Legal Information and Notices
Last Updated: February 22, 2016
These Terms and Conditions of Use (this “Agreement”) apply to the Lilasophy web site located at www.lilasophy.com and all associated sites linked to www.lilasophy.com by Lilasophy, LLC ("OUR", "WE", "COMPANY" OR "LILASOPHY"), its subsidiaries and affiliates (collectively, the “Site”).
THIS AGREEMENT BINDS YOU OR THE COMPANY YOU REPRESENT ("YOU," OR "YOUR") TO THE TERMS AND CONDITIONS SET FORTH HEREIN IN CONNECTION WITH YOUR USE OF OUR SITE, SOFTWARE, MOBILE APPLICATIONS, SERVICES OR OTHER OFFERINGS ON OUR SITE (COLLECTIVELY, OUR "PRODUCTS"). BY USING ANY OF THE COMPANY PRODUCTS OR CLICKING ON THE "CREATE NEW ACCOUNT" BUTTON, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE COMPANY PRODUCTS. COMPANY'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS AND CONDITIONS OF USE ARE CONSIDERED AN OFFER BY COMPANY, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
BY USING OUR SITE AND/OR BY COMPLETING THE REGISTRATION PROCESS FOR THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE, OR OLDER, HAVE READ AND UNDERSTOOD THESE TERMS AND CONDITIONS, HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT AND HEREBY AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT UNDERSTAND ANY OF THE TERMS HEREIN, PLEASE CONSULT YOUR OWN ATTORNEY FIRST AND DO NOT CLICK ON ANY BUTTON THAT SUGGESTS YOU UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL AFFECT THE STATUTORY RIGHTS OF A CONSUMER.
2. Additional Terms.
If you are an Instructor (as defined below), You are also subject to the Instructor Terms and Conditions located below. If you are an Instructor, and a conflict arises between the terms of this Agreement and the Instructor Terms and Conditions, the Instructor Terms and Conditions will govern.
Lilasophy allows Instructors and Students to connect using asynchronous functions, such as pre-recorded lessons, messaging and facilitates Articulate assessments. Instructors can also use Live Sessions for synchronous instruction, where instructors and students can meet face to face. Lilasophy allows for the hosting and facilitation of these types of courses.
The Company anticipates the Service to evolve over time and therefore reserves the right to amend this Agreement and the Use Policies, at any time and without prior notice to You. Such amendments shall be effective immediately upon posting to the Website. The Company agrees to make You aware of amendments to this Agreement by updating the “Last Revised” date at the top of this page. Therefore, in accepting the terms of this Agreement, You acknowledge that (i) the Company may notify You of amendments to this Agreement by posting them to the Website and (ii) Your use of the Service after the Company has last revised this Agreement constitutes Your acceptance of this Agreement, as amended from time to time. If you do not agree to be bound by this Agreement as Last Revised, do not use (or continue to use) the Service. The terms and conditions of this Agreement as Last Revised shall govern any conflict between or among various versions of this Agreement and those contained herein.
In addition, the Company may modify the Products contained on the Site or discontinue their availability at any time without notice. Notwithstanding the preceding sentences of this section, no revisions to this Agreement will apply to any dispute between You and the Company that arose prior to the date of such revision.
You are solely responsible for all service, telephony, data charges and/or other fees and costs associated with Your access to and use of the Site and Products, as well as for obtaining and maintaining all telephone, computer hardware, and other equipment required for such access and use. The Service may be subject to delays, limitations and other problems inherent in the use of the Internet for electronic communications and transmissions. You acknowledge and agree that the Company is not responsible for any delays, delivery failures or other damage resulting from the use of the Internet for interacting with the Service and agree to hold the Company harmless from any such claims to the extent such delays, failures or other damages are beyond the Company’s reasonable control and are not the result of the Company’s gross negligence or willful misconduct.
If You elect to access or use Products for which the Company charges a fee, then You agree to pay, and will be responsible for payment of, that fee and all taxes associated with such access or use. If You provide credit card information to pay for such fees, then You hereby represent and warrant that You are authorized to supply such information and hereby authorize the Company to charge Your credit card on a regular basis to pay the fees as they are due. If Your payment method fails or Your account is past due, then We may collect fees owed using other collection mechanisms. This right may include charging other payment methods on file with Us and/or retaining collection agencies and legal counsel. We may also block Your access to any Products pending resolution of any amounts due by You to the Company.
