ISSUED: NOVEMBER 1, 2018
1. WELCOME TO LOUPE™
LOUPE™ is a subscription service provided by Scout Interactive, LLC (““we”, “us”, “our”) that functions through the use of our proprietary App. When you download and install the App on your mobile or wireless device (“device”), the App enables you to easily index, archive, store and retrieve images, videos and audio-visual content captured, received or held on your device (“Content”). At this time, to be a LOUPE subscriber, you must be at least 18 years of age and a permanent, legal resident of one of the 50 United States.
In order to access our LOUPE Service and use the features and functions of our App, you will have to download and install the App on your device, register with LOUPE and become a subscriber to our service. To install a copy of our App, your device must meet certain hardware, operating system and connectivity requirements. Not all devices or operating systems are compatible with our App and currently the App only works with iOS operating system version 10 or higher. The LOUPE App requires you to have access to the Internet in order to operate properly and you are responsible for maintaining a connection and access to the Internet and for all charges and fees you incur and/or are imposed in the separate account you have (or the device owner has) with the mobile carrier, wireless or other service provider you use. You will need to make sure your device (or other digital imaging equipment) is capable of scanning and reading QR codes (Quick Response Codes). The App includes a QR scanner, but you can also separately download, install and use any third party QR scanner you prefer.
2. REGISTERING & BECOMING A LOUPE™ SUBSCRIBER
To use the App, you will need to register and become a subscriber to our LOUPE Service. During registration you will be required to provide us with your contact information, which includes, but is not necessarily limited to, the number or other unique identifier of the device on which the App is installed, your email and physical address and your payment information. It is your obligation to make sure you provide us accurate, complete and current information when you register and keep that information up to date any and every time there is a change. By registering, you will become a subscriber to LOUPE and during the registration process you will be asked to create a password that only you know. The unique combination of your email address and password will be referred to as your “user ID”. The user ID allows you to access and use the App and our LOUPE subscription service.
Once you have successfully registered, we grant you a limited, non-exclusive, non-transferable, revocable right and license, to use our App on your device so you can access and use the features and functions of LOUPE, subject to the terms of this Agreement. Without limiting any other provision of this Agreement, you may only use the App and LOUPE for your own personal, non-commercial use and you may not copy, sell, sub-license, reproduce, transfer, transmit, duplicate, distribute, alter, modify, reverse-engineer, adapt, translate or create derivative works of or from our App, nor do you have a right to use our App for any commercial purposes, without express prior written authorization from an officer of Scout Interactive, LLC.
You are solely responsible for the confidentiality of your password and you agree not to share, disclose or give it to anyone else. If you suspect your password has been compromised, change your password immediately and contact us by email at email@example.com
YOU ACKNOWLEDGE AND AGREE THAT YOU, NOT US, ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES, TRANSACTIONS OR ACTIONS THAT OCCUR UNDER YOUR USER ID, WHETHER YOU AUTHORIZED THEM OR NOT AND EVEN IF YOU WERE UNAWARE OF THEM.
If you switch mobile devices to another App compatible device, you will be able to transfer your right to use the App, but you will have to download and install the App on your new device and enter your user ID so we can recognize you as a registered LOUPE subscriber and permitted user.
3. USING THE LOUPE APP, LOUPE ALBUMS & YOUR LOUPE SUBSCRIPTION
The App allows you to select content on your device (“LOUPE Content”) which is then encoded and uploaded to the cloud storage facility we make available to LOUPE subscribers (the “cloud”). The App creates a uniquely coded identifier for each item of LOUPE Content (a “code”). If the content you select is a video, the App will also display an icon or other distinctive symbol to identify it so you can distinguish between video and still images. Each code uniquely corresponds to a particular item of LOUPE content that will allow you to identify and retrieve the corresponding, original digital file of your LOUPE Content.
The use of our App and the LOUPE Service does not delete, alter or remove any content on your device. The App creates a duplicate, which is processed through our App as described in this Agreement. We strongly recommend that you keep back-up copies of all your content , and specifically your LOUPE Content.
After you begin using our App to select, encode and upload LOUPE Content to the cloud, we will begin creating sets of pages (a “LOUPE Album”) containing thumbnail images of your LOUPE Content (each, a “Thumbnail”). The code will be displayed in a section of each Thumbnail which typically does not contain major photographic elements, but as you appreciate, you, not us, are in control of the images and videos you capture and select, and we cannot know or guarantee if a particular element in the Thumbnail may be obscured by the code.
