Lula Technologies, Inc. (“LULA”) offers various insurance-related technology services and offerings (“Offerings”). LULA provides certain of the Offerings through this online platform (“Platform”). All access to and use of the Offerings and Platform is subject to these Terms and Conditions (“Terms”). By accessing or using any Offerings through the Platform, You or, if you are accessing the Offerings or Platform on behalf of another individual, organization, or entity, that organization or entity (in either case, “Customer”) agree to be bound by these Terms. Customer may also agree to be bound by these Terms by entering into a service agreement with LULA (“Service Agreement”). In any case, LULA is willing to allow access to and use of the Platform and Offerings only if Customer agrees to be bound by these Terms. PLEASE CAREFULLY READ THESE TERMS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, OR DOES NOT MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS, LULA IS NOT WILLING TO PROVIDE CUSTOMER WITH ACCESS TO ANY OFFERINGS OR THE PLATFORM. BY CLICKING “I AGREE” TO THESE TERMS OR BY ACCESSING ANY OFFERINGS, CUSTOMER AGREES TO THESE TERMS. ANY INDIVIDUAL AGREEING TO THESE TERMS ON BEHALF OF CUSTOMER REPRESENTS AND WARRANTS THAT SHE, HE, OR THEY HAVE ALL APPROPRIATE AUTHORITY TO BIND THE CUSTOMER TO THESE TERMS AND THAT SHE, HE, OR THEY WILL NOT TO CLICK “I AGREE” OR ACCESS OR USE THE ANY OFFERINGS OR THE PLATFORM UNLESS AND UNTIL SHE, HE OR THEY HAVE SUCH AUTHORITY.
1. SERVICE AGREEMENTS.
Service Agreements provide Customer with access to Offerings and additional services (“Services”) specified in each Service Agreement. Nothing herein grants Customer any rights to any such Offerings or Services unless Customer has entered into a Service Agreement with LULA applicable to such Offerings and Services. The terms of any Service Agreement apply only to the Offerings and Services specified under that Service Agreement. In the event of a conflict between these Terms and the terms of any Service Agreement, each Service Agreement will control with respect to terms specifically related to the Offerings and Services specified thereunder and these Terms will generally control in all other respects.
These Terms and each Service Agreement entered into by Customer together form an agreement between Customer and LULA regarding the Services and other Offerings specified in that Service Agreement (“Agreement”). All Services and other Offerings specified in each Service Agreement are subject the terms of the Agreement formed by the Terms and that Service Agreement. Each Agreement contains the entire agreement of the parties with respect to the Services and other Offerings specified in the Service Agreement forming part of that Agreement. There are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of each Agreement. Each Agreement supersedes any prior written or oral agreements between the parties regarding the Services and other Offerings specified in the Service Agreement forming part of that Agreement, including any quotations or offers issued or provided by LULA.
All capitalized terms used in these Terms will have the meanings given to them herein or in any Agreement. All other terms used in these Terms will have their plain English (U.S.) meaning.
These Terms are entered into and effective as of the earlier of the date Customer (1) first clicks “I agree” or accesses or uses any of the Offerings, or (2) enters into a Service Agreement referencing these Terms. These Terms will continue until terminated as set forth herein or in any Agreement.
Each Service Agreement may enable Customer to obtain access to certain additional; Services specified in that Service Agreement. All such Services are solely as specified in each applicable Service Agreement and these Terms do not provide Customer with any such additional Services.
Any insurance policies applicable to any Services (“Policies”) are separate contracts and are not subject to these Terms or a part of any Agreement. CUSTOMER ACKNOWLEDGES THAT LULA IS NOT AN INSURER. LULA’S ONLY OBLIGATIONS ARE UNDER THIS AGREEMENT AND UNDER NO CIRCUMSTANCES WILL LULA HAVE ANY OBLIGATION TO PROVIDE INSURANCE COVERAGE UNDER ANY POLICY OR PERFORM ANY OBLIGATIONS UNDER ANY POLICY. CUSTOMER HEREBY RELEASES LULA FROM ANY SUCH OBLIGATION UNDER OR WITH RESPECT TO ANY POLICY. ALL POLICIES ARE PROVIDED BY EACH APPLICABLE INSURER UNDERWRITING THE POLICY. IN NO EVENT WILL LULA BE LIABLE FOR ANY AMOUNTS DUE UNDER ANY POLICY. CUSTOMER HEREBY RELEASES LULA FROM ANY CLAIM RELATING THERETO. CUSTOMER IS SOLELY RESPONSIBLE FOR REVIEWING THE TERMS APPLICABLE TO ANY POLICY AND FOR COMPLYING WITH ALL SUCH TERMS.