All of Your use, access and other activities relating to the Site and the Products must be in compliance with all applicable laws and regulations, including, without limitations, laws relating to copyright and other intellectual property use, and to privacy and personal identity. In connection with Your use of the Site and Products, You must not provide incorrect or knowingly false information; copy, distribute, modify, reverse engineer, deface, tarnish, mutilate, hack, or interfere with the Products or operation of the Site; frame or embed in the Site or Products; impersonate another person or gain unauthorized access to another person's account; introduce any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Products or operation of the Site; scrape, spider, use a robot or other automated means of any kind to access the Products.
4. General Disclaimer.
The Site is only a marketplace for Instructors and Students. We do not hire or employ Instructors nor are We responsible or liable for any interactions involved between the Instructors and their respective clients. We are not responsible for disputes, claims, losses, injuries, or damage of any kind that might arise out of or relate to conduct of Instructors or Students, including, but not limited to, any Student's reliance upon any information provided by an Instructor.
We do not control Submitted Content (as defined below) posted on the Site and, as such, do not guarantee in any manner the reliability, validity, accuracy or truthfulness of such Submitted Content. You also understand that by using the Products may expose You to Submitted Content that You consider offensive, indecent, or objectionable. The Company has no responsibility to keep such content from You and no liability for Your access or use of any Submitted Content, to the extent permissible under applicable law.
The Site and Products may give You access to links to third-party Websites ("Third Party Sites"), either directly or through Courses or Instructors. The Company does not endorse any of these Third Party Sites and does not control them in any manner. Accordingly, the Company does not assume any liability associated with Third Party Sites. You need to take appropriate steps to determine whether accessing a Third Party Site is appropriate, and to protect Your personal information and privacy on such Third Party Sites. You are advised to verify the privacy practices of all providers of Submitted Content. The Company will not be responsible for the manner of use or misuse of information You specifically volunteer by entering data about Yourself while accessing Submitted Content, and information generally made available by Your act of accessing Submitted Content, including browser type and language, beacons, clickstream data, cookies, date/time stamp, IP address, ISP information, GPS position and any other technologies that inventory, log, reveal or otherwise track Your interaction with Submitted Content. The Company encourages You not to provide personal information at Third Party Sites without first familiarizing Yourself with their privacy policies and taking such other action as You deem appropriate to prevent the accidental or unintentional disclosure of Your Information.
You may only access the Products for lawful purposes. You are solely responsible for the knowledge of and adherence to any and all laws, rules, and regulations pertaining to Your use of the Site and Products. You agree not to use the Products or the Company Content (as defined below) to recruit, solicit, or contact in any form Instructors or potential users for employment or contracting for a business not affiliated with us without Our advance written permission, which may be withheld in Our sole discretion. You assume any and all risks from any meetings or contact between You and any Instructors or other Users of the Products.
You acknowledge and agree to comply with all applicable local, state, national and international laws and regulations governing use of the Service. You agree to restrict Your use, to lawful purposes only. By accepting this Agreement, You acknowledge and agree that You have not relied upon, nor in any way been induced by, any written, verbal or other representation or statement, whether in whole or in part, material or otherwise, by the Company, its officers, directors, shareholders, or employees, that Your acceptance of this Agreement and/or Your use of the Service satisfies any applicable law or regulation.
