LunaLista
Terms Of Use
Last Updated: August 20, 2009
Welcome to LunaLista. It is our sincere hope that we will fulfill your expectations and that you will stay with us for a very long time.
LunaLista ("LunaLista", "we" or "us") provides a software platform (the "LunaLista Platform, Services and/or Application(s)") that enables you to create, join or browse Groups (as defined below) built on the LunaLista Platform, Services and/or Application(s). We also provide a set of services that will enhance your experience as a member of Groups on the LunaLista Platform, Services and/or Application(s).
These Terms Of Use contain general terms that apply to you as a user of the LunaLista Platform, Services and/or Application(s), along with additional terms that may apply to you as a Group Creator (as defined below) if you decide to create your own Group. When using the LunaLista Platform, Services and/or Application(s), you will also be subject to the LunaLista Privacy Policy and additional posted guidelines, policies or rules applicable to specific services and features on the LunaLista Platform, Services and/or Application(s), which may be posted by us from time to time (collectively, the "Guidelines"). All of these Guidelines are part of the Terms and are hereby incorporated by reference. Additionally, if you are developing networks, products or services using LunaLista's application programming interfaces ("APIs"), or have otherwise signed up for a developer account (thereby becoming a "Third Party Application Developer"), you will also be subject to the LunaLista Application Developer Terms. If you are adding third party widgets and applications ("Third Party Applications") or adding custom code not provided by or endorsed by LunaLista ("Non-LunaLista Code") to your Groups or adding applications that may be developed or contributed by LunaLista ("LunaLista Applications") to either your Group or a third party web site, you will also be subject to the LunaLista Applications Terms. The LunaLista Application Developer Terms and LunaLista Applications Terms are hereby incorporated by reference. We strongly recommend that, as you read these Terms Of Use, you also access and read the linked information.
These Terms Of Use, including any Guidelines and future modifications (collectively the "Terms Of Use" or "Agreement") govern your use of the LunaLista Platform, Services and/or Application(s) and is a legal contract between you and LunaLista.
By registering with us or using or browsing the LunaLista Platform, Services and/or Application(s), you acknowledge that you have read, understood, and agree to be bound by the Terms. If you do not agree to these terms, you can stop using the LunaLista Platform, Services and/or Application(s) at any time.
The LunaLista Platform, Services and/or Application(s) is not directed to children younger than 13 and is offered only to users 13 years of age or older. If you are under 13 years old, please do not use the LunaLista Platform, Services and/or Application(s). Any person who provides their personal information through the LunaLista Platform, Services and/or Application(s) represents to us that they are 13 years of age or older.
You represent that you are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Terms Of Use. If you are using or creating a Group on the LunaLista Platform, Services and/or Application(s) as a representative of a company or legal entity, (i) you represent that you have the authority to enter into the Terms on behalf of that company or entity, and (ii) you agree that the terms "you" and "your" in the Terms refers to your company or legal entity.
Quick Reference:
1. Definitions
2. Benefits
of Creating Your Own Group
3. Services
and Paymterms_of_use.phpent
4. Your
Code and Licenses to Your Code
5. Your
Content and Licenses to Your Content
6. Licenses
From LunaLista
7. Independent
Development; Feedback
8. LunaLista
Trademarks and Legal Notices
9. LunaLista
Ownership Rights
10. Support and Interaction for Group Creators
11. Advertising and Promotion for Group Creators
12. Third Party Content and Hyperlinks to Third Party Sites
13. Representations and Warranties.
14. Acceptable Use and Conduct
15. LunaLista Platform, Services and/or Application(s) Policies
16. LunaLista's Relationship with Users
17. Copyright Infringement/Digital Millennium Copyright Act Compliance
18. Group Member Data
19. Your Group
20. Your Account
21. Disclaimer of Warranties
22. Indemnity
23. Your Interactions with Other Users
24. Limitation of Liability
25. Changes to LunaLista Platform, Services and/or Application(s)
26. Amendments
27. Term and Termination
28. Governing Law; Venue
29. Relationship of the Parties
30. United States Export Controls
31. No Third Party Beneficiaries
32. General
33. Contacting LunaLista
"Content" means (i) any work of authorship in a Group, including, comments, recommendations, forums, photos, videos, music, sounds, images, text, files, listings, logos, trademarks, postings, messages, links, tags and other content added to or submitted with any of the foregoing; or (ii) other materials posted on or transmitted through any Group or the LunaLista Platform, Services and/or Application(s). "Your Content" is any Content that you submit to a Group or the LunaLista Platform, Services and/or Application(s), either as a LunaLista Member, Group Member or Group Creator (all as defined below). If you are a Group Creator, Your Content includes the name, logo, trademark, brand features and other Content that you (and not the Group Members of Your Group(s) make available). Content does not include Network Code or Platform Code.
"Embeddable Widget" means any embeddable application provided and hosted by LunaLista that allows for the viewing or playing of audio, photos, video, text and other material on third party websites or services, including LunaLista Applications, Photo Slideshow and LunaLista Videos.
"Members" means both Group Members and LunaLista Members.
"Network Code" means the software code (i.e., HTML, Javascript, or PHP code) used to provide the functionality for a Group that is interpreted by the Platform Code (as defined below). Network Code consists of LunaLista proprietary code, Third Party Software (as defined below), and may also consist of Your Code (as defined below), as applicable, but expressly excludes Platform Code.
"Group Creator" is a LunaLista Member who creates and operates one or more Groups on the LunaLista Platform, Services and/or Application(s). A Group Creator is by definition a Group Member of each of his or her Groups.
"Group Members" are LunaLista Members who have also registered with a particular Group on the LunaLista Platform, Services and/or Application(s) using their LunaLista ID. "Your Group Members" are Group Members who have registered with Your Group.
"Group Member Data" means data provided by or collected from a Group Member by a Group Creator for a particular Group, such as profile data, including certain items of registration information (e.g. email addresses), answers to Group profile questions, forum posts, and statistical information about Content contributed. Group Member Data does not include the LunaLista ID or any LunaLista Member Data.