Each month, on or about the day of the month you became a subscriber, we will charge you the monthly fee and charges applicable to your subscription (See Section 4: PAYMENT below) which allows you to upload up to 400 photos or videos (“Monthly LOUPE Content”) each month. The allocation of LOUPE Content is not cumulative and does not roll over from month to month – it’s a fixed allotment of up to 400 photos or videos each monthly period.
As a general rule, at some point between two and twenty days after your Monthly LOUPE Content is uploaded, we will print and send you a LOUPE Album containing the complete set of Thumbnails of the Monthly LOUPE Content you uploaded during the preceding monthly period. If we are able to do so, we will try to accommodate your request to send you your LOUPE Album on or about any specific day within that time period but we cannot guarantee we will do so. We will continue sending your LOUPE Albums each month thereafter for as long as you maintain your LOUPE subscription in good standing. After approximately three months we will offer you the option, at a discounted subscription rate, to have your LOUPE Album sent to you as a PDF, which you can print or store digitally. If you elect to exercise that option, you will always have the right to notify us that you would prefer to go back to having the printed, hard copy LOUPE Album sent to you and we will be happy to process your request and start doing so at the current rates that apply to our standard LOUPE subscription at the time of your request. If you wish to discontinue uploading LOUPE Content, but want to continue to store your previously uploaded LOUPE Content in our cloud and retain the ability to retrieve that LOUPE Content, we may offer that service at a reduced monthly charge and you should contact us to find out if we do and how you can take advantage of that service offering. To find out more or if you have any questions about your subscription to the LOUPE Service you can contact us at firstname.lastname@example.org.
To retrieve any original digital image or video file of any item of LOUPE Content or multiple items you select, simply scan the QR code of the Thumbnails you want to retrieve with your QR code reader and the reader should automatically direct your device’s web browser to the unique location where the original LOUPE Content corresponding to the code(s) are stored. The LOUPE Content will remain stored in the cloud, the LOUPE App and our system allows you to retrieve, display and download a copy any time.
The App and your LOUPE subscription have been designed to allow you to select, upload and retrieve your LOUPE Content from your compatible device, but you acknowledge and agree that your ability to use the App and your ability to upload, access and retrieve your LOUPE Content may vary by device, equipment, programs, software and transmission resources and differences may limit or affect how the App functions and your ability to access your LOUPE Content in a specific manner or retrieval speed or capability.
You bear all risk of physical loss or damage to each LOUPE Album we send you, once we deliver the LOUPE Album to our carrier for delivery. We will, for an additional charge, reproduce and re-send a LOUPE Album, if you request us to do so. If you are not satisfied with the App, your LOUPE Album or any aspect of the LOUPE Service, your sole and exclusive remedy is to obtain a reprint (or in our sole discretion, receive a credit), you may also stop using the App and terminate your subscription to the LOUPE Service at any time. If you request a reprint or we grant you a credit more than once in any twelve (12) month period, we may also terminate your subscription and right to use the App on thirty days’ notice.
The standard monthly subscription fee is ten dollars ($10), which includes unlimited use of the App on a single mobile or wireless device on which you are the account holder or an authorized user, cloud storage for your LOUPE Content, creation, production and shipment of your monthly LOUPE Album and unlimited retrieval rights for your LOUPE Content. As we mentioned above, if we offer you the option to discontinue receiving a printed copy of your LOUPE Album each month, the monthly subscription fee will be reduced to nine dollars ($9). You always have the option to notify us that you want to go back to receiving a printed LOUPE Album and when you do, you will again be charged the standard (unreduced) monthly subscription fee.
Your LOUPE subscription will continue month to month unless and until you cancel your subscription, or we terminate your subscription as permitted. As part of the registration process, you must provide us with a current, valid, accepted method of payment (“Payment Method”) for your continuing right to use the App and all the LOUPE Services associated with your subscription. You must maintain your Payment Method in good standing and available to pay us the monthly subscription fee or provide us with an alternate, current, valid accepted method of payment as a replacement.