6. Specific Obligations of Instructors.
If You are instructing Students in connection with a Course, You are an "Instructor" and the following additional terms and conditions apply. Accordingly, You represent, warrant and covenant that:
• You are subject to the Company's approval, which We may grant or deny in Our sole discretion;
You need to visit www.lilasophy.com and complete the Instructor enrollment process. If You will charge fees for Your Courses, You will also need to agree to the Our Pricing terms, which include a 15% fee for courses you sell and 9% + 30 cents for all Live Sessions you charge for. If you do not charge for your courses or Live sessions, then you will not be charged;
You will be responsible for all of Your Submitted Content, that You own or have the necessary licenses, rights, consents, and permissions, and have the authority to authorize the Company, to reproduce, distribute, publicly perform (including by means of a digital audio transmission), publicly display, communicate to the public, promote, market and otherwise use and exploit any of Your Submitted Content on and through the Products in the manner contemplated by this Instructor Agreement, and that no Submitted Content shall infringe or misappropriate any intellectual property right of a third party;
You have the required qualifications, credentials and expertise, including without limitation, education, training, knowledge, and skill sets, to teach and offer the services You offer on and through the Site and the Products;
You will not post any inappropriate, offensive, racist, hateful, sexist, pornographic, false, misleading, infringing, defamatory or libelous content;
You will not upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise) through the Products or to any User;
You will not use the Products for any business other than for providing tutoring, teaching and instructional services to Students;
You will not engage in any activity that will require the Company to obtain any licenses from or pay any royalties to any third party, including, by way of example and not limitation, the payment of royalties for the public performance of any musical works or sound recordings;
You will not copy, modify or distribute Company Content except as permitted in this Instructor Agreement;
You will not interfere with or otherwise prevent other Instructors from providing their services or Courses;
You will maintain Your enrollment and account information, and all such enrollment and account information shall be accurate;
You shall respond promptly to Users seeking Your services and ensure a quality of service commensurate with the standards of Your industry and instructional services in general;
You are over the age of 18 or, if not, you are between the ages of 13 and 17 and a third party parent or legal guardian has agreed to this Agreement and the Instructor Terms and will assume responsibility and liability for Your performance and compliance hereunder; and
You acknowledge that neither Your act of entering into this Agreement nor use of the Service as an Instructor creates a fiduciary or employment relationship with the Company. The Company’s performance of its obligations under this Agreement shall be that of an independent contractor, and nothing herein shall create or imply an agency relationship between the Company and the Instructor, nor shall this Agreement be deemed to constitute a franchise, joint venture or partnership between such parties.
7. Specific Obligations of Students Using the Site.
If You are a User in search of or participating in a Course, You are a Student and the following additional terms and conditions apply to this Agreement. Accordingly, You represent, warrant and covenant that:
You have read, understood, and agree to be bound by the pricing information (see the Pricing section below) before using the Site or registering for a Course;
You are over the age of 18, or, if not, You will only use the Products with the involvement, supervision, and approval or a parent or legal guardian. Children under the age of 13 may not register for an account or register or purchase Courses.
You will not upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise) through the Site or the Products;
You will not post any inappropriate, offensive, racist, hateful, sexist, pornographic, false, misleading, infringing, defamatory or libelous content;
You will not reproduce, distribute, publicly display, publicly perform, communicate to the public, create derivative works from or otherwise use and exploit any Company Content, the Products or Courses or Submitted Content except as permitted by this Agreement or the relevant Instructor as applicable;
You will not disclose any personal information to an Instructor, and otherwise will assume responsibility for controlling how Your personal information is disclosed or used, including, without limitation, taking appropriate steps to protect such information; and
You will not solicit personal information from any Instructor or other User.
To use certain Products, You will need to register and obtain an account, username and password. When You register, the information You provide to us during the registration process will help us in offering content, customer service, and network management. You are solely responsible for maintaining the confidentiality of Your account, username, and password (collectively, Your "Account") and for all activities associated with or occurring under Your Account. You represent and warrant that Your Account information will be accurate at all times. You must notify us (a) immediately of any unauthorized use of Your Account and any other breach of security, and (b) ensure that You exit from Your Account at the end of each use of the Site or Products. To the extent permissible under applicable law, we cannot and will not be responsible for any loss or damage arising from Your failure to comply with the foregoing requirements or as a result of use of Your Account, either with or without Your knowledge, prior to Your notifying us of unauthorized access to Your Account.
You may not transfer Your Account to any other person and You may not use anyone else's Account at any time without the permission of the account holder. In cases where You have authorized or registered another individual, including a minor, to use Your Account, You are fully responsible for (i) the online conduct of such User; (ii) controlling the User's access to and use of the Products; and (iii) the consequences of any misuse. In no event shall the Company have an obligation to honor, in whole or in part, any written or verbal communication, document, instruction, notice or transaction that the Company in good faith believes may not be authorized by You or by any other person whose authorization the Company believes is required by this Agreement. If the Company reasonably questions the authenticity of any written or verbal communication, document, instruction, notice or transaction, the Company reserves the right -- but assumes no duty -- to require additional verification of authenticity from You and/or the other party, or both. The Company disclaims liability for any loss or damage resulting from its good faith reliance on any written or verbal communication, document, instruction, notice or transaction reasonably believed by the Company to be authentic, genuine and originating from one of Your authorized representatives.