"LunaLista ID" is an account you create with LunaLista which includes a name, email address, date of birth and password. When you register as a Group Member on one or more Groups on the LunaLista Platform, Services and/or Application(s), you use the email address and password portion of your LunaLista ID to authenticate with each such Group. Additionally, each Group Administrator of which Group you become a Group Member might have access to your date of birth, email address and name as stored in your LunaLista ID and this information can be pre-populated into both Your LunaLista Profile (as defined below) and Your My Profile (as defined below) upon sign-up.
"LunaLista Members" are Users who complete a registration process with LunaLista and obtain a LunaLista ID. LunaLista Members may also (but are not required to) become Group Members.
"LunaLista Member Data" is data collected from Users by LunaLista, including the data collected for the LunaLista ID and any data provided in Your LunaLista Profile (as defined below). LunaLista Member Data does not include Group Member Data.
"LunaLista Member Services" are the services provided by LunaLista to Group Members. LunaLista Member Services include, but aren't limited to: Group Member registration, Group Member sign in and authentication, a message center, friends, contact management (including the ability to import contacts from third-party email services), and a set of Group membership management services, including a listing of the Groups to which a particular Group Member belongs and management of friends across those Groups. LunaLista Member Services do not include any services that Group Creators provide to their Group Members.
"LunaLista Group Creator Services" are the services LunaLista provides to Group Creators. LunaLista Group Creator Services include, but aren't limited to: a Group Creator's own Group application; Group Member registration and authentication services; Group Member account management; Group management and security applications; internal and external APIs; Javascript-compatible APIs; a semi-structured content store; and Group display, management, and search services. Certain basic LunaLista Group Creator Services are provided free of charge when you create a Group on the LunaLista Platform, Services and/or Application(s).
"LunaLista Profile" means information that, if you are a LunaLista Member, you have provided to LunaLista that is aggregated by LunaLista into a master profile. Your LunaLista Profile is separate from any profile that you create on a particular Group ("My Profile") and enables you to keep track of friends and messages across all Groups. "Your LunaLista Profile" is a LunaLista Profile created by you on the LunaLista Platform, Services and/or Application(s).
"LunaLista Technology" means the past, present and future content of the LunaLista Platform, Services and/or Application(s), including all software in any format (including the Platform Code and Network Code), Embeddable Widgets, hardware, products, processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, all copyrightable or otherwise legally protectible elements of the LunaLista Platform, Services and/or Application(s) and all other tangible or intangible materials related to, displayed, performed or distributed on the LunaLista Platform, Services and/or Application(s) and the LunaLista Platform, Services and/or Application(s) itself, including, the selection, sequence, and "look and feel" and arrangement of items on the LunaLista Platform, Services and/or Application(s), and all LunaLista Marks (as defined below), domain names, patents, and other intellectual property. LunaLista Technology does not include Your Content or Your Code.
"Platform Code" means the proprietary portion of the LunaLista Platform, Services and/or Application(s) that is used to interpret the Network Code and other services available on the LunaLista Platform, Services and/or Application(s).
"Services" are services provided by LunaLista to Group Creators for a fee.
"Groups" consist of Network Code and other Content and are web applications running on top of the LunaLista Platform, Services and/or Application(s). Groups are created by Group Creators and are provided for Group Members of that Group to interact and connect with other Group Members. Group features may include Group Member profiles, friends, invitations, discussion forums, photo sharing, video sharing, music and podcast sharing, events, latest activity streams, RSS feeds, pages, ratings, reviews, and recommendations, among others. If you are a Group Creator, "Your Group" is a Group created and operated by you on the LunaLista Platform, Services and/or Application(s).
"Third Party Software" means software that is licensed to you by third parties, including software that is subject to so-called "open source" licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format, and including the GNU General Public License.
"Third Party Content" means content that is licensed to your Group and/or you by third parties. Some “Third Party Content” is fee based paid by you or your Group Creator and others are free.
"Users" are all end users of the LunaLista Platform, Services and/or Application(s), and include you, any unregistered users, all LunaLista Members, all Group Members, all Group Creators and all Third Party Application Developers.
"Your Code" means any script, code, or other computer software uploaded by you to the LunaLista Platform, Services and/or Application(s).
2. Benefits of Creating Your Own Group
The LunaLista Platform, Services and/or Application(s) is designed to give Group Creators and Group Members the freedom to create and control their own Groups. Group storage and bandwidth limits may be changed from time to time. Subject to the Terms, as a Group Creator, you control your Group and own all of Your Code and Your Content. LunaLista does not claim any ownership rights in Your Code or any of Your Content. There are two types of data provided by or collected from Group Members – Group Member Data and LunaLista Member Data. Group Creators and their designated administrators have access to both the Group Member Data uploaded or collected on their Group(s) and the LunaLista Member Data.
Services
There are two primary ways that we support the LunaLista Platform, Services and/or Application(s): through advertising and Services. As a Group Creator, you can purchase one or more Services from us. The categories and prices of our Services are subject to change from time to time ("Services Policies"). LunaLista may choose to temporarily change the fees for the Services for promotional or new services, and such changes are immediately effective when LunaLista posts the temporary promotional event or new service on the LunaLista Platform, Services and/or Application(s). Any changes to fees for Services that are not temporary or promotional will be effective thirty (30) days after we provide you with notice by posting such changes on the LunaLista Platform, Services and/or Application(s). The changes shall only apply prospectively to the Services you've purchased. Unless otherwise stated, all fees are quoted in U.S. Dollars.
Payment Generally
You are responsible for paying all fees and applicable taxes associated with the Services in a timely manner with a valid payment method. You authorize LunaLista to charge your credit card, charge card, debit card, PayPal, or financial institution account (herein "Payment Method") for all charges to your accounts with LunaLista. Your Payment Method will be charged the current fee for the Service you choose on the date that you click on the "Purchase" button in the ordering process. Today, we offer recurring payments. You agree that LunaLista may automatically charge the fee to your Payment Method at the beginning of each recurring period. For example, if you choose a Service with a monthly plan, you will be billed every month on the anniversary date of the date you clicked the "Purchase" button. Additionally, we may offer a pre-pay payment option for payment of Services ("Pre-Payment Plan"). If you opt for Pre-Payment plan, your Payment Method will be charged the then-current fee for that Service at the commencement of each renewal period.
