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Lavu Terms Of Service

Updated: 5/27/14

This Lavu User Agreement (“Agreement”) is a legal agreement between you (“you,” “your”) and Lavu, Inc. (“Lavu,” “we,” “our” or “us”) governing your use of Lavu’s iOS applications, websites and other services (the “Services”). To use the Services, you must accept all of the terms of this Agreement. If you do not agree with these terms and do not want to be bound by this Agreement, you may not download, use, or access the Services.

Definitions

  • “iOS” means Apple’s “iOS” operating system used on the iPad, iPod and iPhone.
  • “Lavu Control Panel” means the control panel used to change settings and options for your Lavu Account.
  • “Lavu Account” is an account that is created that allows you to access the Services provided by Lavu.
  • “Monthly Fee” is a fee paid on a monthly basis that is required for your continued use of your Lavu Account.
  • “Software License” is a license purchased to allow you to use the Services. The fee for the Software License is determined by the package that you sign up for.
  • “Credit Card Gateway” is a third party service that a merchant may choose to sign up with that handles the processing of credit card transactions.
  • “Account Activity” is defined as monthly payments being made to the Lavu Account within the last 30 days; or orders have been recorded by the Services in the last 30 days; or clock punches have been recorded by the Services in the last 30 days.
  • “Intellectual Property Rights” means all trademark, trade dress and service mark rights, patent rights, mask work right, copyright rights, rights of publicity, goodwill, moral rights, trade secret rights and other intellectual property rights as they may currently exist or exist in the future, and all applications thereof and registrations, renewals and extensions thereof, under the laws of any jurisdiction.
  • “Dispute” is a dispute or claim between you and Lavu.
  • “User Content” - Any content uploaded or changed by you, including but not limited to, text, photos, and other information

Headings

1.        The section headings contained in this Agreement are for reference purposes only and shall not in any way be used to construe meaning, intent or affect the interpretation of this Agreement.

Lavu Accounts

2.        To utilize our Services you will need to create an account with Lavu (a “Lavu Account”). During registration you will be asked for both personal information and information regarding your business. The information that you submit to create your Lavu Account must be complete and accurate. You must also keep the business and personal information in your Lavu Account up to date.

2.1        If you open a Lavu Account for a company, organization or other entity, you represent and warrant that you are an authorized representative of the company, organization or other entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity's behalf.

2.2        We reserve the right to terminate any Lavu Account that fails to comply with the account registration requirements or that we find to contain information that is untrue, inaccurate, or incomplete.

2.3        We reserve the right to terminate your Lavu Account, revoke your Software License and delete all data associated with the Lavu Account if there has been no Account Activity in your Lavu Account for a period of 180 days.

2.4        It is your responsibility to terminate your Lavu Account (described in section 15.1) if you no longer wish to utilize the Services. You will be charged a Monthly Fee beginning 1 day after a Software License is applied to your account. This Monthly Fee will continue on a recurring monthly basis until you terminate the account. The final Monthly Fee will be charged in full, we do not prorate the final Monthly Fees. Lavu will not refund any part of the Monthly Fee, even if you fail to cancel your account.

Software

3.        The Services may include software applications and web-based software. You must install any and all software application and web-based software updates to continue using the Services. From time to time older hardware or computer programs may no longer be compatible with the latest software applications and web-based software updates. It is your responsibility to upgrade any hardware or computer programs as needed to continue using the services.

Mobile Devices and Third Party Carriers

4.        Use of your Lavu Account requires compatible mobile devices and an internet connection that meets certain speed requirements. Lavu is not liable for any required or necessary agreements with the mobile device provider or internet provider and does not warrant that the Services will be compatible. Any mobile device that has been illegally altered or modified in any way is not a compatible device. You understand and accept that use of such a device is prohibited, a violation of the terms of this Agreement, and could result in the termination of your Lavu Account.

Unauthorized or Illegal Use

5.        If it is determined that your Lavu Account has been used for illegal or criminal purposes you acknowledge and authorize Lavu to share any information about you, your Lavu Account, and any other data to the appropriate law enforcement agencies.

