Terms and Conditions ("Terms")
Last updated: April 4th, 2019
Please read these Terms and Conditions ("Terms", "Terms and Conditions") carefully before using the illumenotes.com website and/or the illumenotes.com mobile application (such mobile application, the “App” and the App and/or website together, or individually, the "Service") operated by the Lovenotes Company ("us", "we", or "our").
Please read these Terms carefully, as they (among other things) provide that you and us will arbitrate certain claims instead of going to court and that you will not bring class action claims against us Please only create a Service account or otherwise use the Service if you agree to be legally bound by all terms and conditions herein. If you are viewing this on your mobile device, you can also view these Terms via a web browser at https://illumenotes.com/terms. Your acceptance of these Terms creates a legally binding contract between you and the Company. If you do not agree with any aspect of these Terms, then do not create a Service account or otherwise use the Service.
Note for Children. Use of the Service by anyone under the age of 18 is prohibited. By using the Service, you represent and warrant that you are at least 18 years of age.
The Service allows for users to upload content that may be viewed by other users. As further described below, inappropriate content, including without limitation content that is obscene, pornographic or defamatory, is not allowed and is subject to removal. If you see any prohibited content within the Service, please notify us. Users who upload prohibited content may have their accounts terminated.
By creating an Account on the Service, you automatically subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
Our Service allows you to post, link, store, share and otherwise make available certain information, text or other material ("Content") on the Service. You are responsible for the Content that you post on or through the Service, including its legality, reliability, and appropriateness. You acknowledge that all posted Media is stored on and made available through the Service by the Company’s servers and not on your device. We reserve the right at anytime to disclose the identity of the sender of a note if we determine in our sole discretion that it violates these Terms or our applicable policies. You understand that all Content is provided to you through the Service only on an “as-available” basis and we do not guarantee that the availability of Content will be uninterrupted or bug free. You agree you are responsible for all of your Content and all activities that occur under your user account.
By posting Content on or through the Service, You represent and warrant that: (i) the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, and (ii) that the posting of your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the account of anyone found to be infringing on a copyright or violating any of the foregoing representations.
In connection with your Content, you further agree that you will not: (i) use material that is subject to third party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) use material that is unlawful, defamatory, libelous, threatening, pornographic, obscene, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; or (iii) post advertisements or marketing content or solicitations of business, or any content of a commercial nature. We may investigate an allegation that any Content does not conform to these Terms and may determine in good faith and in its sole discretion whether to remove such Content, which we reserve the right to do at any time. If you are a copyright holder and believe in good faith that your content has been made available through the Service without your authorization, you may follow the process outlined at [DMCA Policy] to notify our designated agent (pursuant to 17 U.S.C. § 512(c)) and request that we remove such Content.
You hereby acknowledge that you may be exposed to Content from other users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Service, and further acknowledge that we do not control the Content posted by Service users and do not have any obligation to monitor (but do have the right) such Content for any purpose.
You retain any and all of your rights to any Content you submit, post or display on or through the Service and you are responsible for protecting those rights. We take no responsibility and assume no liability for Content you or any third party posts on or through the Service. However, by posting Content publicly using the Service you grant us the worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable right and license to use, modify, publicly perform, publicly display, reproduce, make derivative works of and distribute such Content on and through the Service and to additionally distribute and publicly perform your Content in connection with the Service and our (and our successor’s) business, in any media formats and through any media channels. You agree that this license includes the right for us to make your Content available to other users of the Service, who may also use your Content subject to these Terms.
In addition, Content found on or through this Service are the property of Ray company. or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.
When you create an account with us, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service.
You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.
MOBILE SERVICES; SMS
Use of the App requires usage of data and messaging services provided by your wireless service carrier. In particular, the App may use SMS messaging to provide you the functionality of the Service. You hereby consent to receiving such messages. You acknowledge and agree that you are solely responsible for data usage fees, messaging fees and any other fees that your wireless service carrier may charge in connection with your use of the App.
Intellectual Property As between you and us, we own all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service and all usage and other data generated or collected in connection with the use thereof other than the Content (“Our Materials”). Except for as expressly set forth herein, you agree not to license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of Our Materials. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, algorithm or programs underlying Our Materials. We reserve the right to modify or discontinue the Service or any version(s) thereof at any time in its sole discretion, with or without notice.