You acknowledge and agree that any credit card and related billing and payment information that you provide to LunaLista may be shared by LunaLista with companies who work on LunaLista's behalf, such as payment processors and/or credit agencies, solely for the purpose of checking credit, effecting payment to LunaLista and servicing your account. The terms of your payment will be based on your chosen Payment Method and may be determined by agreements between you and the financial institution providing such Payment Method. You agree to pay LunaLista all charges incurred under your account for any Service in which you or anyone else who uses your account (including children, family and friends) enroll in accordance with the Terms and any applicable Services policies. If your Payment Method fails or your account is past due, (a) you agree to pay all amounts due on your account upon demand, (b) LunaLista may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (c) LunaLista reserves the right to either suspend or terminate your Services or your account with LunaLista, including deletion of your Group from the LunaLista Platform, Services and/or Application(s).
Except as may be set forth in applicable Service Policies or Section 27 (Termination), any fees charged to your account are non-refundable. You agree to submit any disputes regarding any charge to your account in writing to LunaLista within sixty (60) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. Refunds (if any) made pursuant to such dispute, are at the discretion of LunaLista.
Taxes
You are responsible for paying any governmental taxes imposed on your use of the LunaLista Platform, Services and/or Application(s), including, but not limited to, sales, use, or value added taxes. If requested, you will promptly furnish to LunaLista the applicable receipts and/or certificates regarding such remittances as soon as reasonably practicable. To the extent that LunaLista is obligated to collect such taxes, the applicable tax will be added to your billing account.
4. Your Code and Licenses to Your Code
You own Your Code. LunaLista does not claim any ownership rights in Your Code. If you upload any of Your Code to the LunaLista Platform, Services and/or Application(s), subject to the licenses granted by you herein, you continue to have the right to use and license Your Code in any way you choose (and you are responsible for protecting those rights as appropriate). You may only upload Your Code to the LunaLista Platform, Services and/or Application(s), for use on Your Group, provided that Your Code complies with the terms of the Terms. At any point, you can take Your Code from Your Group and cancel your account and LunaLista shall not retain any license rights, except as provided below.
You hereby grant LunaLista a non-exclusive, worldwide, perpetual, transferable, irrevocable, sublicenseable, royalty-free right and license to access, use, reproduce, store, modify, distribute, publicly display, publicly perform and create derivative works of Your Code (a) for the purpose of operating and making Your Group available on the LunaLista Platform, Services and/or Application(s) and in all current and future media in which the LunaLista Platform, Services and/or Application(s) may now or hereafter be distributed or transmitted; or (b) for our internal business purposes. Additionally, you hereby grant LunaLista a non-exclusive, world-wide, transferable, irrevocable, sublicenseable royalty-free right and license to continue using, reproducing, archiving, caching, creating derivative works, publicly displaying and performing in perpetuity, any of Your Code that is incorporated into the LunaLista Platform, Services and/or Application(s), provided that LunaLista shall not use or distribute Your Code on a stand alone basis. The foregoing license does not limit LunaLista's rights under any third party or open source license in which Your Code is licensed.
You are responsible for making sure that you have all rights in Your Code you upload or use and all rights that are necessary for you to grant the foregoing licenses to Your Code. You are solely responsible for ensuring that Your Code is compatible with any LunaLista Technology. LunaLista disclaims any liability or responsibility for any unauthorized use of Your Code by third parties or Users of Your Group and is not responsible for protecting Your Code.
5. Your Content and Licenses to Your Content
LunaLista does not claim any ownership rights in Your Content. After posting Your Content, you continue to retain ownership of Your Content, and you continue to have the right to use and license Your Content in any way you choose. The Content that you upload to any Group needs to comply with the terms of the Terms. At any point, you can take Your Content from Your Group and cancel your account and LunaLista does not retain any license rights except as provided below.
You hereby grant LunaLista, during the course of your usage of the LunaLista Platform, Services and/or Application(s), a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right and license to (i) use, reproduce, create derivative works of, distribute, publicly perform and publicly display Your Content (a) for the sole purpose of operating and making Your Content available on the LunaLista Platform, Services and/or Application(s) and in all current and future media in which the LunaLista Platform, Services and/or Application(s) may now or hereafter be distributed or transmitted or (b) for our internal business purposes; and (ii) disclose metrics regarding Your Content on an aggregated basis for advertising, marketing and business development purposes. If you wish to grant Users or the general public additional licenses to Your Content, please include the license terms with Your Content. Without limiting the foregoing, LunaLista reserves the right to retain copies of Content for archival purposes after termination of the Agreement.
You hereby agree that if Your Content is removed from any Group due to a violation of these Terms, including in response to any valid DMCA (as defined below) take down notice or because such Content contains illegal images, LunaLista shall have the right to use, reproduce and exploit Your Content in any manner without restriction, including in response to any subpoena or other judicial or administrative order, to assist government enforcement agencies or otherwise required by law and to protect the rights, property or safety of LunaLista, any individual, or the general public.
You are responsible for making sure that you have all rights in Your Content, including the rights necessary for you to grant the foregoing licenses to Your Content. You are solely responsible for Your Content. You understand that whether or not Your Content is published or marked private by you, LunaLista does not guarantee any confidentiality or privacy with respect to any of Your Content. You agree not to include any advertising in any of Your Content unless you purchase the Service to run your own advertising on Your Group.
Additionally, you understand and agree that Your Content that is displayed on the LunaLista Platform, Services and/or Application(s) may continue to appear on the LunaLista Platform, Services and/or Application(s), even after you have terminated your LunaLista Member or Group Member account or terminated these Terms Of Use, as portions of Your Content may have been incorporated into Member profiles, Forums, Playlist, RSS feeds or other features.
In addition to the rights, licenses and privileges referred to above, you agree that LunaLista, in its sole discretion, may use and refer to your trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in marketing materials, financial reports, presentations, website materials, customer lists and other media now known or hereafter discovered in connection with the marketing, advertising and promotion of the LunaLista Platform, Services and/or Application(s), and any products, goods, features, capabilities and/or services associated with the LunaLista Platform, Services and/or Application(s).
As a Group Creator or Group Member you acknowledge that LunaLista and its designees reserve the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display, or transmit any Content through or on any Group or the LunaLista Platform, Services and/or Application(s) in whole or in part at any time for any reason or no reason with or without notice and with no liability of any kind.
