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THIS AGREEMENT WAS LAST UPDATED ON FEBRUARY 7, 2009.
PLEASE SCROLL DOWN AND READ THIS AGREEMENT IN ITS ENTIRETY BEFORE YOU USE ANY OF OUR PRODUCTS OR SERVICES, OR BECOME A MEMBER OF Lumigrate.com.
1. USE OF THE SITE AND THE SERVICES. You may access and use the Site and the Services only for lawful purposes and solely in accordance with the terms of this Agreement. In addition, you may also be asked to enter into additional agreements before being permitted to access certain of the Services. Those additional agreements are in addition to this Agreement and will govern your use of the Services covered by the additional agreements in the event of a conflict between the terms of this Agreement and those additional agreements.
2. TERMINATION AND SUSPENSION. This Agreement will be effective on the date You first use the Services and will continue until terminated. Lumigrate reserves the right, at its sole discretion, to terminate this Agreement or your access to any part of the Site or the Services with or without notice to You and with or without cause. Lumigrate may also suspend your use of the Site or any Services or direct you to cease using the Site or any Services with or without notice to You and with or without cause. You agree that Lumigrate has no obligation to retain any information provided by You beyond the termination of the Agreement. Upon Termination of this Agreement, all rights and licenses granted to You in this Agreement will immediately cease to exist. The provisions of Sections 2, 3.3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 of this Agreement will survive termination of the Agreement for any reason.
3. ACCESS TO THE SERVICES
3.1 Registration and Account Creation. Before being permitted to access or use certain of the Services, You will be asked to register and submit certain information about Yourself ("Registration Information"). You represent and warrant that: (a) all Registration Information You have provided is true, accurate, current and complete; and (b) You will maintain and promptly update the Registration Information to keep it true, accurate, current and complete. In connection with Your registration, You also will be asked to create a password-protected account to access the Services (an "Account"). You agree to keep your Account information and password confidential. You agree to notify Lumigrate immediately of any actual or suspected unauthorized use of Your Account. You are solely responsible for all activities that occur through Your Account, including, without limitation, all fees and charges incurred through Your Account. Lumigrate will not be responsible for any loss to You caused by Your failure to comply with these obligations.
3.2 Use of the Services. After establishing an Account, You may access and use the Services, including without limitation, the purchase of informational videos (the "Videos") made available through the Services.
3.3 Restrictions. You will not: (a) license, sublicense, rent, lease, loan, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services, including the Videos; or (b) copy, distribute, display, publicly perform, modify or make derivative works of any Videos. All rights not expressly granted to You under this Agreement are reserved by Lumigrate and its licensors.
4. FEES AND PAYMENT. You acknowledge that certain of the Services require the payment of either one-time fees, subscription fees, or per-use fees as indicated on the Site ("Fees"). All Fees will be charged at the rates displayed at the time the Services, including any Videos, associated with those Fees are ordered. All Fees are subject to change, such change effective upon notice to You. You are responsible for all Fees incurred through the use of Your Account (regardless of whether You personally incurred the Fees). All Fees for Services provided through Your Account will be billed to You using the method of payment You have selected. If You choose to have Fees billed directly to a designated credit card or account, You hereby authorize Lumigrate to charge Your designated credit card or account for those Fees. All Fees will be charged or billed in advance of providing the relevant Services and, once paid, are non-refundable. Any Fee not paid when due will accrue interest at 18% per year (1.5% per month) or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All Fees will be billed and paid in U.S. dollars.
5. YOUR ADDITIONAL RESPONSIBILITIES. The Services may provide forums, bulletin boards, or other opportunities for You to post or upload materials including, but not limited to, data, text, files, images, graphics, illustrations, audio, video, and photographs (collectively, "Content") of Your own to the Site. You agree not to post, upload or provide any Content which is: (1) libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (2) an infringement of the Intellectual Property Rights (as defined in Section 7 below) of any third party; (3) illegal in any way or which advocates illegal activity; (4) an advertisement or solicitation of funds, goods, or services. By providing or uploading any Content to the Site, You grant Lumigrate a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display such Content throughout the world in any form, media, software or technology of any kind in connection with the provision of the Services. You also grant Lumigrate the right to use Your name in connection with the reproduction or distribution of such material.
6. CLAIMS OF INFRINGEMENT. Just as Lumigrate requires users of the Site to respect the copyrights and other intellectual property rights of Lumigrate and its licensors, Lumigrate respects the copyrights and other intellectual property rights of users of the Site and other third parties. If you believe in good faith that your copyrighted work has been reproduced on the Site without authorization in a way that constitutes copyright infringement, you may notify our designated copyright agent by mail to:
Attn: Copyright Infringement Agent
PO Box 2567
Grand Junction, CO 81502-2567
Please provide the following information to Lumigrate's Copyright Infringement Agent:
- the identity of the infringed work, and of the allegedly infringing work;
- Your name, address, daytime phone number, and e mail address, if available;
- a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law;
- a statement of the accuracy of the notice and, under penalty of perjury, that You are authorized to act on behalf of the owner; and
- Your electronic or physical signature.
7. OWNERSHIP OF INTELLECTUAL PROPERTY. Lumigrate and its licensors own all rights, title and interest in and to the Site and Services, including, without limitation, the Videos and any Intellectual Property Rights (defined below) therein and/or related thereto. The Lumigrate name and logo are trademarks of Lumigrate, and no right or license is granted to You herein to use such trademarks (collectively, "Marks"). "Intellectual Property Rights" means all worldwide patent, patent applications, copyrights, trade secrets, trademarks, service marks, trade names and any other intellectual property, proprietary, and database protection rights.