7. THIRD-PARTY OFFERINGS.
The Offerings may include services and functionality provided by LULA’s third party providers (“Third-Party Offerings”). Customer acknowledges and agrees that LULA is not responsible for any Third-Party Offerings, including their accuracy, completeness, or performance thereof. LULA does not assume and shall not have any liability or responsibility to Customer for any Third-Party Offerings. Any Third-Party Offerings are subject to any additional terms and conditions accompanying those Third-Party Offerings. All access by Customer to and use of any Third-Party Offerings is entirely at Customer’s risk and subject to such third parties' terms and conditions.
8. DATA AND CONTENT.
8.1 LULA Data.
The Offerings and Services may provide Customer with access to data, information, and other content provided by LULA and its providers (“LULA Data”). Subject to Customer’s compliance with the Agreement, during the Term, Customer may access the LULA Data through the Offerings and Services and use the LULA Data without modification solely for Customer’s own internal business purposes in connection with Customer’s use of and access to the Offerings and Services in connection with which such LULA Data is provided. LULA will use commercially reasonable measures designed to help ensure the accuracy and reliability of the LULA Data, but LULA will not be responsible for any errors or omissions in any LULA Data.
8.2 Customer Data.
9. ACCESS TO THE PLATFORM.
Subject to Customer’s compliance with these Terms and each Agreement, and subject to any termination of these Terms or any Agreement, LULA will provide Customer with a limited, non-exclusive, non-transferable, non-sublicensable right solely to allow employees, agents, contractors or representatives of Customer (“Users”) to access the Offerings and Services through LULA’s web-portal for the Platform (the “Portal”), solely for Customer’s own internal business purposes.
All access to the Portal by any User will be through Customer’s account on the Portal (an “Account”). Each identification and password associated with Customer’s Account (the “Account ID”) is personal in nature and may only be used by Customer and its Users to access the Account. Customer will ensure that all Account IDs are kept secure and confidential and will not, and shall ensure that its Users do not, share any Account ID or provide any third party access to the Account. Customer is solely responsible for all access to the Portal and all Offerings through the Account and all use of the Portal or any Offerings through the Account will be deemed to have been completed by Customer. Customer is solely responsible for compliance by each User with these Terms and the applicable terms of each Agreement and any other terms or conditions applicable to the Portal. Customer will ensure that all information about each User provided to LULA is and remains accurate and complete. Customer will notify LULA immediately if any Account ID is lost or stolen, or if the Account is otherwise compromised.
9.2 Platform API.
If LULA provides Customer with permission to access the Platform through one or more of LULA’s application programming interfaces for the Platform (each, an “API”), then subject to Customer’s compliance with these Terms and each Agreement, and subject to any termination of these Terms or any Agreement, LULA will provide Customer with a limited, non-exclusive, non-transferable, non-sublicensable right solely to (i) enable websites, web services or other platforms owned and controlled by Customer (“Customer Sites”) to access the Offerings through the API, and (ii) allow Users to access the Offerings through the Customer Sites, solely for Customer’s own internal business purposes.
(i) Customer Sites.
Customer is solely responsible for enabling each Customer Site to interface directly with the API and enabling the Customer Site to support access to the Offerings through the API. Customer will develop each Customer Site in compliance with these Terms and each Agreement and all applicable technical requirements and specifications for the API (the “Specifications”). Customer will remain solely responsible for ensuring that the operation of each Customer Site remains in compliance with these Terms and each Agreement and all Specifications.
Prior to making any Customer Site available for use by Users, Customer will test the Customer Site to ensure that it operates properly with the API and complies with all applicable Specifications. Customer will not provide access to or use of any Customer Site to any User prior to confirmation that such Customer Site has successfully completed such testing. LULA may, in its sole discretion, require Customer to cease operation of any Customer Site if LULA reasonably believes that the Customer Site fails to comply with this Agreement or any Specifications.