If a Group is removed from the LunaLista Platform, Services and/or Application(s), the Content associated with that Group may also be deleted at the discretion of the Group Creator or LunaLista. We encourage you to be sure you are comfortable with this possibility before contributing Your Content to a Group. You should be aware that LunaLista is not required and may not keep back-up copies of Content (including Your Content) on the LunaLista Platform, Services and/or Application(s) once the Group or Content is deleted. Additionally, LunaLista makes no guarantee, either during or after the term of the Terms, that Your Content will be safely stored on the LunaLista Platform, Services and/or Application(s) and you should independently back-up Your Content.
License to LunaLista Platform, Services and/or Application(s)
During and subject to the terms and conditions of the Terms, LunaLista hereby grants you a limited, non-exclusive, non-sublicensable, freely revocable license to access and use the LunaLista Platform, Services and/or Application(s) solely to enable your use of the LunaLista Member Services and LunaLista Group Creator Services. For clarity, aside from the foregoing limited license, you acknowledge that you shall acquire no rights in the Platform Code or Network Code.
You agree that, as between you and LunaLista, all the intellectual property rights in the LunaLista Platform, Services and/or Application(s), which does not include Your Content or Your Code, are owned by LunaLista or its licensors.
License to Embeddable Widgets
During and subject to the terms and conditions of the Terms, LunaLista hereby grants you a limited, non-exclusive, non-sublicensable, freely revocable license to incorporate Embeddable Widgets into other third party websites or your own personal websites. The foregoing license shall terminate immediately upon expiration or termination of the Terms or removal of Your Group from the LunaLista Platform, Services and/or Application(s) by LunaLista or you and you agree to immediately stop using such Embeddable Widget.
License Restrictions
Except as expressly permitted under the Terms, you agree not to, nor will you allow any third party (whether or not for your benefit) to:
· Run, rent, lease, loan, or sell access to the LunaLista Platform, Services and/or Application(s) or the LunaLista Technology.
· Decompile or reverse engineer or attempt to access the source code of the software underlying the LunaLista Platform, Services and/or Application(s) or LunaLista Technology.
· Copy, archive, store, reproduce, rearrange, modify, adapt, download, upload, create derivate works from, display, perform, publish, distribute, redistribute or disseminate any LunaLista Technology.
· Access the LunaLista Platform, Services and/or Application(s) to build a product using similar ideas, features, functions, interface or graphics of the LunaLista Platform, Services and/or Application(s).
· Access (or attempt to access) any service on the LunaLista Platform, Services and/or Application(s) by any means other than as permitted in these Terms Of Use.
· Circumvent, disable or otherwise interfere with security related features of the Embeddable Widget or features that prevent or restrict use or copying of any Content or Third Party Content or enforce limitations on use of the Embeddable Widget or the Content and Third Party Content therein.
· Access the LunaLista Platform, Services and/or Application(s) to upload Your Code or Your Content to cause a breach of security to the LunaLista Platform, Services and/or Application(s) or any Group or interfere with the proper working of the LunaLista Platform, Services and/or Application(s) or prevent others from using the LunaLista Platform, Services and/or Application(s).
· Delete the copyright and other proprietary rights notices on the LunaLista Platform, Services and/or Application(s) or Embeddable Widgets.
7. Independent Development; Feedback
You agree that LunaLista may be independently developing software, content and other products or services that may be similar to Your Code and Your Content and nothing in the Agreement will be construed as restricting or preventing LunaLista from creating or fully exploiting such software, content and other items, without any obligation to you.
You may from time to time elect, in your sole discretion, to provide suggestions, comments, improvements, ideas, recommendations or other feedback or materials to us related to Your Group or the LunaLista Platform, Services and/or Application(s) (including the Network Code and Platform Code), including, on the LunaLista blog, Group Creators Forum or on any LunaLista Open Forums ("Feedback"). If you elect to provide us any such Feedback, you hereby assign all ownership in and to such Feedback to us, and acknowledge that we will be entitled to use and implement any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to you. To the extent the foregoing is deemed ineffective, you also hereby grant LunaLista a nonexclusive, perpetual, irrevocable, transferable, sublicensable, royalty free, fully paid up license to use and otherwise exploit Feedback.
8. LunaLista Trademarks and Legal Notices
LunaLista trademarks, logos, images, service marks, trade names and other distinctive branding features used on the LunaLista Platform, Services and/or Application(s) "LunaLista Marks" are the trademarks of LunaLista and may not be used without permission. LunaLista is not granting you a license under any intellectual property right to the LunaLista Marks. Other trademarks, logos, and trade names that may appear on the LunaLista Platform, Services and/or Application(s) are the property of their respective owners.
If you are a Group Creator, LunaLista reserves the right to include within Your Group applicable LunaLista copyright and trademark notices for the LunaLista Platform, Services and/or Application(s) and links to the LunaLista Terms Of Use, Privacy Policy and other Guidelines. All notices and links will be displayed consistently in such form and placement as determined by LunaLista.
You agree that, as between you and LunaLista, LunaLista owns all right, title and interest, including, all intellectual property rights, in and to the LunaLista Technology. Additionally, there are two types of data provided by or collected from Group Members – Group Member Data and LunaLista Member Data. If you are a Group Creator or an administrator designated by a Group Creator ("Administrator"), you agree that, as between LunaLista and you, LunaLista owns all right, title and interest, including, all intellectual property rights, in and to the LunaLista Member Data. You shall not acquire any right, title or interest therein, except for the limited rights expressly set forth in the Terms. Any rights not expressly granted herein, are reserved to LunaLista. You agree to abide by all copyright notices, information, or restrictions contained in any part of the LunaLista Platform, Services and/or Application(s). You must not alter, delete, or conceal any copyright, trademark, patent, or other notices contained on the LunaLista Platform, Services and/or Application(s), including notices on any LunaLista Technology you download, transmit, display, print or reproduce from or using the LunaLista Platform, Services and/or Application(s).
10. Support and Interaction for Group Creators
If you are a Group Creator, LunaLista provides documentation to assist you in creating and enhancing Your Group(s). You are responsible for implementing and maintaining all support for Your Group(s), including answering questions from Your Group Members. This includes, if you've customized the Network Code yourself (only as authorized by LunaLista), fixing bugs that Group Members might find and tell you about.