9. Content, Licenses & Permissions.
All software, technology, designs, materials, information, communications, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, video clips, photos, images, reviews, ideas, and other data or copyrightable materials or content, including the selection and arrangements thereof is "Content." Where the Company provides Content to You in connection with the Products, including, without limitation, the Software and the Products and the Site, it is "Company Content." Content uploaded, transmitted or posted to the Site or through the Products by a User is "Submitted Content." Content remains the proprietary property of the person or entity supplying it (or their affiliated and/or third party providers and suppliers) and is protected, without limitation, pursuant to U.S. and foreign copyright and other intellectual property laws. You hereby represent and warrant that You have all licenses, rights, consents, and permissions necessary to grant the rights set forth in this Agreement to Company with respect to Your Submitted Content and that Company shall not need to obtain any licenses, rights, consents, or permissions from, or make any payments to, any third party for any use or exploitation of Your Submitted Content as authorized in this Agreement or have any liability to You or any other party as a result of any use or exploitation of Your Submitted Content as authorized in this Agreement.
You hereby grant the Company a non-exclusive right and license to reproduce, distribute, publicly perform, offer, market and otherwise use and exploit the Submitted Content on the Site and through the Products, and sublicense it to Instructors and Users for these purposes directly or through third parties. Notwithstanding the foregoing, You have the right to remove all or any portion of Your Submitted Content from the Site at any time. Removal of Your Submitted Content will terminate the foregoing license and rights sixty (60) days after such removal as to new uses, provided, however, that any rights given to Users prior to that time will continue in accordance with the terms granted to such Users.
The Company hereby grants You (as a User) a limited, non-exclusive, non-transferable license to access and use Submitted Content and Company Content, for which You have paid all required fees, solely for Your personal, non-commercial, educational purposes through the Site and the Products, in accordance with this Agreement and any conditions or restrictions associated with particular Courses or Products. All other uses are expressly prohibited absent Our express written consent. You may not reproduce, redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, license, or otherwise transfer or use any Submitted Content or Company Content unless We give You explicit permission to do so. Submitted Content and Company Content is licensed, and not sold, to You. Instructors may not grant You license rights to Submitted Content You access or acquire through the Services and any such direct license shall be null and void and a violation of this Agreement.
You agree that We may record all or any part of any Courses (including voice chat communications) for quality control and delivering, marketing, promoting, demonstrating or operating the Site and the Products. You hereby grant the Company permission to use Your name, likeness, image or voice in connection with offering, delivering, marketing, promoting, demonstrating, and selling the Site, Products, Courses, Company Content and Submitted Content and waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection therewith, to the extent permissible under applicable law.
THE COMPANY RESPECTS ALL COPYRIGHT, PRIVACY, DEFAMATION AND OTHER LAWS RELATING TO CONTENT AND INFORMATION AND WILL NOT TOLERATE VIOLATION OF SUCH LAWS. NOTWITHSTANDING THE FOREGOING, THE COMPANY DOES NOT SCREEN THE SUBMITTED CONTENT AND ALL USE OF THE SUBMITTED CONTENT BY YOU IS AT YOUR OWN RISK AND THE COMPANY SHALL HAVE NO LIABILITY FOR SUCH USE. IN PARTICULAR, NO REVIEW OR POSTING OR APPEARANCE OF THE SUBMITTED CONTENT ON THE SITE OR THROUGH THE PRODUCTS IS INTENDED TO ACT AS AN ENDORSEMENT OR REPRESENTATION THAT ANY SUBMITTED CONTENT IS FREE OF VIOLATION OF ANY COPYRIGHT, PRIVACY OR OTHER LAWS OR WILL SUIT A PARTICULAR PURPOSE OR BE ACCURATE OR USEFUL. The inclusion of any accreditation body, business, company, individual or trade association on the Service should not be construed by You as a recommendation of that accreditation body, business, company, individual or trade association or of their products or services, or that the Company has made an independent determination as to their product quality or competency in performing services. The Company neither endorses nor recommends any such products or services, and the Company does not have experience of or with all such accreditation bodies, businesses, companies, individuals or trade associations or their products or services.