Customer (and the Customer Sites) will access the APIs using only the current version of any access credentials provided by LULA (“API Credentials”), including as applicable subscription or authorization keys or tokens. LULA may update the API Credentials periodically upon notice to Customer. Customer is solely responsible for all use of the API Credentials provided to Customer. Customer will ensure the security and confidentiality of all API Credentials and will prevent unauthorized access to or use of the API or any Offerings through any API Credentials. Customer will notify LULA promptly of any such unauthorized access or use of any API or Offerings through the API Credentials or if any API Credentials are lost, stolen, or otherwise compromised. All use of the API or any Offerings through the API Credentials will be deemed to have been completed by Customer.
The Platform, including all Offerings and Services, all LULA Data available through the Offerings and Services, and all software, hardware, interfaces (including the APIs), data, databases, and other technology used to provide foregoing (collectively, the “LULA Technology”), constitute the valuable intellectual property of LULA. As an express condition to the rights granted to Customer under these Terms and each Agreement, Customer will not and will not permit any employee, contractor, User, or third party to: (1) use or access the LULA Technology or any portion thereof for any purpose except as expressly provided herein and in each Agreement; (2) modify, adapt, alter, translate, or create derivative works from the LULA Technology; (3) distribute, lend, loan, lease, license, sublicense, transfer, or make available the LULA Technology, or any rights in or to the LULA Technology to any third party; (4) access or use the LULA Technology in any unlawful, illegal, or unauthorized manner; (5) access or use the LULA Technology in any manner that could damage, disable, overburden or impair the operation of the LULA Technology; (6) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the LULA Technology; (7) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to the LULA Technology; (8) interfere in any manner with the operation of the LULA Technology or attempt to gain unauthorized access to the LULA Technology; (9) use the APIs to access or interface with any products, systems, applications, software, or hardware other than the Platform; (10) develop any software or other technology for accessing or using the LULA Technology in a way other than as permitted in the Agreement; (11) except as expressly permitted herein, use automated scripts or processes to collect information from or otherwise interact with the LULA Technology; or (12) alter, obscure, or remove any copyright notice, copyright management information or proprietary legend contained in or on any LULA Technology. All use of the LULA Technology will be solely in accordance with these Terms and each Agreement and any additional documentation or instructions provided by LULA. LULA may monitor use of the API, Portal, and Offerings to verify compliance with these Terms and each Agreement. Customer consents to all such monitoring and to the use by LULA of all data and information collected through such monitoring.
11. FEES AND PAYMENT.
Customer will pay LULA the fees specified in each Agreement or otherwise agreed to by Customer on the Platform (“Fees”) when due. Unless specified in an applicable Agreement or on the Platform, all Fees are due and payable by Customer in advance as and when invoiced by LULA. Customer may not withhold, reduce, or offset Fees owed to LULA under these Terms or any Agreement against any amounts due to Customer. If Customer has specified a credit card, debit card, online payment account, mobile services account, bank account, or other payment method as an applicable payment mechanism under the Agreement, Customer hereby grants LULA the right to charge the applicable account Customer provided to LULA for all Fees incurred under each Agreement. All Fees are non-refundable. In the case of late payment, after prior written notice, LULA may suspend Customer’s use of the Platform and any applicable Offerings until payment is made in full. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Customer will reimburse LULA for all costs associated with any collection agencies, attorneys, arbitrations, or courts of law utilized by LULA in collecting any past due amounts under any Agreement. Customer agrees to pay any taxes and other Fees and charges imposed by any government entity on the access to the Platform or any Offerings or arising from these Terms or any Agreement, excluding only taxes based on LULA’s net income and payroll taxes.
As between LULA and Customer, LULA and its providers retain all right, title, and interest, including all intellectual property and other rights throughout the world, in and to the LULA Technology and any updates, upgrades, enhancements, modifications, and improvements thereto. Customer receives no interest in or to any of the foregoing. Customer is not granted any right or license to use any of the foregoing (whether by implication, estoppel, or otherwise), apart from Customer’s permitted access to the Platform and the Offerings and Services as specified herein and in each Agreement. The LULA name, logo and all product and service names associated with the Platform and the Offerings and Services are trademarks of LULA and its licensors and providers, and Customer is granted no right or license to use them. Customer covenants, on behalf of itself and its successors and assigns, not to assert against LULA any rights, or any claims of any rights, in any LULA Technology. Except as expressly stated in the Agreement, LULA grants Customer no rights or licenses in or to the LULA Technology or under any intellectual property or other rights of LULA, whether by implication, estoppel, or otherwise.