11. Advertising and Promotion for Group Creators
On free Groups, we have the exclusive right to sell, run and/or serve third-party advertising on your Group. If you are a Group Creator, you agree not to include any advertising for anything other than Your Group, including ads served via an ad-server service like Google AdSense, in any Group, any of Your Code, or Content you provide on LunaLista. If you pay the Service fees to run your own ads, however, you may include third-party advertisements or sponsorships on Your Group. If you run your own ads, LunaLista will have the option, which we may exercise on notice to you, to offer and display, in partnership with you, all or some of such advertisements on Your Group. LunaLista may establish general policies and guidelines surrounding the running of your own ads ("Advertising Policies"). Any such Advertising Policies are part of the Terms and are subject to change from time to time.
YOU AGREE THAT LUNALISTA WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON YOUR GROUP.
If you are a Group Creator, LunaLista reserves the right to include promotional links on Your Group(s) at no cost to LunaLista, unless you pay the applicable Service fees to remove promotional links. Removal of promotional links does not include removal of required LunaLista legal notices and links to LunaLista Terms Of Use, Privacy Policy and Guidelines or any statement indicating that LunaLista uses LunaLista ID for authentication upon sign in by Your Group Members.
12. Third Party Content and Hyperlinks to Third Party Sites
Content from other Members or advertisers, including, information about third party products and services and any Third Party Applications, is made available to you through Groups ("Third Party Content") on the LunaLista Platform, Services and/or Application(s). The inclusion of Third Party Content on the LunaLista Platform, Services and/or Application(s) does not imply our affiliation or endorsement of such Third Party Content. Because we do not control Third Party Content, you agree that we are not responsible for any such Third Party Content, including the accuracy, integrity, quality, legality, usefulness, safety or intellectual property rights of or relating to such Third Party Content, it is the sole responsibility of the person from which such Third Party Content originated, and LunaLista has no obligation to monitor such Third Party Content. Notwithstanding the foregoing, LunaLista or its designees reserves the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display or transmit any Third Party Content (including on any Group) in whole or part at any time for any reason or no reason with or without notice and with no liability of any kind. You are solely responsible (and assume all liability and risk) for determining whether or not such Third Party Content is appropriate or acceptable to you. You understand that by using the LunaLista Platform, Services and/or Application(s) you may be exposed to Third Party Content that is offensive, indecent or objectionable, and that you use the LunaLista Platform, Services and/or Application(s) at your own risk.
Additionally, LunaLista or third parties may provide hyperlinks on Groups, or any other form of link or redirection of your connection to other sites ("Third Party Sites"). These Third Party Sites are in no way integrated into the LunaLista Platform, Services and/or Application(s) and the inclusion of any link on a Group does not imply LunaLista's affiliation or endorsement of the linked site, their business practices (including their privacy policies) or any information therein. LunaLista expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third Party Sites linked to by or through the LunaLista Platform, Services and/or Application(s). ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK.
13. Representations and Warranties.
You hereby represent and warrant to LunaLista that: (a) you will comply with all applicable local, state, national and international laws (including the CAN-SPAM Act of 2003), rules, and regulations in connection with your use of the LunaLista Platform, Services and/or Application(s) including your promotional or other activities off the LunaLista Platform, Services and/or Application(s) that relate to Your Group; (b) you have the right to grant to LunaLista the rights granted herein and you own or have all necessary rights, title and interest in and to Your Code and Your Content; (c) Your Code and Your Content does not and will not (i) infringe, violate or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any person; and (d) none of Your Code, Your Content or Your Group contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the LunaLista Platform, Services and/or Application(s), or intercept or expropriate any system data or personal information from the LunaLista Platform, Services and/or Application(s).
14. Acceptable Use and Conduct
You are solely responsible for your conduct, Your Groups, Your Code, and Your Content on the LunaLista Platform, Services and/or Application(s). We want to keep the Groups on LunaLista safe, and fun for everyone and the use of the LunaLista Platform, Services and/or Application(s) for unlawful or harmful activities is not allowed. In defining "safe, and fun," you specifically agree that:
You will not post, upload, send messages, email or make available any Content to Users or use the LunaLista Platform, Services and/or Application(s):
· In a manner that infringes, violates or misappropriates any third party's intellectual property rights or other proprietary rights or contractual rights;
· in a manner that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
· to engage in spamming, "chain letters," "pyramid schemes", advertisement of illegal or controlled products or services, or other advertising or marketing activities that violate these Terms Of Use, any applicable laws, regulations or generally-accepted advertising industry guidelines, including to other Users whether on or off the LunaLista Platform, Services and/or Application(s) in connection with Your Group;
· in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
· in a manner that is libelous or defamatory, or in a way that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or invasive of another's privacy;
· in a manner that is harmful to minors in any way;
· in a manner that is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by LunaLista;
· to impersonate a LunaLista employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity, or to obtain access to a Group or the LunaLista Platform, Services and/or Application(s) without authorization;
· to interfere or attempt to interfere with the proper working of the LunaLista Platform, Services and/or Application(s) or prevent others from using the LunaLista Platform, Services and/or Application(s), or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the LunaLista Platform, Services and/or Application(s), or that otherwise negatively affects other persons' ability to use the LunaLista Platform, Services and/or Application(s);
· to use any manual or automated means, including agents, robots, scripts, or spiders, to access or manage any Group Creator's account or to monitor or copy the LunaLista Platform, Services and/or Application(s) (including the Network Code or Platform Code) or the content contained therein;
· to facilitate the unlawful distribution of copyrighted content;
· in a manner that includes personal or identifying information about another person without that person's explicit consent;
· in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the LunaLista Platform, Services and/or Application(s) or to Users; and
· in a manner that constitutes or contains any form of advertising or solicitation if (1) posted in Your Content; or (2) emailed to Users who have requested not to be contacted about other services, products or commercial interests.