REPRESENTATIONS AND WARRANTIES
You represent, warrant and covenant that, in connection with these Terms or the Service, you will not and will not attempt to: (i) violate any laws, third party rights or our community guidelines and other policies; (ii) offer for sale or rent, sell or rent, purchase or otherwise transfer, deal in or dispose of illegal products or services or products or services that encourage illegal activities, controlled substances, offensive materials, stocks or other securities, pharmaceuticals, medical devices, firearms, weapons, explosives, hazardous materials, any item that has been subject to a recall or that you believe may be unsafe when used in an ordinary manner, alcohol, tobacco products, animals, plants or seeds; (iii) re-join or attempt to use the Service if we have banned or suspended you; (iv) defraud us or another user; or (vi) use another user’s account or allow another person to use your user account. Any illegal activities undertaken in connection with the Service may be referred to the authorities.
LICENSE TO USE THE APP
If you have downloaded the App, then, subject to your compliance with all the terms and conditions of these Terms, we grant you a limited, nonexclusive, nontransferable, revocable license to use the App on a compatible mobile device for your personal use, in each case in the manner enabled by us. If you are using the App on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service.
LINKS TO OTHER WEB SITES
Our Service may contain links to third party web sites or services that are not owned or controlled by us.
We have no control over, and assume no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites.
You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services.
As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these Terms. You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of it. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree not to scrape or otherwise use automated means to access or gather information from the Service, and agree not to bypass any robot exclusion measures we may put into place. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we believe (in our sole discretion) is false or misleading (including a profile that impersonates a third party).
When you use certain features or materials on the Service, or participate in a particular promotion, event or contest through the Service, such use or participation may be subject to additional terms and conditions posted on the Service. Such additional terms and conditions are hereby incorporated within these Terms, and you agree to comply with such additional terms and conditions with respect to such use or participation.
We may terminate or suspend your account and bar access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms. Note that deleting the App from your device will not terminate your Service account. Sections Content, Fees, Intellectual Property, Representations and Warranties, Links to other Web Sites, Prohibited Uses, Termination, Apple, Indemnification, Limitation of Liability, Disclaimer, Arbitration, Governing Law and Miscellaneous will survive any termination of these Terms.
If you wish to terminate your account, you may notify us and we will terminate your account and these Terms.
You hereby acknowledge and agree that Apple, Inc.: (i) is not a party to these Terms; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the App; (iii) is not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (v) is a third party beneficiary of these Terms with the right to enforce its terms against you directly.
You agree to indemnify and hold us and our affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Service, breach of these Terms or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at our own 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.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL WE OR OUR AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF OR RELATE TO THE SERVICE, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH US, EVEN IF WE OR OUR AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL OUR TOTAL LIABILITY OR THAT OF OUR AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE EXCEED ONE HUNDRED U.S. DOLLARS.
THE SERVICE AND ANY CONTENT, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE AND OUT LICENSORS, SERVICE PROVIDERS AND PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. WE AND OUR LICENSORS, SERVICE PROVIDERS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
This Section is referred to herein as the “Arbitration Agreement.” The parties agree that any and all controversies, claims, or disputes between you and us arising out of, relating to, or resulting from these Terms, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
THIS PARAGRAPH IS REFERRED TO AS THE “CLASS ACTION WAIVER.” THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures (the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions above. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against us.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the state of Delaware, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees“) will be governed by the AAA’s Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court decides that any term or provision of this Arbitration Agreement other than the Class Action Waiver is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of the Class Action Waiver is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms will continue to apply.
These Terms shall be governed and construed in accordance with the laws of Washington, United States, without regard to its conflict of law provisions.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.
We may make modifications, deletions and/or additions to these Terms (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of these Terms incorporating the Changes, whichever comes first.
If you have any questions about these Terms, please contact us. Under these Terms, you consent to receive communications from us electronically.
You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to arbitration shall be filed only in the state or federal courts in California (or a small claims court of competent jurisdiction) and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of these Terms shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of these Terms shall not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to these Terms made by us as set forth herein.