We will automatically bill the monthly subscription fee to your Payment Method each month in advance on either the 28th day of each calendar month or the date your subscription to LOUPE started, whichever is earlier and that will be your “monthly billing date”. If we are unsuccessful in obtaining your monthly subscription fee using your Payment Method, in addition to the right to suspend your subscription, your right to use the App and LOUPE until payment is received or terminate your subscription, right to use the App and LOUPE if you don’t remedy any non-payment within 30 days, we may change your monthly billing date. If we encounter any problems in obtaining payment from you, we will attempt to contact you using the contact information you have provided to us. Of course, you can contact us any time with questions about your billing at email@example.com.
LOUPE subscription fees are fully earned when payment is made and payments are nonrefundable. We do not, and we have no obligation to, provide refunds or credits for any reason, including, without limitation, partially used subscriptions or if you choose not to use the App or our LOUPE Service. If we do choose, for any reason to provide a refund, discount, credits or any other value or consideration, that decision is within our sole and absolute discretion and does not obligate us to do so in the future, to you, any other party, whether in similar circumstances of any circumstances.
YOU REPRESENT AND WARRANT TO US YOU HAVE THE LEGAL RIGHT AND AUTHORITY TO USE ANY CHARGE, DEBIT OR CREDIT CARD OR PAYMENT INSTRUMENT OR MECHANISM, INCLUDING THE MECHANISMS USED TO INITIATE ANY TRANSACTION. We may require you to verify your payment or other information prior to us accepting any subscription or other order from you. You agree to pay all charges incurred by you or any activity or transactions under your user ID. If, at any time, there are taxes that are applicable to your use of our App, the LOUPE Service or any other service or product we offer or make available, you are responsible for paying those taxes.
We reserve the right to change the price for our LOUPE Service at any time and from time to time and will let you know at least thirty days in advance of any price changes that will affect you. We may also charge for additional LOUPE content storage in the cloud or change the method by which we charge fees and prices at any time and from time to time and we will notify of these changes at least thirty days in advance as well. Once we notify you, the new prices and/or pricing methods will take effect on the date stated in our notification to you. If you continue to use our App, the LOUPE Service and upload LOUPE Content after the effective date of any such change, you will be deemed to have accepted and agree to the changes, including, without limitation, pricing and pricing methods.
You may cancel and terminate your LOUPE subscription at any time by notifying us of your desire to do so at least ten (10) days prior to your next monthly billing date and termination will take effect on the day after we create and send you your next regular LOUPE Album after we receive your notice. You will remain obligated to pay the monthly subscription fee up to the effective date of termination. Assuming your subscription was in good standing with no outstanding payments due to us on the effective date of termination, usually within ten business days after your subscription is terminated, we will send you a hypertext link in an email that will allow you to download and retrieve your LOUPE Content. If you are unable, unwilling or fail to access the hypertext link we send you and download your LOUPE Content, for any reason prior to before the expiration 30 days from the date we send you the email with the hypertext link noted above, we cannot guarantee your LOUPE Content will be available and at that point we have the right to delete your LOUPE Content from the cloud (and anywhere else within our system or under our control), we will have no further obligation to store or maintain or allow you to retrieve content and we will have no obligation or liability to you or any other party thereafter with respect to your LOUPE Content, your subscription to LOUPE, the App or any other basis arising from this Agreement or your relationship with us.
If you or we terminate or suspend your LOUPE subscription, your right and license to use the App will also automatically be revoked and terminated until such time, if ever, that your LOUPE subscription is restored by us to good standing.
5. KEEP IT GOING; KEEP IT SAFE
We will make reasonable efforts to keep the App and LOUPE Service available and operational, but technical difficulties, maintenance, as well as circumstances beyond our control, may cause interruptions from time to time. We must reserve the right, at any time and from time to time, to suspend your use of the App, with or without notice and without liability to you, for any interruption, modification, or discontinuation of the availability or use of the App or the LOUPE Service. By continuing to use the App, you acknowledge and agree we have the right, without notice or any prompts, to update the App and/or any features or functions of the LOUPE Service, however you understand and agree we have no obligation to do so.
We use reasonable commercial efforts to store your content securely and prevent your content from being altered or destroyed, but as with all visual and audio-visual content and Internet connections, the display and reproduction of your content is subject to variations based on the transmission, recording, display and playback capabilities of your device, the printers and other hardware and software you may use, as well as the quality and speed of your Internet connections. As a result, we cannot guarantee your content will always be displayed, printed or reproduced accurately.