13. TERMINATION AND EFFECT.
Either party may terminate these Terms or any Agreement by providing 60 days’ advance notice to the other party. In addition, either party may terminate these Terms or any Agreement effective on written notice to the other party if the other party materially breaches these Terms or such Agreement and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach. Either party may also terminate any Agreement as may be otherwise specified in such Agreement. Termination of these Terms will also terminate any Agreement, including any then-current Service Agreement forming a part of that Agreement. Termination of a Service Agreement will also terminate any Agreement formed by that Service Agreement, provided that these Terms shall remain in full force and effect notwithstanding any such termination of any such Agreement, until these Terms are themselves terminated as specified herein.
13.2 Effect of Termination.
Upon termination of these Terms or an Agreement for any reason: (a) all rights and licenses granted to Customer under these Terms and the Agreement will terminate; (b) LULA may cease providing Customer with access to the Platform (including the API and Portal) and all Offerings and Services thereunder; (c) Customer will immediately cease all use of and access to the Platform and all Offerings and Services; (d) Customer will immediately cease all use of all LULA Data obtained prior to termination; and (e) LULA may, in its sole discretion, delete or deactivate any Accounts or API Credentials, and delete any Customer Data. Customer acknowledges that Customer Data may continue to exist on the Platform after termination of these Terms and the Agreement unless Customer actively deletes it or contacts LULA to request deletion.
The applicable portions of the following Sections will survive any expiration or termination of the Agreement 3 (Definitions), 6 (Policies), 8.2 (Customer Data), 11 (Fees and Payment), 12 (Ownership), 13 (Termination), 15 (Warranties), 16 (Disclaimer), 17 (Indemnity), 18 (Limitation of Liability), 19 (Confidentiality), 20 (Dispute Resolution), 24 (Notices), and 28 (Additional Terms).
Without limiting LULA’s right to terminate these Terms or any Agreement, LULA may also suspend Customer’s access to the Platform or any Offerings or Services (including all Customer Data), with or without notice to Customer, upon any actual, threatened, or suspected breach of these Terms or any Agreement or applicable law or upon any other conduct deemed by LULA to be inappropriate or detrimental to LULA, the Platform or the Offerings or Services, or any other LULA customer, user, or other third party.
Customer represents, warrants, and covenants that: (a) it has full power and authority to enter into these Terms and each Agreement and to perform its obligations hereunder and under each Agreement; (b) these Terms and each Agreement form a legal and valid obligation binding upon Customer and enforceable in accordance with their respective terms; and (c) these Terms and each Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which Customer is a party or by which such party is bound.
15.2 Compliance with Law.
Customer acknowledges that the Offerings and Services are general-purpose and are not specifically designed to facilitate compliance with any specific law. Customer represents, warrants and covenants that it will at all times comply with all applicable laws, rules, and regulations (“Laws”) and will not cause LULA to violate any applicable Laws. Customer will implement and maintain reasonable procedures to ensure such compliance, including with respect to its access to and use of the Platform and the Offerings and Services, including all Customer Data it provides or makes available through the Platform. Customer agrees to take such actions as LULA reasonably believes necessary for either or both of Customer and LULA to comply with any applicable Laws, including the Fair Credit Reporting Act, 15 U.S.C. § 1681 and any laws, rules or regulations governing the offering or provision of insurance. Customer will obtain all consents, authorizations, and permissions, and deliver all applicable notices, disclosures, or other instruments, to the extent requested by LULA or otherwise necessary to comply with all applicable Laws. Notwithstanding the foregoing, LULA is not responsible for notifying Customer of any such applicable Laws or for enabling Customer’s compliance with any such Laws, or for Customer’s failure to comply.
LULA warrants that it will use commercially reasonable efforts to provide the Offerings and Services as indicated in each Agreement. Customer’s sole and exclusive remedy, and LULA’s entire liability, for any breach of the foregoing warranty will be, in LULA’s discretion, to re-perform or repair the deficient Offerings or Services or to terminate Customer’s use of and access to the affected Offerings or Services.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 15, LULA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND LULA HEREBY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL REPRESENTATIONS, WARRANTIES, TERMS, CONDITIONS, OR STATEMENTS, WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR BE IMPLIED OR INCORPORATED INTO THESE TERMS AND EACH AGREEMENT, WHETHER BY STATUTE, COMMON LAW, OR OTHERWISE, INCLUDING ANY IMPLIED CONDITIONS, WARRANTIES, OR OTHER TERMS AS TO TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE. LULA MAKES NO WARRANTIES THAT THE OPERATION OF THE PLATFORM OR ANY OFFERINGS OR SERVICES, INCLUDING THE PORTAL OR API, WILL BE SECURE, UNINTERRUPTED, OR ERROR FREE OR THAT CUSTOMER WILL RECEIVE ANY INSURANCE COVERAGE HEREUNDER.