Accepting Credit Card Payments

6.        Lavu does not directly handle processing of credit card transactions. Our Services simply facilitates transacting credit cards through integrated third party Credit Card Gateway and Processing partners. By transacting credit cards through our Services you must agree to the terms and conditions set by the Credit Card Gateway and Processor being used.

6.1        You are responsible for verifying that your credit card batch is settled and that all amounts are correct on a daily basis. It is your responsibility to notify Lavu immediately, if you notice a problem with authorizations, tip amounts, transacting payments, processing, batching, or the settlement amount. Your failure to notify Lavu of an error in authorizations, tip amounts, transacting payments, processing, batching, or the settlement amount within seven (7) days of the date of a discrepancy, shall constitute a waiver of liability to Lavu.

6.2        Lavu is not liable for any damages if the error was caused by you, misuse of the Services, or the Credit Card Gateway or Processor.

Taxes

7.        You are responsible for paying any federal, state, local, or other tax that Lavu is required to collect in addition to the standard Monthly Fee.

Fees

8.        In order to use the Services you agree to pay the Monthly Fee for your data storage, security, maintenance, upgrades and support. We reserve the right to change the Monthly Fee with thirty (30) days notice. If you do not consent to the increase in the Monthly Fee, you will need to close your Lavu account.

Customer Service

9.        Lavu reserves the right to include and utilize tools, capabilities and methods in our software and applications to allow remote access to the devices or computers that contain the software or application or the computer network to which the devices or computers are connected. We may use this remote access functionality to log in to the devices or computers to monitor, modify, alter or otherwise manipulate the data on the remote device for the purpose of providing technical support and ensuring that the Services function as intended.

Privacy

10.        By accepting this Agreement you agree that you have read, understood and accepted our Privacy Policy[a].

Notices

11.        By accepting this Agreement you acknowledge and accept that Lavu will post disclosures and notices required by law and any other information deemed pertinent by electronic means to include on any Lavu maintained website, via email, or in your Lavu account. You accept these electronic notices have the same validity as paper copies. These notices will be considered received after 24 hours of posting on a Lavu-maintained website, to your Lavu Account, or notice via email and continued use of the Services.

Your Content

12.        You understand that you are able to upload or customize User Content and do so willingly without any obligation. You also agree that any User Content uploaded or customized is your own or you have explicit permission from the owner of the content to use it in connection with the Service.

12.1        We reserve the right to edit, modify or delete User Content at our discretion.

12.2        We may use any User Content for advertising or any other purposes.

12.3        We take no responsibility and are not liable for any loss or damage to User Content.

Copyright and Trademark Infringement

13.        Lavu respects and honors trademark and copyright rights of others and we ask that you do the same. Any valid notices of copyright or trademark infringement to Lavu may be responded to with termination of Services of any Lavu Account who violates the copyrights and trademarks of others.

Security

14.        Lavu utilizes policies, procedures, and technical measures to protect your personal information from accidental loss or malicious acquisition, use, alteration, or access. Lavu cannot guarantee that unauthorized personnel will never be able to access your information by circumventing or breaking the measures in place to prevent such activity. Your acknowledgement of this Agreement represents your understanding that you provide your personal information at your own risk.

Termination

15.        If for any reason or no reason your Lavu Account is terminated, you agree: (a) To continue being bound by this Agreement, (b) to immediately stop using the Services, c) the Software License provided under this Agreement is also terminated, (d) we reserve the right (under no obligation) to delete any and all information or data stored on our servers, and (e) that Lavu is not liable to you or any third party for termination of your Services or deletion of information or data.

15.1        You have the right to terminate your Lavu Account at any time. To terminate your Lavu Account log in to the Lavu Control Panel, click on “MY ACCOUNT” then click on “Cancel All Billing & Disable Account” and follow the instructions.

15.2        We reserve the right to terminate your Lavu Account for any reason or no reason at anytime with or without notice.

15.3         We are not liable for any compensation, refund, or damages related to the termination of your Lavu Account. Termination of your Lavu Account does not void any obligation on your part for owed Monthly Fees or Software License costs.