We also take no responsibility, do not warrant and cannot be held liable for the performance of your devices, the compatibility of your device with our App or the affect any third-party software, programs or other items you may have on or use with your device, our App and/or the LOUPE Service. If your device is lost or stolen, is sold or you are concerned it may be in the hands of any unauthorized user, please notify us immediately. Remember, until you notify us, you remain responsible for the monthly subscription fees and any activity or actions that occur under your user ID.
The App and LOUPE Service are intended to allow you to store and retrieve your LOUPE Content safely, in an easy to use, user-friendly manner. While we can’t always guarantee the reliability and integrity of technology, we keep trying to improve and we want your experience to be positive. Although no list or even any agreement, including this one, could possibly cover everything, when using our App and LOUPE Service, you are explicitly agreeing not to:
Knowingly transmit any software, code or other material (tangible or intangible) that contains malicious, destructive or disruptive code or capability to do harm or damage (e.g., viruses, worms, trojan horses, malware) or otherwise interfere or disrupt or attempt to interfere or disrupt the intended, normal functioning and operation of the App or the LOUPE Service;
Violate or infringe any proprietary rights, rights of privacy or publicity or other rights of anyone else;
Restrict, prevent or impair any user of our App or subscriber to the LOUPE Service from using our App or the LOUPE Service in any manner;
Use the App or LOUPE Service to upload or transmit any content or material or behave in any manner that: (a) infringes or violates our rights or the rights of any other party, including any trademark, copyright or other proprietary right; (b) is illegal, fraudulent, threatening, abusive, harassing, discriminatory, libelous, defamatory, inciteful, obscene or pornographic or that we believe, in our sole judgment and discretion, advocates any unlawful activity or is offensive, inappropriate or objectionable; (c) violates any obligation of confidentiality or secrecy; (d) would constitute or be considered an advertisement, solicitations, promotion, inducement or investment opportunity of any kind or any other commercial activity, including the sale or offering to provide goods or services to others; (e) is done without the permission of a person, firm or enterprise whose approval, permission or authorization would be required to do so; or (f) is in breach of this Agreement;
Retrieve LOUPE content of any other subscriber, user or anyone else or alter, erase or destroy LOUPE content of anyone else, whether by “hacking” their account, our systems or otherwise or attempting to do any of these things;
Impersonate anyone else, deceive, defraud or mislead us or anyone else, including, but without limitation, by providing false, inaccurate or incomplete information; or
Blur, alter or remove any notices (e.g., copyright, trademark or other proprietary rights) displayed in or displayed on any portion of our App or modify, alter, adapt, translate, distribute, reverse engineer, decompile or disassemble any portion of our App.
You agree we may (but are not obligated or required) filter, edit or delete any LOUPE Content and/or refuse accept for storage or retrieval or ship as part of the LOUPE Service or a LOUPE Album, any LOUPE Content or any other material that is in violation of the terms and conditions of this Agreement. If we exercise any of our rights, including, without limitation, filtering, editing or deleting of your LOUPE Content, we have no obligation, responsibility or liability to you for exercising any or all our rights.
If you fail to comply with our requirements or you breach any of the terms and conditions of this Agreement, without limiting any of our rights or remedies, we may terminate your access to and use of our App and the LOUPE Service without notice and without liability or obligation to you. We also reserve the right to notify law enforcement and government agencies of any activity we suspect to be in violation of any law or regulation and we may take such action as we deem necessary and/or appropriate to protect our App, LOUPE Services and our rights, the rights of other LOUPE subscribers or any other parties.
6. WHO OWNS WHAT
LOUPE™ is a service mark of Scout Interactive, LLC and our App and the LOUPE Service are protected by copyright, trade secret, provisional or pending U.S. patent applications and international treaties, if and where applicable. All rights reserved. The LOUPE™ brand, any trade names, trademarks, service marks, logos and distinctive designs associated with our App and LOUPE, including, without limitation, user interfaces, design elements, structure, formats and sequencing, are owned by us, whether or not they are registered and you may not use them in any manner that is in violation of the law or is likely to cause confusion with any other product or service. You should not construe the fact that we are granting you any right or license to use our App or access and use our LOUPE Service as a grant or transfer of any other rights or licenses to any intellectual property – it does not! If your LOUPE subscription is terminated or suspended for any reason, your right and license to use the App will also terminate or be suspended.