Additionally, you agree not to:
· "Stalk" or otherwise harass anyone;
· Collect, use or disclose data, including personal information, about other Users without their consent or for unlawful purposes or in violation of applicable law or regulations;
· Request, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any Member of the LunaLista Platform, Services and/or Application(s), including LunaLista ID passwords from a Group Creator, or to proxy authentication credentials for any Member of the LunaLista Platform, Services and/or Application(s) for the purposes of automating logins to the LunaLista Platform, Services and/or Application(s);
· Use any profanity or the description or name of any illegal activity in the name of Your Group or the Network Subdomain (as defined below) for Your Group;
· Use the name "LunaLista" as any part of the name of Your Group or the Network Subdomain for Your Group;
· Post any Content containing child pornography to any Group. LunaLista absolutely does not tolerate this and will report any suspected instances of child pornography, including reporting any LunaLista Member Data, to law enforcement, including the National Center for Missing and Exploited Children;
· Post any Content that LunaLista determines in its sole discretion, depicts or contains rape, extreme violence, murder, bestiality, incest, or other similar content;
· Post any Content that LunaLista determines constitutes pornography or is adult in nature. LunaLista’s current policy on what is considered adult is located here and is subject to change.
· Use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from Groups and the LunaLista Platform, Services and/or Application(s) - except for Internet search engines (e.g. Google) and non-commercial public archives (e.g. archive.org) that comply with our robots.txt file, or "well-behaved" web services/RSS/Atom clients. We reserve the right to define what we mean by "well-behaved";
· Post irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on LunaLista's infrastructure;
· Attempt to gain unauthorized access to LunaLista's computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the LunaLista Platform, Services and/or Application(s);
· Take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of the LunaLista Platform, Services and/or Application(s) or for using it for purposes unrelated to LunaLista); and
· Develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of the LunaLista Platform, Services and/or Application(s).
You agree not to authorize or encourage any third party to use the LunaLista Platform, Services and/or Application(s) or any of Your Groups (and Your Groups will not be designed) to facilitate any of the foregoing prohibited conduct. You also agree to immediately notify LunaLista in the event of an actual or threatened claim that you have violated any of the covenants and agreements contained in the Terms.
15. LunaLista Platform, Services and/or Application(s) Policies
LunaLista may establish general polices and limits concerning use of the LunaLista Platform, Services and/or Application(s) ("LunaLista Platform, Services and/or Application(s) Policies"), including (and without limitation) the maximum number of days that Groups and uploaded Content will be retained, the maximum number of and size of Content files and objects (including email messages), the maximum disk space allotted to you or Your Group(s), the maximum number of times and duration for which you may access the LunaLista Platform, Services and/or Application(s) or Groups in a given period of time, the maximum bandwidth used by Your Group(s) or Content, and the maximum CPU power used by Your Groups or Content. The current LunaLista Platform, Services and/or Application(s) Policies are part of the Terms.
16. LunaLista's Relationship with Users
You acknowledge that LunaLista may terminate your account (which is separate from a Group Creator's right to terminate your account), and remove your LunaLista ID, Content and Group Member Data, as well as disable your access to any and all Groups and the LunaLista Platform, Services and/or Application(s), in accordance with the terms of the Terms. If you are a Group Member, you acknowledge that nothing in any agreement (or related policies) you may be subject to with any Group Creator or other party will alter, impair, supersede, amend or otherwise affect in any way any terms of the Terms, any Guidelines or LunaLista's Privacy Policy.
17. Copyright Infringement/Digital Millennium Copyright Act Compliance
It is LunaLista's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act ("DMCA"). For more information, please go to LunaLista's DMCA Notification Guidelines. LunaLista may remove any allegedly infringing Network Code or Content without any liability to you.
LunaLista will promptly terminate without notice any Member's (including, for clarity, Group Member's or Group Creator's) access to the LunaLista Platform, Services and/or Application(s), including access to any Group, in appropriate circumstances where the Member is a "repeat infringer" of copyrights. Generally, LunaLista will consider a Member a repeat infringer if it has received more than two third-party notices of alleged infringement concerning Content or Network Code posted by that Member anywhere on the LunaLista Platform, Services and/or Application(s). LunaLista, however, reserves the right to identify and terminate Members under any circumstances it deems appropriate, including after only a single instance of allegedly infringing behavior by that Member. Additionally, if a Group Creator continues to allow its Group Member's to post Content that is subject to notices of alleged copyright infringement, the Network may (at LunaLista's sole discretion) be disabled.
Additionally, if you are a Group Creator, you agree to: promptly (and in any event in no more than 24 hours) address (including removing or disabling access to the allegedly infringing content for valid DMCA take down notices) any copyright owner's written notice (including any notices forwarded to you by LunaLista) that specified Content or Network Code posted on Your Group infringes that third-party's rights (including copyrights), provided that the notice substantially complies with the requirements in the DMCA. If you receive a counter-notice from the applicable Member that substantially complies with the requirements of the DMCA instructing you to replace the allegedly infringing Content or Network Code, you agree to replace or cease disabling access to the Content or Network Code not less than ten (10) and no more than fourteen (14) days after receiving the counter notice, provided that the complaining party has not notified you that it has filed an action against the Member regarding the alleged infringement. You also agree to forward a copy of the counter notice to LunaLista. LunaLista strongly recommends that you consult with a legal professional to confirm your obligations under the DMCA. LunaLista is not providing legal advice to you and nothing in the Terms is legal advice nor guarantees your compliance with applicable law or regulation. You are solely responsible and liable for complying with all applicable laws, including copyright and privacy laws in connection with Your Group.
Through our LunaLista Member Services, LunaLista collects LunaLista Member Data from Your Group Members and general information about a User's use of Your Group(s). If you are a Group Creator or Administrator, you agree that your access to this LunaLista Member Data (including the email addresses provided by Group Members during the LunaLista ID registration process ) as part of the management controls of Your Group(s) is subject to the LunaLista Privacy Policy. In addition, subject to the Terms, you may collect Group Member Data from Your Group Members; if you do so, you hereby agree that such Group Member Data shall not be used in a manner inconsistent with, or that causes LunaLista to violate LunaLista's Privacy Policy.
Member privacy is important to us. Therefore, if you are a Group Creator or an Administrator, you hereby agree that your use and disclosure of Group Member Data and any LunaLista Member Data shall: (a) comply with all Guidelines; and (b) be reasonably protective of each Group Member's rights and in no event shall you observe standards of privacy and confidentiality in connection with the use and disclosure of LunaLista Member Data or Group Member Data that are less stringent than the standards set forth in the LunaLista Privacy Policy.