15.4        Lavu offers a fourteen (14) day free trial that starts when you create a Lavu Account. After the trial period has expired you will be billed for the cost of a Software License. This fee is non-refundable and will not be returned upon termination of your account.

License

16.        Lavu grants you a personal, non-exclusive, non-transferable, limited, revocable license, without the right to sublicense or assign, to access and use the Services.

16.1        You are not permitted, nor may you permit any third party to do any of the following: i) reproduce, alter, modify, copy, generate derivative work, publish, publicly display, upload, post, transmit, resell or distribute in any way material or information from Lavu; ii) grant access or give permission to any third party to rent, lease, timeshare, or other arrangement; iii) transfer any rights granted to you under this Agreement; iv) violate the restrictions (by any means) to circumvent any technical limitations of the Services or place a disproportionately large load on our infrastructure; v) otherwise use the Services other than what is contemplated by this Agreement.

Ownership of Services

17.        The Services are licensed and not sold. Lavu reserves all rights not expressly granted to you in this Agreement. This Agreement does not grant you any rights to Lavu’s service marks or trademarks, or any other intellectual property rights. The Services are protected by intellectual property laws, including but not limited to trademark, patent, trade secret and copyright laws. Lavu owns all Intellectual Property Rights in the Services.

17.1        Any ideas or comments submitted, including but not limited to ideas for new products or ways to improve the Services, is gratuitous. You agree that we may use the idea in any way and that you waive any right to any compensation or other benefit from our use of the idea.

Indemnity

18.        You will indemnify, defend, and hold us, our officers, executives, and employees harmless from and against any and all claims, losses, damages, claims, judgments, penalties, interest, tax assessments, and expense arising from any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; b) your improper or wrongful use of the Services; c) your violation of any law, rule or regulation of the United States or any other country; d) any party’s access and/or use of the Services with your unique username or password; e) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights.

Representation and Warranties

19.        You represent and warrant to Lavu that: a) you are eighteen (18) years of age or older; b) you are eligible to register and use these Services and have the power, ability, and right to enter into a perform under this Agreement; c) the name used to create the Lavu Account is your name or the name of your business under which you will utilize the Services; d) you will not, directly or indirectly, use the Services for fraudulent activity or to interfere with these Services; e) your use of this Service will comply with this Agreement.

No Warranties

20.        The use of these Services is at your own risk. To the maximum extent permitted by applicable law, the Service is provided on an “As Is” and “As Available” basis without any guarantee or warranty of any kind, expressed or implied, including without limitation merchantability implied warranties, compatibility for any specific purpose, or non-infringement, all of which is disclaimed. No oral or written information or advice from Lavu will create a warranty not expressly stated herein. Without limiting the foregoing, Lavu does not warrant that the Service is reliable, correct, or accurate; that the Service is virus free or contains no harmful components or code; that the Service will be available at any given time or location, secure, or uninterrupted; that the service will meet your requirements; or that any defects or errors will be corrected. Any downloaded content through the use of the Services is at your own risk and you are solely responsible for any damage or loss of information that results from such downloads.

Lavu does not warrant, condone, endorse, assume responsibility, or guarantee any third party service or product offered or advertised within the Services. Your use of such third party components are at your own risk.

Processing and Calculation Errors

21        The Services are provided on an “As Is” basis. You agree that Lavu is not responsible for any monetary losses or damage that you may suffer while using the Services. It is your responsibility to verify that calculations made by the Services are correct and, if applicable, include the appropriate taxes, gratuities, and other fees.

Limitations of Liability and Damages

22.        To the maximum extent permitted by applicable law, under no circumstances is Lavu liable for any direct, indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for profits, goodwill, use, data, or other intangible losses, that result from the use of, inability to use, or unavailability of the Service. Under no circumstances will Lavu be liable for any damage or loss resulting from hacking, tampering, or otherwise illegally tampering or using the Service or your Lavu account, or the information contained therein.