You have a right and limited license to use the App for your own personal, non-commercial use on your device solely in association with the LOUPE Service, but we retain ownership of the App and all programming code, intellectual and other property, tangible or intangible, even when it is installed on your device. You don’t have any right to transfer, assign or sub-license the App or any of your rights under this Agreement to any other party. If you do, or attempt to do so, or we have reason to believe you are in violation of any of the terms or conditions in this Agreement or are engaged in illegal or improper use of the App or the LOUPE Service. We may terminate, suspend or restrict your use of the App and the LOUPE Service without any compensation or consideration to you.
You retain ownership of all of your content, including LOUPE content, but we own and retain ownership of our App, all coding, encoding, codes, tags, icons and any and all other material added or included by our App or the LOUPE Service, whether visible, machine readable or otherwise (and we will refer to these as “our “IP” for simplicity). To the extent necessary to use our App and the LOUPE Service, the limited license granted to you by us to use the App includes the right to use our IP in order to enable you to upload, identify, distinguish and retrieve your LOUPE content. We also retain ownership and proprietary rights to any sequences, layouts, formats or templates which the LOUPE Service provided or allows you to configure.
By using our App and the LOUPE Service, you are granting us non-exclusive, royalty-free right and license to reproduce, transmit, re-format, adapt, create derivative works, display and distribute your LOUPE content solely in connection with the production of a LOUPE Album and/or for the proper operation of our App and the availability and provision to you of the LOUPE Service. The rights you are granting us will also apply if we give you the opportunity to acquire or order additional services from us, whether for an additional charge or no charge, including sharing or making available your LOUPE Albums and/or LOUPE content with family, friends and others.
You represent and warrant to us that you own or possess all of the rights that are necessary rights regarding your content to use the App and the LOUPE Service and nothing that you do (or fail to do) will impair, interfere with or infringe on our rights to continue to provide the App and LOUPE Service free of any claims, actions, demands or encumbrances arising from you or anyone claiming under or through you. It is your responsibility to know and comply with all Federal, state, local and other laws and that apply to your use of the App, LOUPE Service, your subscription to LOUPE and payments you agree to make to us and you agree that if we have a good faith belief that you are violating or not complying with any of our terms and conditions, we have the right, with or without notice, to refuse to provide or continue to provide you with use of our App, the LOUPE Service or any service or product.
7. RESPECT FOR COPYRIGHTS
While we have no obligation to review your LOUPE content, we have a commitment to protect copyrights and we expect users of our App and subscribers to our LOUPE Service to do the same. The Digital Millennium Copyright Act of 1998 (“DMCA”) gives copyright owners who believe their rights under U.S. copyright law are being infringed, certain rights. If you have a good faith belief that any material used or displayed on or through use of our App infringes your copyright, you or your agent or legal representative can send us a notice asking that we block access to infringing material or have it removed. The DMCA requires that your notice (a “DMCA Notice”) include the following: (a) a physical or electronic signature of yours or someone authorized to act on the copyright owner’s behalf; (b) a clear identification of the copyrighted work or the subject or item claimed to have been infringed (or a list or accurate description if there are many images or videos involved) reasonably sufficient to enable us to locate the material; (c) the name, address, telephone number and, if available, the email address of the party complaining; (d) an affirmative statement the complaining party has a good faith belief that use of the material is not authorized by the copyright owner or rights holder (or an authorized agent) or otherwise legally permitted by law; and (e) an affirmative statement that the information in the notice is accurate and, under penalty of perjury, the complaining party is authorized to act on behalf of the owner or rights holder of an exclusive right allegedly infringed.