Customer will indemnify, defend, and hold harmless LULA, its Insurers, each of their respective affiliates, and their respective officers, directors, shareholders, employees, agents, contractors, assigns, customers, users, providers, licensees, and successors in interest (“Indemnified Parties”) from and against any and all losses, liabilities, damages, fees, penalties, fines, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim, allegation, or lawsuit against any Indemnified Party arising in from or relating to: (1) Customer’s access to or use of the Offerings or Services, including any LULA Data; (2) Customer Data or any lack of disclosure, consent, or permission necessary for LULA to use the Customer Data as permitted by these Terms or any Agreement; (3) any Policy or any insurance coverage or other benefits thereunder; and (4) Customer’s breach of any representation, warranty, or other provision of these Terms or any Agreement. LULA will provide Customer with notice of any such claim or allegation, and LULA will have the right to participate in the defense of any such claim at its expense.
18. LIMITATION OF LIABILITY.
LULA AND ITS INSURERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM OR ANY OFFERINGS OR SERVICES, EVEN IF LULA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF DATA OR OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. LULA’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS AND ANY AGREEMENT AND THE PLATFORM AND OFFERINGS AND SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (1) AMOUNTS CUSTOMER ACTUALLY PAID TO LULA FOR USE OF THE OFFERINGS OR SERVICES GIVING RISE TO THE LIABILITY IN THE PRECEDING 1 MONTH OR (2) $1000. CUSTOMER AGREES THAT LULA WOULD NOT ENTER INTO THESE TERMS OR ANY AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. ALL CLAIMS BY CUSTOMER AGAINST LULA PARTY RELATING TO THESE TERMS, THE AGREEMENT OR THE PLATFORM OR ANY OFFERING OR SERVICE MUST BE BROUGHT WITHIN 12 MONTHS AFTER THE CLAIM ARISES, OR ANY SHORTER PERIOD SPECIFIED BY APPLICABLE LAW. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, LULA’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
These Terms and the terms of each Agreement (including all Fees), all LULA Data, and any other information disclosed or made available by LULA under the Agreement, are and will remain the “
” of LULA. Customer will not disclose Confidential Information to any third party without LULA’s prior written consent. Customer may disclose the Confidential Information only to its employees who have a need to know the Confidential Information for purposes of Customer’s valid use of the Offerings as permitted under the Agreement and who are bound by an obligation of confidentiality at least as protective of the Confidential Information as the Agreement. Customer will treat all Confidential Information with the same degree of care as Customer treats its own confidential information, which, in no event, will be less than reasonable care. Customer will not utilize the Confidential Information other than as expressly permitted herein or in any Agreement.
20. DISPUTE RESOLUTION.
The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to these Terms and any Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of these Terms or the Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to the Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in this Section, if any Dispute cannot be resolved through negotiations between the parties within 30 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration under the JAMS streamlined arbitration rules and procedures then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days after either party delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by LULA in Miami, Florida. The arbitrator will apply the law set forth in these Terms to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend these Terms or the Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
21. INJUNCTIVE RELIEF.
Without prejudice to the parties’ right to proceed with arbitration, if LULA reasonably believes Customer has, in any manner, breached its confidentiality obligations under the Agreement or violated, misappropriated, or infringed or threatened to violate, misappropriate, or infringe any intellectual property or other rights of LULA throughout the world, then LULA may seek emergency, preliminary or other appropriate interim relief in the federal courts located in Miami, Florida.
22. CHOICE OF LAW; VENUE.
The interpretation of the rights and obligations of the parties under these Terms and any Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Florida (U.S.A.) as such laws apply to contracts between Florida residents performed entirely within Florida, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement, and the parties hereby disclaim the application thereof. Subject to Section 19.1, each party will bring any action or proceeding arising from or relating to these Terms or any Agreement exclusively in a federal court in Miami, Florida (U.S.A.), and Customer irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding brought in such courts by LULA.