Subject to the Terms and each Group Member's rights, all Group Member Data shall be the property of the applicable Group Creators. That being said, LunaLista needs to run Your Group on the LunaLista Platform, Services and/or Application(s). To this end, as a Group Creator, you hereby grant LunaLista a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicenseable, fully paid-up, royalty-free right and license to (i) use, reproduce, store, create derivative works of, distribute, publicly perform and display the Group Member Data on or through the LunaLista Platform, Services and/or Application(s) and in all current and future media in which the LunaLista Platform, Services and/or Application(s) may be distributed; (ii) use and disclose the Group Member Data and related metrics in an aggregate or other non-personally identifiable manner (including, for use in targeting advertising in a non-personally identifiable manner) through and in connection with the LunaLista Platform, Services and/or Application(s); and (iii) use Group Member Data for other purposes permitted by the LunaLista Privacy Policy.
You acknowledge that LunaLista may receive requests from Users or persons authorized to act on behalf of such Users to modify or delete personally identifiable information relating to such Users on Your Group. Accordingly, you agree that, within 24 hours of any email request by LunaLista, you will: (a) delete all Group Member Data and other personally identifiable information in your possession or control relating to a particular User as specified by LunaLista; and (b) confirm such deletion in email notice to LunaLista.
LunaLista is not required to keep back-up copies of Group Member Data on the LunaLista Platform, Services and/or Application(s) once the Group or Group Member Data is deleted. LunaLista makes no guarantee that Group Member Data will be safely stored on the LunaLista Platform, Services and/or Application(s). To be safe, you should independently back-up Group Member Data.
We want to give you as a Group Creator as much freedom to create and control the Groups you build on the LunaLista Platform, Services and/or Application(s) as possible. You may have your own agreement(s) or policies between you and each of Your Group Members, provided that each such agreement or policies do not supersede, amend or otherwise affect in any way any terms of the Terms, any Guidelines or our Privacy Policy and provided that you allow LunaLista to display the LunaLista Terms Of Use, Privacy Policy and any Guidelines on your Group.
To enable a great experience for all Users on the LunaLista Platform, Services and/or Application(s), if you are a Group Creator, you agree to ensure each Group you create or manage does not degrade the performance of the LunaLista Platform, Services and/or Application(s). If your Group(s) exceed the quotas and limitations set by LunaLista (e.g., storage or bandwidth) as set forth in the LunaLista Platform, Services and/or Application(s) Policies or otherwise degrades performance of the LunaLista Platform, Services and/or Application(s) or other services in any way, we may suspend your Group(s) at our sole discretion and without notice.
You agree not to harvest any email addresses from Groups or the LunaLista Platform, Services and/or Application(s) for the purpose of sending email or text messages in violation of applicable law or otherwise violate the "Acceptable Use and Conduct" provisions of the Terms.
You also agree not to knowingly collect any information from, or develop any Groups that are targeted at children under the age of 13.
You acknowledge that LunaLista may terminate the account of any Member (including Your Group Members) in accordance with these Terms Of Use.
Your Group shall not be designed or implemented in a way that, as determined by LunaLista in its sole discretion, might mislead a User into believing that: (i) he or she is interacting directly with LunaLista when interacting with Your Group, or (ii) any of Your Group was created by or are endorsed by LunaLista. Because we want you to have as much freedom over your Group as possible, LunaLista takes no responsibility for any Content located in Your Group and LunaLista has no obligation to monitor such Content or Your Group.
You acknowledge that LunaLista also reserves the right to remove, preserve, and disclose any information or Content on any Group (including LunaLista ID and Group Member Data) or account it deems necessary or appropriate to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce the Terms, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to User support requests, (e) protect the rights, property, or safety of LunaLista, its Users, and the general public, or (f) investigate or defend ourselves against third-party claims or allegations.
You need to register and create a LunaLista ID in order to become a LunaLista Member, Group Member or Group Creator on the LunaLista Platform, Services and/or Application(s). You are responsible for keeping your LunaLista ID password secure. LunaLista IDs are non-transferable. You will be solely responsible and liable for any activity that occurs under your LunaLista ID. LunaLista reserves the right to log off or deactivate Member accounts that are inactive for an extended period of time.
When you create Your Group, LunaLista gives you the flexibility to choose your own subdomain for Your Group (e.g.," developer" in the example: http://developer.lunalista.com) ("Network Subdomain"). You will be solely responsible and liable for any activity that occurs under Your Group's Subdomain. LunaLista maintains ownership of your Network Subdomain and grants you a limited, non-exclusive, non-sublicensable, non-transferable, freely revocable, license solely to use the Network Subdomain on the LunaLista Platform, Services and/or Application(s).
You may not use anyone else's account, LunaLista ID or Network Subdomain at any time, without the permission of the account holder. You should never give out your password to another individual or entity. LunaLista will not be liable for any loss that you may incur as a result of someone else using your LunaLista ID, Network Subdomain, or password, either with or without your knowledge. However, you may be held liable for losses incurred by LunaLista or another party due to someone else using your LunaLista ID, Network Subdomain, or password. In other words, please be careful with your identity and passwords.
YOUR USE OF THE LUNALISTA PLATFORM, AND ALL NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-LUNALISTA CODE, AND CONTENT (INCLUDING THIRD PARTY CONTENT), ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE LUNALISTA PLATFORM AND ALL NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-LUNALISTA CODE AND CONTENT (INCLUDING THIRD PARTY CONTENT) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LUNALISTA AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. LUNALISTA AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS DISCLAIM ANY WARRANTY THAT THE LUNALISTA PLATFORM, OR ANY NETWORK CODE, PLATFORM CODE, THIRD PARTY SOFTWARE, NON-LUNALISTA CODE OR CONTENT (INCLUDING THIRD PARTY CONTENT) WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE LUNALISTA PLATFORM OR THE SERVERS THAT MAKES THE LUNALISTA PLATFORM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. LUNALISTA MAKES NO GUARANTEE REGARDING (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON THE LUNALISTA PLATFORM OR YOUR GROUP (B) THE VOLUME AND QUALITY OF ANY TRAFFIC TO YOUR GROUP OR (C) THE COMPATIBILITY OF YOUR CODE OR ANY NON-LUNALISTA CODE WITH ANY LUNALISTA TECHNOLOGY.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE LUNALISTA PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LUNALISTA OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, OR THROUGH OR FROM THE LUNALISTA PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
You agree to indemnify, defend, and hold harmless LunaLista, and its successors, subsidiaries, affiliates, co-branders, contractors, employees, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys' fees) arising out of or relating to:
· Your Code, Your Content or Your Group;
· Your use of any Non-LunaLista Code or Third Party Applications;
· Your use or misuse of, or connection to, the LunaLista Platform, Services and/or Application(s);
· Your breach or alleged breach of the Terms;
· Your violation of any rights (including intellectual property rights) of a third party;
· Your use or misuse of any User data (including LunaLista Member Data and Group Member Data), including, in violation of the LunaLista Privacy Policy and
· Your breach or alleged breach of any agreement or policy between you and other Users.