If You believe that Submitted Content of Yours violates any law or regulation or is inaccurate or poses any risk whatsoever to a third party, it is Your responsibility to take such steps You deem necessary to correct the situation. If You believe that Submitted Content of a third party or any Company Content violates any laws or regulations, including, without limitation, any copyright laws, You should report it to the Company as soon as possible.
All rights not expressly granted in this Agreement are retained by the Content owners and this Agreement do not grant any implied licenses.
10. Pricing for Paid Courses.
(a) Key Definitions
"Base Price" means the course price set by the Instructor.
"Base Currency" means the currency of the Base Price.
"Base Exchange Rate" means a system-wide rate used by the Company for foreign currency conversion and does not include any fee or mark-up by the Company. The rate is established using one or more third parties such as Open Exchange Rates and is fixed periodically (e.g. monthly) to prevent daily price fluctuations. Accordingly, the Base Exchange Rate may not be identical to the applicable market rate in effect at the specific time a foreign currency conversion is processed.
"Sale Price" means the actual sale price for the Course or Live Session. When the Sale Currency is different from the Base Currency, the Company will determine the Sale Price based on the applicable Base Exchange Rate and Cost Adjustment Factor.
"Sale Currency" means the currency of the sale. This is determined by the country of origin of the User purchasing the Course.
"Cost Adjustment Factor" means applicable local taxes and other fees associated with currency conversions. In regions that use a common currency, e.g., the EU, the Cost Adjustment Factor uses a weighted average of country specific tax rates to ensure the same prices to end customers across the region.
The instructor will be solely responsible for determining the Base Price to be charged for their Course, in accordance with the Instructor Terms. When the Sale Currency is different than the Base Currency, the Company will determine the Sale Price according to the most recent Base Exchange Rate and applicable Cost Adjustment Factor. Lilasophy will take 15% of the total amount charged for courses. Lilasophy will also take 9% plus .30 cents for amounts chareged by the instructor for Live Session.
If You are a Student, You agree to pay the fees for Courses that You take, and hereby authorize Us to charge Your credit card for these amounts. We will charge Your credit card at the time of purchase for all amounts owed. If Your credit card is declined, You agree to pay Us the fees within thirty (30) days of notification from Us, and pay (at Our discretion) a late payment charge at 1.5% per month, or the maximum permitted by law, whichever is greater.
Payments are processed by our payment partners. Submitted of the U.S.A., Instructor payments are paid through foreign bank transfers per the instructors request to cash out their account.
European Union: In the event that the sale or delivery of a Course or any Submitted Content to any Student in the U.S.A. or European Union is subject to any value added tax ("VAT"), under applicable law, the Company will collect and remit the VAT to the competent tax authorities for sales of such Courses or Submitted Content to Students in the European Union. The Company may at its own discretion increase the Sale Price where the Company is of the view that VAT may be due and the Company will have a liability to account for such. You will indemnify and hold the Company harmless against any and all claims by any tax authority for any underpayment of VAT, and any penalties and/or interest thereon.
All other countries:For sales of any of Courses or Submitted Content in countries other than the European Union, You are responsible for remitting the taxes to the appropriate taxing authority (which may be different to the tax authority in your own location). The Company is unable to provide you with tax advice and You should consult your own tax advisor.
(e) Rounding Off
The Company may, in its sole discretion, round up or round down the Sale Price to the nearest whole functional base unit in which the Sale Currency is denominated (e.g. to the nearest dollar, euro or other supported currency); for example, Company will round up an amount of $101.50 to $102.00, and $101.49 to $101.00. Some currencies are denominated in large numbers. In those cases, Company may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for the Company to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000.
(f) Foreign Currency
Company's online platform will default the Sale Currency based on Your geographic location. The currency of any transaction will match the Sale Currency displayed to You on the Site. You cannot change Your displayed currency. Each foreign currency conversion is processed at a foreign currency conversion rate. This rate generally refers to the amount of one currency that must be paid to buy a certain amount of another currency at a given time. For example, if it costs US$125.00 to buy €100.00, the currency conversion rate of US dollars to Euros would be 1.25, and the currency conversion rate from Euros to US dollars would be 0.8. Currency conversion rates will vary from time to time.
If you, as a Student, are unhappy with a Course and request a refund within ten (10) days of the date that you paid for access to that Course, and have not completed the course, we will provide you with a full refund of the amount you paid. To request a refund, please contact us via www.lilasophy.com/contact. Please note that if we believe that you are abusing our refund policy in our sole discretion, we reserve the right to suspend or terminate your account and refuse or restrict any and all current or future use of the Company Products, without any liability to you.
