Speaks both retain the right to pursue, in a small claims court, any Dispute that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. We will not demand arbitration in connection with any individual Dispute that you properly file and pursue in a small claims court, so long as the Dispute is pending only in that court.
d. Restrictions
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
e. Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court. In addition, notwithstanding anything to the contrary, if any part of these Terms of Use to arbitrate is deemed invalid or inapplicable, the remainder of the agreement to arbitrate shall still be considered valid and enforceable.
f. Timing of Claim.
To help resolve any Disputes promptly, you and Lucero Speaks agree that any notice of intent to initiate an informal dispute resolution conference, or any small claims or injunctive relief complaint permitted under these Terms of Use must be filed, within one year after the events giving rise to the Dispute arise; otherwise, the Dispute is waived.
g. Opt-out.
You can choose to reject this arbitration agreement by sending us a written opt-out notice (Opt-Out Notice) within 30 days following the date you first agree to these Terms of Use, by email at support@lucerospeaks.com or by mail ATTN: Legal at Lucero Speaks, 501 Congress Avenue,
Suite 150, Austin, TX 7870. If mailed, the Opt-Out Notice must be postmarked no later than 30 days following the date you first agree to these Terms of Use. To be effective, the Opt-Out Notice must contain your name, address, and signature. If you opt-out of the arbitration agreement, all other parts of the Agreement will continue to apply to you. Opting out of this arbitration agreement has no effect on any previous, other, or future arbitration agreements that you may enter with Lucero Speaks.
h. Survival of Arbitration Agreement.
You and Lucero Speaks agree that the agreement to arbitrate shall survive termination of these Terms of Use, and the termination of any membership or account you may have Lucero Speaks.
Nothing herein shall be construed as consent by Lucero Speaks to the jurisdiction of any court regarding claims unrelated to the use of the App or these Terms of Use.
18. Corrections; Modifications and Interruptions
There may be information on the App that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the App at any time, without prior notice.
We reserve the right to change, modify, or remove the contents of the App at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our App. We also reserve the right to modify or discontinue all or part of the App without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the App.
We cannot guarantee the App will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the App, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the App at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the App during any downtime or discontinuance of the App. Nothing in these Terms of Use will be construed to obligate us to maintain and support the App or to supply any corrections, updates, or releases in connection therewith.
19. Indemnity
You agree to defend, indemnify and hold harmless Lucero Speaks and its subsidiaries, agents, licensors and affiliates, and their employees, contractors, agents, officers and directors from claims, damages, obligations, losses, cost or debt and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Lucero Speaks Content and/or the App, including any data or content transmitted by you; (ii) your violation of any term of these Terms of Use, including but not limited to your breach of any representations or warranties; (iii) your violation of any third-party right, including but not limited to any right of privacy or intellectual property rights in connection with your use of the App; (iv) any content or information that is submitted via your account or use of the App; or (v) any other party’s access and use of the App with your account credentials.
20. Warranty Disclaimer
You acknowledge that Lucero Speaks has no control over, and no duty to take any action regarding: which users gain access to the App; what Lucero Speaks Content you access via the App; how you may interpret or use the Lucero Speaks Content or the App; or what actions you may take as a result of having been exposed to the Lucero Speaks Content. Lucero Speaks cannot guarantee the security and safety of the App given the nature of the Internet and the persistence of bad actors. You hereby release Lucero Speaks from all claims, damages, losses or liabilities related to your use of the App or the Lucero Speaks Content.
THE APPLICATION AND LUCERO SPEAKS CONTENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
OTHER THAN AS EXPRESSLY STATED IN WRITING, LUCERO SPEAKS MAKES NO REPRESENTATION OR WARRANTY THE APPLICATION (1) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR BE TO YOUR LIKING; (2) WILL BE TIMELY, ACCURATE, FREE FROM ERRORS OR LOSS, UNINTERRUPTED, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; (3) WILL BE CORRECTED, REPAIRED OR OTHERWISE RESTORED FOR ANY DEFECTS OR ERRORS THAT OCCUR – SOME FEATURES ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NO ADVICE OR INSTRUCTION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE USER FROM COMPANY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF USE.
21. App User Data
We will maintain certain data that you transmit to the App for the purpose of managing the performance of the App, as well as data relating to your use of the App. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the App. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
22. Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS AFFILIATES, SUPPLIERS, OR BUSINESS PARTNERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE WITH RESPECT TO THE APPLICATION OR THE SUBJECT MATTER OF THESE TERMS OF USE UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF $100 OR THE FEES PAID BY YOU TO COMPANY HEREUNDER DURING THE 12-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR APPLICATION; OR (IV) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
WHERE A JURISDICTION DOES NOT ALLOW LIMITATION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SOME OF THE ABOVE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH CASES, COMPANY’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
23. Termination
You may terminate your use of the App at any time. Lucero Speaks may terminate or suspend your access to the App or your account at any time, without prior notice or liability, if you violate any term or condition of these Terms of Use, if your account is inactive for a period of time, or for any other reason, which may result in the forfeiture and destruction of all information associated with your account, including progress and any upgrades or features obtained or purchased in any Lucero Speaks game. Upon termination of your account, your right to use or access the App and any Lucero Speaks Content will immediately cease.
These Terms of Use shall remain in full force and effect until terminated by Lucero Speaks. For clarity, your termination of your use of the App or deletion of your account, or Lucero Speaks’ termination or suspension of your account, does not terminate these Terms of Use.
24. Electronic Communications, Transactions, And Signatures
Using the App, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the App, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE APP. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
25. California Residents
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer App of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
26. Miscellaneous
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. In the event of unauthorized disclosure of Tween Explorer information, we will notify the linked Caregiver App Users or other parent and guardian where required by law at the contact information associated with the Caregiver App User’s account or other parent or guardian’s email address provided for approval of the Tween account. Lucero Speaks shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of these Terms of Use is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect and enforceable. These Terms of Use are not assignable, transferable or sublicensable by you except with our prior written consent. We may transfer, assign or delegate these Terms of Use and its rights and obligations without consent. Both parties agree these Terms of Use are the complete and exclusive statement of the mutual understanding relating to the subject matter of these Terms of Use, and all modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms of Use and you do not have any authority of any kind to bind Lucero Speaks in any respect whatsoever. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede. Except as expressly set forth in these Terms of Use, you and Lucero Speaks agree there are no third-party beneficiaries intended under these Terms of Use.
27. Contact
If you have any questions, complaints, or claims with respect to the App, you may contact us at support@lucerospeaks.com , or by mail at Legal at Lucero Speaks, 501 Congress Avenue,
Suite 150, Austin, TX 7870.
Last Modified Date: November 25, 2022
© Lucero Speaks, LLC., 2023. All Rights Reserved.