If you or your LOUPE content are the target of such a notice and you have a good faith belief that a DMCA Notice has been wrongly filed against you, the DMCA permits you to send us a counter-notice. In all cases, DMCA Notices and counter-notices must meet the current statutory requirements of the DMCA to be effective and you should check http://www.copyright.gov for current information. DMCA Notices and counter-notices should be sent to:
- Scout Interactive, LLC
- Attn: Legal
- Email: firstname.lastname@example.org
8. PROMOTIONS; TRIAL PERIODS
We may offer promotions or trials of our App, the LOUPE Service or other services we may offer from time to time and we will advise you of any restrictions, terms or conditions that apply, and which will be and are incorporated into this Agreement. If we offer you a trial period to try out our App and our LOUPE Service without charge, once the trial period ends we may automatically start to charge you the current LOUPE subscription fee on a recurring basis as mentioned above, immediately on the day after the trial period ends. You agree to these charges and you also acknowledge, understand and agree you will not receive a notice from us that your trial period has ended or your paid LOUPE subscription has started. It is your obligation to cancel your LOUPE subscription by contacting us if you do not want to continue your LOUPE subscription and do now want to incur these charges. You must contact us at email@example.com at least one (1) business day prior to the end of your trial period to avoid incurring any monthly or other charges.
9. DISCLAIMER OF REPRESENTATIONS & WARRANTIES
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, OUR APP, THE LOUPE SERVICE AND ANY AND ALL OTHER SERVICES AND/OR PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS AND TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SCOUT INTERACTIVE, LLC, ITS MANAGERS, MEMBERS, DIRECTORS, OFFICERS, OWNERS, EMPLOYEES, SUPPLIERS, SERVICE PROVIDERS, CONTRACTORS, AGENTS, REPRESENTATIVES AND, IF ANY, ANY AFFILIATES OF SCOUT INTERACTIVE, LLC (INDIVIDUALLY AND COLLECTIVELY, THE “LOUPE PARTIES”), DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, RELATING TO OR ASSOCIATED WITH OUR APP, THE LOUPE SERVICE AND ANY AND ALL OTHER SERVICES AND/OR PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
IMPORTANT NOTE: SOME STATES OR JURISDICTIONS MAY NOT ALLOW EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
10. LIMITATION OF LIABILITY; INDEMNITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER NONE OF THE LOUPE PARTIES SHALL BE LIABLE TO YOU OR ANY OTHER PARTY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOST PROFITS, USE OR DATA), WHETHER BASED ON WARRANTY, CONTRACT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT FORESEEABLE AND EVEN IF ANY OF THE LOUPE PARTIES KNEW OR WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOUR SOLE AND EXCLUSIVE REMEDY IF YOU ARE DISSATISFIED WITH OUR APP, LOUPE SERVICE OR LOUPE ALBUM OR ANY SERVICES WE MAY PROVIDE IS TO STOP USING THE APP AND CANCEL YOUR SUBSCRIPTION TO THE LOUPE SERVICES. NOTWITHSTANDING THE FACT WE MAY PROVIDE OR SPECIFICALLY IDENTIFY A REMEDY YOU MAY HAVE UNDER THIS AGREEMENT, IF ANY SUCH REMEDY IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, YOU ACKNOWLEDGE AND SPECIFICALLY AGREE NONE OF THE LOUPE PARTIES SHALL BE LIABLE TO YOU OR ANY OTHER PARTY, FOR ANY CONDUCT OF OTHER USERS OF OUR APP, SUBSCRIBERS TO OUR LOUPE SERVICE OR OTHER THIRD PARTIES.
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE MAXIMUM LIABILITY OF THE LOUPE PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, OUR APP, THE LOUPE SERVICE, LOUPE ALBUMS OR OTHERWISE SHALL LIMITED TO THE LESSER OF (A) ACTUAL PROVABLE AND QUANITIFABLE DIRECT DAMAGES, OR (B) THE SUBSCRIPTION FEES OR OTHER CHARGES PAID BY YOU FOR THE THREE (3) MONTHS PRECEDING THE DATE THAT THE CAUSE OFACTION FIRST AROSE, OF (C) ONE HUNDRED DOLLARS (US$100).
IMPORTANT NOTE: SOME STATES OR JURISDICTIONS MAY NOT ALLOW EXCLUSIONS OR LIMITATIONS OF INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY AND HOLD EACH AND EVERY ONE OF THE LOUPE PARTIES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, LOSSES, EXPENSES AND COSTS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) THAT ARISE OR RESULT, DIRECTLY OR INDIRECTLY, FROM ANY AND ALL CLAIMS, DEMANDS, THREATS, ACTIONS, CAUSES OF ACTION BASED ON YOUR ACTUAL OR ALLEGED: (1) BREACH OF ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE INFORMATION YOU PROVIDE, YOUR LOUPE CONTENT AND/OR ANY REPRESENTATION YOU HAVE MADE TO US; (2) VIOLATION OF ANY LAW OR REGULATION; (3) INFRINGEMENT OR MISAPPROPRIATION OF THE RIGHTS OF ANY OTHER PARTY, OR (3) YOUR PAYMENT TRANSACTIONS OR OTHER ACTIVITIES RELATED TO YOUR USE OF THE APP, OR (4) ANY ACCESS, USE, ACTIVITY OR TRANSACTIONS USING YOUR USER ID, EVEN IF BY ANOTHER PERSON WITH OR WITHOUT YOUR AUTHORIZATION.