You, as an Instructor, acknowledge and agree that Students have the right to receive a refund as set forth in this section. Neither Instructors nor the Company shall receive any payments, fees or commissions for any transactions for which a refund has been granted. In the event that a Student requests a refund for a Course after the Company has sent an Instructor payment for that Course, the Company reserves the right to either (1) deduct the amount of such refund from the next payment to be sent to that Instructor, or (2) require that Instructor to refund any amounts refunded to Students for Instructor's Course to the extent no additional payments are due from the Company to Instructor or such payments due Instructor are insufficient to cover the amounts refunded to Students.
The trademarks, service marks, and logos (the "Trademarks") used and displayed on the Site, in the Products or in any of the Company Content are Our registered or unregistered Trademarks or of Our suppliers or third parties and are protected pursuant to U.S. and foreign trademark laws. All rights are reserved and You may not alter or obscure the Trademarks, or link to them without Our prior approval.
11. Warranty Disclaimer.
EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT OR IN A LICENSE OR OTHER AGREEMENT GOVERNING THE USE OF SPECIFIC CONTENT, THE SERVICE IS PROVIDED TO YOU ON AN "AS IS," “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY, ALONG WITH ITS AGENTS, CONTRACTORS, LICENSORS AND VENDORS, MAKE NO CONDITIONS, REPRESENTATIONS OR WARRANTIES ON ANY KIND REGARDING THE SERVICE, ANCILLARY PRODUCT, ANCILLARY SERVICES OR SUPPORT AND SPECIFICALLY DISCLAIM ALL EXPRESS, IMPLIED BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE AND ANY OTHER STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO THOSE CONCERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT OF PROPREITARY RIGHTS. WITHOUT LIMITING THE FOREGOING, THE COMPANY, ALONG WITH ITS AGENTS, CONTRACTORS, LICENSORS AND VENDORS, DO NOT IMPLY, REPRESENT OR WARRANT THAT THE SERVICE IS FREE FROM ERROR OR BUGS, FREE FROM VIRUSES AND OTHER MALICIOUS CODE, WILL BE CONTINUOUS AND UNINTERRUPTED, OR SUITABLE FOR ANY PURPOSE, INCLUDING YOURS, OR THAT THE USE OF THE SERVICE WILL NOT INFRINGE UPON THIRD-PARTY COPYRIGHTS, PATENTS, TRADEMARKS, OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS, WHETHER ISSUED, PENDING OR CONTEMPLATED.
NOTHING IN THESE TERMS AND CONDITIONS ARE SUGGESTED TO RESTRICT THE EFFECT OF CONDITIONS OR WARRANTIES THAT MAY BE IMPLIED BY LAW BUT WHICH CANNOT BE EXCLUDED, MODIFIED OR RESTRICTED. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN THIS AGREEMENT. SPECIFICALLY, IF YOU ARE A RESIDENT OF A STATE THAT DOES NOT PERMIT THE COMPANY TO EXCLUDE IMPLIED WARRANTIES UNDER ITS APPLICABLE LAW, AND SUCH STATE WILL NOT APPLY THE LAW OF MINNESOTA TO THIS AGREEMENT, THEN THE LIMITATIONS SET FORTH IN SECTION 11 DO NOT APPLY TO YOU. NOTHING IN THIS AGREEMENT is intended to nor SHALL AFFECT THE STATUTORY RIGHTS OF A CONSUMER.
12. Limitation of Liability; Statute of Limitations.
OUR TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT IS STRICTLY LIMITED TO THE ACTUAL LOSS YOU INCUR OR THE LAST FEE YOU PAID FOR YOUR USE OF THE SERVICE OR, IN THE EVENT YOU MADE MORE THAN ONE PURCHASE WITHIN THE LAST 12 MONTHS, THEN THE SUM TOTAL OF ALL FEES YOU PAID, WHICHEVER AMOUNT IS SMALLER. YOU ACKNOWLEDGE AND AGREE THAT THE SUBSCRIPTION FEE REFLECTS THIS ALLOCATION OF RISK AND THAT THE LIMITATION SET FORTH IN THIS SECTION 12 IS AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES. THE COMPANY HAS PRICED THE SUBSCRIPTION FEE FOR USE OF THE SERVICE BASED ON THIS LIMITATION OF LIABILITY, FORMING A CRITICAL TERM OF THIS AGREEMENT ON WHICH THE COMPANY HAS REASONABLY RELIED IN AGREEING TO MAKE THE SERVICE AVAILABLE TO YOU.