23. WAIVER OF JURY TRIAL AND CLASS ACTION.
BY AGREEING TO ARBITRATE DISPUTES, THE PARTIES ARE WAIVING ANY RIGHT TO A TRIAL BY JURY OR A COURT, EXCEPT TO THE LIMITED EXTENT SET FORTH ABOVE. THE PARTIES ALSO WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR ANY FORM OF COLLECTIVE OR REPRESENTATIVE ACTION. CUSTOMER AND LULA AGREE THAT THE ARBITRATOR HAS NO AUTHORITY TO CONDUCT CLASS-WIDE ARBITRATION AND CAN ONLY DECIDE THE DISPUTE BETWEEN CUSTOMER AND LULA. IF ANY PART OF THE ARBITRATION AGREEMENT IS RULED TO BE INVALID, THEN THE UNDERLYING DISPUTE MUST BE RESOLVED BY A JUDGE, SITTING WITHOUT A JURY, IN A COURT OF COMPETENT JURISDICTION, AND NOT AS A CLASS ACTION LAWSUIT
Any notices required or allowed under these Terms or any Agreement will be provided to LULA by postal mail to the address for LULA listed on its website, attention “Legal”. LULA may provide Customer with any notices required or allowed under these Terms or any Agreement by sending Customer an email to any email address Customer or its Users provide to LULA in connection with these Terms or that Agreement. Notices provided to LULA will be deemed given when actually received by LULA. Notice provided to Customer will be deemed given 24 hours after sending via e-mail, unless (as to e-mail) LULA is notified that the e-mail address is invalid.
Customer will comply with all export and import control Laws applicable to the access to and use of the Platform and the Offerings and Services. Customer will obtain all licenses, permits, and approvals required by the U.S. government or any other government and under any applicable laws. Customer will not export or re-export any LULA Technology without all such required licenses, permits, and approvals. Customer will defend, indemnify, and hold harmless LULA from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by LULA as a result of any violation of such laws by Customer.
LULA may, in its sole discretion, modify these Terms from time to time. LULA will use commercially reasonable efforts to provide Customer with notice of any material modifications to these Terms. Notice may be provided to Customer directly or to all customers of the Offerings and Services. Any modification to these Terms made for legal or administrative reasons will be effective upon notice. Any modification to these Terms for any other reason will be effective 30 days following posting of the modified version of these Terms to the LULA website. Customer’s continued access to or use of the Platform or any Offerings or Services following such notice constitutes Customer’s acceptance of and agreement to modify these Terms and any Agreement in which these Terms are included. Except as expressly specified herein, these Terms or any Agreement may be amended or modified only by a writing signed by both parties. Notwithstanding any modification to these Terms or any Agreement, LULA may modify the functionality of the Platform (including the API or Portal) or any Offerings or Services at any time with or without notice to Customer, provided that LULA will not materially reduce the functionality thereof without providing Customer with an opportunity not to renew any applicable Agreement for such Offerings or Services.
27. FORCE MAJEURE.
If performance of these Terms or any Agreement or any obligation hereunder is prevented, restricted, or interfered with by causes beyond LULA’s reasonable control (“Force Majeure”), then such obligations of LULA shall be suspended to the extent necessary by such event. The term Force Majeure shall include acts of God, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wards, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. LULA shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
28. ADDITIONAL TERMS.
All waivers by LULA under these Terms or any Agreement must be in writing or later acknowledged by LULA in writing. Any waiver or failure by LULA to enforce any provision of these Terms or any Agreement on one occasion will not be deemed a waiver by LULA of any other provision or of such provision on any other occasion. If any provision of these Terms or any Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. In interpreting and construing these Terms and any Agreement, the singular includes the plural (and vice versa) and any reference to “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation. No rule of contractual construction shall apply to the disadvantage of a party because that party was responsible for the preparation of these Terms or any Agreement. The prevailing party in any lawsuit, arbitration, or proceeding arising from or related to these Terms or any Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither these Terms or any Agreement nor any rights or obligations of Customer hereunder may be assigned or transferred by Customer (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of LULA. Any assignment in violation of the foregoing will be null and void. LULA may assign these Terms or any Agreement to any party that assumes LULA’s obligations hereunder. The parties hereto are independent contractors, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. The rule requiring construction or interpretation against the drafter is waived and these Terms and any Agreement shall be deemed as if they were drafted by both parties in a mutual effort.