8. REPRESENTATIONS AND WARRANTIES. You represent, warrant and covenant for the benefit of Lumigrate that: (1) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (2) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; (3) all information You provide to Lumigrate in connection with this Agreement and your access to the Site and use of the Services is correct and current.
9. DISCLAIMER. THE PARTIES ACKNOWLEDGE THAT THE SERVICES ARE PROVIDED TO YOU STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH NO WARRANTIES WHATSOEVER. YOU RECOGNIZE THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE SITE AND USE OF THE SERVICES AND INTERRUPTIONS, CRASHES AND DOWNTIME MAY OCCUR FROM TIME TO TIME. LUMIGRATE AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY AS TO THE SERVICES, INCLUDING THE VIDEOS. MET DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; OR (C) ANY VIDEOS PROVIDED THROUGH THE SERVICES WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE. LUMIGRATE AND ITS LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO ORAL OR WRITTEN INFORMATION GIVEN BY LUMIGRATE OR ITS LICENSORS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. LUMIGRATE'S ONLY OBLIGATION AND YOUR SOLE REMEDY IN THE EVENT OF A FAILURE OF THE SITE OR ANY SERVICES WILL BE, AT THE SOLE DISCRETION OF LUMIGRATE, REPERFORMANCE OF THE SERVICES OR REFUND OF ANY FEE PAID BY YOU IN CONNECTION WITH THOSE SERVICES.
YOU AGREE THAT YOUR ACCESS TO THE SITE AND USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR THROUGH ACCESS TO THE SITE OR USE OF THE SERVICES.
10. THIRD PARTY CONTENT. Lumigrate may utilize content in providing the Services that is owned or provided by third party licensors of Lumigrate, or that are available in the public domain (collectively, the "Third Party Content"). LUMIGRATE AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WITH REGARD TO THE THIRD PARTY CONTENT, INCLUDING THE ACCURACY, COMPLETENESS OR USEFULNESS OF SUCH THIRD PARTY CONTENT OR OF THE RESULTS GENERATED BASED ON THE THIRD PARTY CONTENT.
11. INDEMNIFICATION. You will indemnify, defend, and hold harmless Lumigrate, its licensors, and each of their respective employees, officer, directors, and affiliates ("Indemnified Parties"), from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) which result from any claim or allegation against any Indemnified Party arising from Your accessing the Site or Use of the Services or Your breach of any term of this Agreement. Lumigrate will provide You with notice of any such claim or allegation, and Lumigrate will have the right to participate in the defense of any such claim at its expense
12. LIMITATION OF LIABILITY.
12.1 General Limitation. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL LUMIGRATE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING LOSS OF DATA, REVENUE, OR PROFITS), WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF, OR IN CONNECTION WITH THE SITE, THE SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SITE OR SERVICES, OR ANY VIDEOS OBTAINED FROM OR THROUGH THE SERVICES, EVEN IF LUMIGRATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.
12.2 Cap on Liability. IN NO EVENT WILL LUMIGRATE'S TOTAL LIABILITY IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT EXCEED (A) FOR NON-PAYING CUSTOMERS, ONE HUNDRED DOLLARS ($100); (B) FOR PAYING CUSTOMERS, THE FEES RECEIVED BY LUMIGRATE FROM THE PAYING CUSTOMER FOR THE SERVICES. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, LUMIGRATE'S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW
13. ENTIRE AGREEMENT. This Agreement is the complete and exclusive statement of the agreement between Lumigrate and You regarding the Services and supersedes any other agreement or proposal, oral or written (including information on the Site), and any other communications between the parties in relation to the Services and the subject matter of this Agreement.
14.1 By You. All notices provided to Lumigrate by You under this Agreement must be delivered in writing by courier, by electronic facsimile, or by certified or registered mail (postage prepaid and return receipt requested) at Lumigrate's address set forth on the Site. Such notice will be effective upon receipt or 3 business days after being deposited in the mail, whichever occurs sooner.
14.2 By Lumigrate.Lumigrate may provide notice to You under this Agreement by posting of a general notice on the Site or through the Services; by electronic mail to Your e-mail address on record in the Registration Information; or by certified or registered mail (postage prepaid and return receipt requested) to Your address on record in the Registration Information. Such notice will be effective upon receipt, the expiration of 48 hours after posting to the Site or through the Services, 12 hours after sending (if sent by email), or 3 business days after being deposited in the mail, whichever occurs soonest.
16. LINKED SITES. The Site may contain links to third-party sites that are not under the control of Lumigrate and Lumigrate is not responsible for any content on any linked site. If you access a third-party site from the Site, then you do so at your own risk. Lumigrate provides links only as a convenience and the inclusion of the link does not imply that Lumigrate endorses or accepts any responsibility for the content on those third party sites. Lumigrate welcomes links to the Site. You may establish a link to this Site, provided that the link does not state or imply any sponsorship or endorsement of your site by Lumigrate or any group or individual affiliated with Lumigrate. You may not use on your site any Content or Marks appearing on the Site in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Site without prior written consent.
17. GENERAL. This Agreement will be governed by the laws of the State of Colorado without regard to conflicts of law principles. All disputes arising under this Agreement must be brought in the state or federal courts located in Denver, Colorado. Each party irrevocably hereby consents to the jurisdiction and venue of any such court in any such action or proceeding. Lumigrate's licensors are intended third-party beneficiaries under this Agreement with the right to enforce the provisions that directly concern the rights granted to Lumigrate by the licensors. There are no other third party beneficiaries under this Agreement. This Agreement may not be modified except upon mutual written agreement of both parties. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is deemed unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. You may not assign, delegate or otherwise transfer this Agreement or any of Your rights or obligations under this Agreement without the prior written consent of Lumigrate. Any such assignment, delegation or transfer in violation of the foregoing will be null and void.