THE COMPANY SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD-PARTY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR THE SERVICE NOT BEING AVAILABLE FOR USE, LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOST OR CORRUPTED DATA OR DOCUMENTS, THE COST OF REPLACING LOST OR CORRUPTED DATA OR DOCUMENTS, THE COST OF PROCURING SUBSTITUTE SERVICE OR THE PROVISION OF ANCILLARY SERVICES AND SUPPORT. THE COMPANY SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES, WHETHER SUCH CLAIM IS BASED ON CONTRACT, TORT – INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABLITY – OR OTHER LEGAL OR EQUITABLE THEORY OF RELIEF, RESULTING FROM ANY USE OF THE SERVICE OR OF ANY HYPERLINKED WEBSITE, OR THE CONTENTS THEREOF, OR THE INABILITY TO USE THE SERVICE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION OR CLAIM ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THE SERVICE MUST BE COMMENCED BY THE PARTIES WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION OR CLAIM ACCRUES, REGARDLESS OF ANY LAW OR STATUTE TO THE CONTRARY.
You hereby indemnify, defend and hold harmless the Company, and its affiliates, officers, directors, agents, partners, employees, licensors, representatives and third party providers from and against all reasonably foreseeable losses, expenses, damages, costs, claims and demands, including reasonable attorneys' fees and related costs and expenses, due to or arising out of Your breach of any representation or warranty hereunder. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You under this Section 13, and in such case, You agree to fully cooperate as reasonably required with such defense and in asserting any available defenses.
We may terminate Your use of the Site or Products immediately without notice for any breach by You of this Agreement or any of Our applicable policies, as posted on the Site from time to time. We may discontinue offering any Product, Course, or Content at any time (which will terminate Your right to offer these Courses if You are an Instructor). You may terminate Your use of the Site or the Products at any time, either by ceasing to access them, or by contacting us at www.lilasophy.com/contact (but if You are an Instructor then Students enrolled in Your Courses prior to termination shall continue to have access to them for the duration of the Course). We have no obligation to retain any of Your Account or Submitted Content for any period of time beyond what may be required by applicable law. Upon termination, You must cease all use of the Site, Products and Content. Any accrued rights to payment and Sections 4, 5, 10-15 and all representations and warranties shall survive termination.
15. Electronic Notices.
By using the Products or communicating with the Company, You agree that We may communicate with You electronically regarding security, privacy, and administrative issues relating to Your use of the Products or this Agreement. If the Company learns of a security system's breach, We may attempt to notify You electronically by posting a notice on the Products or sending an email to You. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to Us at www.lilasophy.com/contact.
(a) Entire Agreement.
This Agreement and any policies applicable to You posted on the Site constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter.
If any provision of this Agreement is found to be illegal, void or unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions of this Agreement.
A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of the Company to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
Any notice or other communication to be given hereunder will be in writing and given by facsimile, postpaid registered or certified mail return receipt requested, or electronic mail.
(e) No Agency.
Nothing in this Agreement shall be construed as making either party the partner, joint venture, agent, legal representative, employer, contractor or employee of the other. Neither the Company nor any other party to this Agreement shall have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action that shall be binding on the other except as provided for herein or authorized in writing by the party to be bound.
(f) Governing Law; Personal Jurisdiction.
You agree that the terms and conditions of this Agreement, any sales thereunder, and any claim, dispute or controversy of any kind or nature whatsoever – whether in contract, tort or otherwise, whether preexisting, present or future, and including common law, equitable and statutory claims between You and the Company, arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, shall be governed by and construed in accordance with the laws of the United States and by the laws of the State of Minnesota, whichever is applicable, without regard to conflict of laws principles. You agree to the personal jurisdiction by and venue in the state and federal courts in Hennepin County, Minnesota, and waive any objection to such jurisdiction or venue. The preceding provision regarding venue does not apply if you are a consumer based in the European Union. If you are a consumer based in the European Union, you may make a claim in the courts of the country where you reside.