We reserve the right to terminate, discontinue, suspend or restrict your access to and use of our App, your LOUPE subscription and LOUPE Service, with or without notice, for any reason or no reason, at any time and from time to time. Upon termination, cancellation or suspension for any reason, your right to access and license to use our App and your access to the LOUPE Service, except as specifically provided in this Agreement, will terminate.
12. DON’T SEND US YOUR BRIGHT IDEAS
We don’t solicit or request ideas or suggestions from users of our App or the LOUPE Service, but we always do appreciate it when anyone has an interest in improving our App or the LOUPE Service. If you send us an unsolicited idea or suggestion, whether for a new feature, an improvement or anything at all, you are not only acknowledging you have no claim or rights to it, but you are specifically representing to us that they are original and exclusively yours and you are agreeing that all right, title and interest (including, without limitation, all intellectual property and other proprietary rights) in and to these ideas and suggestions are irrevocably assigned, transferred and conveyed to us. If, for any reason, you intend to retain or reserve any rights to ideas or suggestions you wish to submit to us (e.g., patent, copyright, trademark, etc.), you must obtain our approval in writing and in advance of sending them to us. If you are interested in finding out more, you should send us a letter that describes the subject of your idea or suggestion in general, non-proprietary and non-confidential terms, but DO NOT disclose the specifics of your idea or suggestion because if you do, the above terms and conditions assigning your rights to us will apply. Send your inquiries to Scout Interactive, LLC, PO Box 66429, Los Angeles, CA 90066 Attn: LOUPE Idea Submissions. If we are interested, we will contact you and we may require you to sign a separate legal agreement before we decide to consider or evaluate your idea or suggestion.
13. NOTICE FOR CALIFORNIA USERS
This notice is for our California users and subscribers: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
14. JURISDICTIONAL ISSUES
Our App and the LOUPE Service are operated from and made available within the fifty United States and are not intended for use, not offered or made available and may not be used outside the fifty United States. We may limit the availability of our App and LOUPE Services, in whole or in part, at any time and from time to time, in our sole discretion, to any person or legal entity, region or geographic area or jurisdiction we choose. We do not represent or warrant that our App, LOUPE Service or any services or products is or are suitable or fit for any purposes and your choice and decision to use the App and subscribe to the LOUPE Service is solely yours and you do so at your own risk.
15. ARBITRATING DISPUTES; CLASS ACTION WAIVER
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
ANY DISPUTE UNDER THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, NOT BY A COURT. YOU AGREE YOU MAY ONLY BRING CLAIMS AGAINST US IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You agree any claim, dispute or controversy relating to our App, your subscription to the LOUPE Service, LOUPE Albums or otherwise under this Agreement, shall be determined by binding arbitration and not through a claim or action in any court or judicial forum. Arbitration has more limited discovery than court proceedings, uses a neutral arbitrator not of a judge or jury, and is more informal, although that doesn’t always mean it’s less costly. Arbitrators can award the same damages and relief a court can award, but you should understand that an arbitrator’s decision is subject to very limited review by courts.
In the context of the above agreement, you are also agreeing that the interpretation and enforcement of this clause is subject to the U.S. Federal Arbitration Act and both you and we are WAIVING OUR RIGHT TO TRIAL BY JURY. You are also agreeing that you may only bring a claim or action against us in your individual capacity and NOT as a plaintiff or member of any class or class action, and you are agreeing that you will NOT participate or cooperate with any class action brought against us, unless you are compelled to do so by operation of law. You and we further agree this provision will survive any cancellation or termination of your use of our App or your subscription to the LOUPE Service.