22.1        To the maximum extent permitted by applicable law, Lavu assumes no responsibility or liability for any (I) Any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (II) any interruption or termination of communication to or from the Service; (III) any bugs, viruses, worms, trojan horses, or the like that may be transmitted to or through the Service by a third party; (IV) any errors or missing information in any content or data or for any loss or damage incurred as a result of the use of any content or data posted, emailed, transferred, transmitted, or otherwise made available through the Service; (V) User Content or the defamatory, offensive, or illegal conduct of any third-party.

22.2        This limitation of liability section applies regardless of whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Lavu has been advised of the possibility of such damages. The foregoing liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.

Assignment

23.        This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Lavu without restriction and without your consent.

Disputes & Arbitration

24.        In the event that a Dispute arises, you will contact Lavu Support to give us the opportunity to resolve the Dispute. If we are unable to resolve the Dispute, you agree to an arbitration dispute resolution process using a single arbitrator.

24.1        Any arbitration will be on an individual basis; class arbitrations, class actions, private attorney general actions, and consolidation of other arbitrations are not permitted. You are waiving your right to a trial by jury and the ability to participate in class action against Lavu.

24.2        Any and all arbitration shall only occur in Albuquerque, New Mexico, or at a mutually agreed-upon location. Any award granted by an arbitrator shall be binding on both parties and may be entered as a judgment in any court of competent jurisdiction. For the purposes of this arbitration section, any references to you or Lavu include affiliates, employees, agents, subsidiaries predecessors, successors as well as authorized users of the Services.

Governing Law

25.        This Agreement shall be governed by and construed in accordance with the laws of the State of New Mexico, without regard to conflict of law principles.

Time to Initiate a Dispute

26.        Unless as otherwise required by law, any proceeding or action by you relating to any Dispute must commence within six (6) months after the incident occurs that is the basis of the cause of action, otherwise such proceeding or action is barred and you waive your rights to bring such proceeding or action..

Right to Amend Services or Agreement

27.        Lavu reserves the right to alter or add to the terms of this Agreement at any time, and to delete, discontinue, change, or impose conditions at our sole discretion on any feature or function of the Services with or without notice that we determine to be reasonable in the circumstances, including such notice on our website at lavu.com or any other affiliated website maintained by us for the purposes of providing services in terms of this Agreement. Any use of the Services after our publication of any changes shall constitute your acceptance of this Agreement as modified.

Third Party Services and Products

28.        Lavu is integrated with third-party products and services that have not been built, developed, or maintained by Lavu (Third Party Products). If you choose to use any of these Third Party Products it is your responsibility to review and understand any applicable terms and conditions associated with these services. You agree that Lavu is not responsible for the performance of these Third Party Products and makes no warranties with respect to these Third Party Products. You agree that Lavu is not liable for any damages related to the use or inability to use these Third Party Products.

28.1        You are responsible for understanding the Third Party Products manufacturer’s terms of service and warranty information for hardware, service, or product used in conjunction with the Services. The Third Party Products manufacturer is responsible for any and all support and service of its own product. You understand that any support, service, or warranty assistance for third party hardware, services, or products should be pursued directly with the manufacturer.

28.2        Links to third party websites may be provided as a convenience through the Service. Any inclusion of website links does not imply endorsement, approval, or recommendation of the Third Party Products by Lavu. You agree that you access any such website at your own risk, and understand that the website is not governed by this Agreement. Lavu expressly disclaims any liability for these websites and Third Party Products. Our Privacy Policy is no longer in effect when you use a link from the Services to a Third Party Products website. Your browsing and interaction while on the Third Party Products websites, including those that have links in the Services, is subject to Third Party Products rules and policies.

Severability

29.        Severability. If any provision of this Agreement as applied to any Party in any circumstance is adjudged by a court to be invalid or unenforceable, this will in no way affect any other provision of this Agreement, the application of such provision in any other circumstance, or the validity or enforceability of this Agreement.

Survival

30.        Your obligations and representations and warranties shall survive the termination of this Agreement and your Lavu Account.


I have read and agree to these terms of service.