LunaLista reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of LunaLista. LunaLista will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
23. Your Interactions with Other Users
Your interactions with other Users, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User. Like with any web-based interaction, we suggest that you use caution and good judgment. If there is a dispute between you and any third party (including any Group Member or Group Creator), LunaLista is under no obligation to become involved.
You release LunaLista, its officers, employees, agents and successors from claims, demands and damages of every kind or nature arising out of or related to any disputes with other Users. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor." And, if you are not a California resident, you waive any applicable state statutes of a similar effect.
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL LUNALISTA OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF LUNALISTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE THE LUNALISTA PLATFORM; OR (B) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) IN EXCESS OF THE GREATER OF (i) $100 AND (ii) THE TOTAL AMOUNTS PAID TO LUNALISTA BY YOU IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN LUNALISTA (INCLUDING THIRD PARTY APPLICATION DEVELOPERS) AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE LUNALISTA PLATFORM OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
25. Changes to LunaLista Platform, Services and/or Application(s)
LunaLista reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing the LunaLista Platform, Services and/or Application(s) or any part thereof with or without notice. LunaLista will not be liable to you or to any third party for any modification, suspension or discontinuance of the LunaLista Platform, Services and/or Application(s).
We may amend, modify, change, add or remove portions of the Terms or any Guidelines at any time without notice to you by posting a revised version on www.lunalista.com or elsewhere on the LunaLista Platform, Services and/or Application(s). The revised version will be effective at the time we post it. Please check the Terms and any Guidelines periodically for changes. Your continued use of the LunaLista Platform, Services and/or Application(s) after posting of the changes constitutes your binding acceptance of such changes. We last modified the Terms on the date stated above.
Term
This Agreement shall remain in full force and effect unless and until your account is terminated as provided herein. You may terminate your membership within any Group on the LunaLista Platform, Services and/or Application(s) at any time and for any or no reason by following the instructions on the "My Settings" page while logged in to a Group. Additionally, you may terminate your LunaLista ID account and end your use of the LunaLista Platform, Services and/or Application(s) at any time and for no reason by following the directions here or contacting us at info@lunalista.com or at the address set forth below in the "Contacting LunaLista" Section.
Termination
LunaLista has the right (at its sole discretion) for any reason to (i) delete, disable or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the LunaLista Platform, Services and/or Application(s) or any Group, (ii) remove and discard any Network Code or Content within any Group or anywhere on the LunaLista Platform, Services and/or Application(s) or (iii) shut down a Group, with or without notice, and with no liability of any kind to you.
If you terminate your account, we will have no obligation to refund you any fees you may have paid except as may be required by applicable law.
Effects of Terminating
Upon deactivating your account, the Terms terminates and you will no longer have a right to access your account, Your Code, Your Content, Your Group Member Data or Your Group(s). LunaLista will not have any obligation to assist you in migrating your data, Your Content, Your Group Member Data, Your Code or Your Group(s) off of the LunaLista Platform, Services and/or Application(s) and LunaLista does not keep any back-up of any of Your Content or Your Group Member Data. LunaLista is not responsible for deleting Your Code, Network Code or Content on your behalf. Note that, even if Your Code, Network Code or Content is deleted from LunaLista's active servers, it may remain in our archives (but we have no obligation to archive or back-up Your Code or such Network Code or Content), and subject to the licenses set forth in the Terms.
Survival
The following Sections will survive termination of these Terms Of Use for any reason: Sections 1, 3, 4-9, 13-24, 27-33.
This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to the Terms or any transactions hereunder.
You agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes. Notwithstanding this, you agree that LunaLista shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction
29. Relationship of the Parties
The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. You agree that LunaLista has no special relationship with or fiduciary duty to you. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
30. United States Export Controls
You agree to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control ("OFAC"), and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State. Specifically, you agree that you shall not -- directly or indirectly -- sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such software or technology) received from LunaLista under the Terms to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, LunaLista from and against any fines or penalties that may arise as a result of your breach of this provision. This export control clause shall survive termination or cancellation of the Terms.
31. No Third Party Beneficiaries
The parties specifically disavow any desire or intention to create a "third party" beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.
The failure of LunaLista to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
You may not delegate your duties under the Terms or assign the Terms or your LunaLista accounts or LunaLista IDs, in whole or in part, provided, however, that you may assign the Terms in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. LunaLista may assign any of its rights and obligations under the Terms without consent, including, in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. This Agreement shall be binding on the parties' permitted assignees, transferees and successors.
This Agreement, which incorporates the LunaLista Privacy Policy and the Guidelines, constitutes the entire agreement between you and LunaLista and governs your use of the LunaLista Platform, Services and/or Application(s), superseding any prior agreements (whether written or oral) between you and LunaLista regarding the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth in the Terms.
The terms "including" and "includes" shall be deemed to be followed by the statement "without limitation" and neither of these terms shall be construed to limit any word or statement it follows to the specific or similar terms or matters immediately following it.
LunaLista may provide you with notices, including those regarding changes to the Terms or any of LunaLista's terms and conditions, by email, regular mail, messages through the LunaLista messaging system or postings on the LunaLista Platform, Services and/or Application(s). Notice will be deemed given twenty-four (24) hours after email is sent, unless LunaLista has previously been notified that the email address is invalid. Notices not pertaining to any amendments to the Terms or any Guidelines (such as notices relating to technical changes to the LunaLista Platform, Services and/or Application(s)) are deemed given two (2) days following the initial posting.
You may contact LunaLista in the following ways:
E-Mail:
info@lunalista.com
Postal:
LunaLista
8126 Enramada Avenue
Whittier, CA 90605
We welcome your feedback on this document and thank you for using LunaLista!.