If you choose to initiate an arbitration proceeding against us, you must first send us, by certified mail, a written notice of your claim (“Claim Notice”). The Claim Notice to us must be addressed to Scout Interactive, LLC, PO Box 66429, Los Angeles, CA 90066 Attn: LOUPE Claim Notice, and include your name, address, the number of your device associated with the use of our App and, if applicable, the email address associated with your subscription to the LOUPE Service. You Claim Notice must also describe your claim or dispute with reasonable specificity, so we can investigate your allegations and your Claim Notice should also clearly set forth what relief or remedy you are seeking (your “Demand”). We will investigate the allegations in your Claim Notice and if we are unable to reach a resolution with you within forty (40) days of our receipt of your Claim Notice, either you or we may commence arbitration proceedings. Each party will be responsible for its own costs and expenses related to any arbitration proceedings, unless otherwise ordered by the decision of the arbitrator.
Arbitration under this Agreement will be conducted by the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (“CRD Rules”) and administered by the AAA. The CRD Rules and forms are available online at www.adr.org, or you can call the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement and has the sole right and authority to decide all issues raised, including any dispute over the scope and enforceability of this agreement to arbitrate. The arbitrator may only make an award in favor of the party (you or us) seeking relief and only to the extent necessary to provide relief warranted by that party’s claim.
Unless we mutually agree otherwise, arbitration hearings will take place in the county in which you have your primary legal residence, however, if your claim is for less than ten thousand dollars (US$10,000), you agree that we may and have the sole right to choose and elect to conduct the arbitration solely on the basis of documents and materials submitted to the arbitrator or through a telephonic hearing or by an in-person hearing as permitted by the AAA Rules or any combination of these methods. If your claim is over ten thousand dollars (US$10,000), the right to a hearing will be determined by the AAA Rules.
The arbitrator shall issue a written decision with sufficient reasoning and basis to explain the material findings and conclusions on which the decision is based. If we previously made you a settlement offer and the arbitrator issues you an award less than the value of our last settlement offer (which we made before an arbitrator was selected) you will be responsible for our legal fees, costs and expense we incur after the date on which you received our last settlement offer. Except as expressly set forth in this Agreement, the CRD Rules will govern the payment of filing, administration and arbitrator fees.
So there is no ambiguity, unless you and we agree otherwise in writing, the arbitrator may not consolidate or aggregate any one or more other individual claims with your claim or claims, nor may the arbitrator preside over or participate in any form of representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
This Agreement shall be governed by, construed and enforced under the laws of the State of California, without regard to any conflicts of law principles that would cause the application of any other laws or regulations. To the extent any court or judicial proceedings may be involved, you hereby submit to the exclusive jurisdiction of the State and/or Federal courts in the County and City of Los Angeles, California and you waive any right to claim or plead any objection that this is an inconvenient or inappropriate forum.
If any provision or the effect of any provision is held by a court of competent jurisdiction to invalid or unenforceable for any reason, that provision will be deemed ineffective as written, but shall be enforced to the maximum extent possible, or, if that is not possible, then deleted from this Agreement, with the remaining provisions unaffected and in full force and effect.
No failure or delay by either party to exercise any right or option, pursue any remedy or enforce any term or condition of this Agreement, shall constitute, nor shall be construed as, a waiver of that or any other right or option or right to enforce that or any other provision, at that time or in future.
You may not assign, transfer or delegate this Agreement or any terms or conditions hereof, in whole or in part, at any time and any attempt to do so shall be void ab initio.
We reserve the right to modify this Agreement by posting a revised version, and if you are a subscriber and anything major changes, we will notify you using the most recent contact information you gave us. YOUR CONTINUED USE of our APP and/or the LOUPE Service AFTER we post or notify you of ANY MODIFICATIONS WILL CONSTITUTE YOUR ACCEPTANCE of the modifications. It is important you keep your registration information current and you are responsible for doing so any time your information changes.
Except as mentioned in this Agreement, it may not be modified or amended. The headings and section titles are for convenience only and have no effect or bearing on meaning or interpretation.
This is the entire agreement between you and us regarding the App, the LOUPE Service, LOUPE Albums and all other subject matter covered in this Agreement and supersedes any and all prior, contemporaneous and/or inconsistent representations, statements, agreements, understandings and arrangements, whether written or oral, between us. If you have any questions or comments regarding this Agreement, please contact: firstname.lastname@example.org.