First posted Jan 15 2018, to replace EULA established in 2011

Update Notes:

• Last updated Jan 6 2022 to reflect subscription and content creations terms and conditions
• Updated Jan. 11 2021 to change brand from Lumo / Lumo Play to LUMO / LUMOplay

LUMO Interactive Inc. Terms of Service

INTRODUCTION

This LUMO Interactive Inc. Terms of Service Agreement (this "Agreement") governs your access to and use of the products and services that are provided by LUMO Interactive Inc. (“LUMO”), from time to time, including:

• Our website (our "Site").
• The LUMOplay software, which may include associated software components, pre-designed and custom-designed games and effects, media, printed materials, and online or downloadable electronic files and documents (collectively, the "Software"),

all of which products and services provided by LUMO are collectively referred to as the "LUMO Services".

As used in this Agreement, “we” and “us” refers to LUMO, and “you” and “your” refers to the user of the LUMO Services.  The effective date of this Agreement is when you accept it, in accordance with the terms and conditions that are set out below.

IMPORTANT! YOUR ACCESS TO OUR SITE AND THE LUMO SERVICES IS SUBJECT TO LEGALLY BINDING TERMS AND CONDITIONS. CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS BEFORE YOU PROCEED.  ACCESSING AND USING OUR SITE AND THE LUMO SERVICES IS THE EQUIVALENT OF YOUR SIGNATURE AND INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND THAT YOU INTEND TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT USE OUR SITE AND/OR THE LUMO SERVICES.

You can view, print, download or save this Agreement at any time.

SOFTWARE TERMS AND CONDITIONS

Software: LUMO Playground and LUMO Playmaker are prepaid, monthly subscription services that provide access to the entire LUMOplay games library (Playground) and all the Motion Maker templates (Playmaker). LUMO Playground and Playmaker subscription content (version 4.1 or higher) are intended for the Windows OS that meets our minimum software, operating system, and hardware specifications.

Subscription Term: Access to the Software is based on a subscription model (each, a “Subscription”).  Depending on your plan, you will receive access to the Software for a set period of time (e.g., monthly or annually), after which your access to the Software will revert to a basic free version, unless you renew your Subscription in accordance with the terms and conditions which are then in effect. 

Number of Seats: The Subscription may be subject to terms which restrict the number of users under each Subscription, as set out in your plan and communicated to you through the Site or otherwise by us, in writing. If you would like to increase the number of users for your Subscription, you may purchase additional seats through your Account.

Right to Access: Subject to the terms hereof, we grant you a limited, non-exclusive, non-transferable right to access the Software and the content displayed or accessed by, through or in the Software, during the term of your Subscription. No other right, interest or licence is granted to you. The features available to you will depend on your plan. We may change features from time to time.

Plan Types: We offer free memberships and paid Subscriptions to the Software. Advertised prices and features may change.  Please consult our Site for our current plans. Please note that while some aspects of the LUMO Services may be offered without fees (for example, LUMOplay Free), all of these service offerings remain subject to the terms and conditions of this Agreement.  LUMOplay Free is offered for use for commercial evaluations and by approved not-for-profit organizations (for example, home installations, public schools, or registered not-for-profit agencies), only.

Fees: You must pay all fees (plus any applicable taxes) during your Subscription period and any renewal periods. If any applicable fees change, such change will take effect on the next regularly scheduled billing period, for your Subscription.

Free Trials and Discounts: We may offer free-trial or discounted Subscriptions. When a free-trial period or discount period ends, you must upgrade to a paid plan in order to continue using the Software. We reserve the right to determine your eligibility for, and the length of, your free trial or discounted Subscription, in our sole discretion.

Refund Policy: Except as set out in this paragraph. All Subscription fees are non-refundable. We will not provide refunds or credits for any partial Subscription periods or unused Software. If you cancel your Subscription, you will not be refunded or credited any portion of your last paid Subscription fee, however, you will be able to access your plan to the end of your Subscription period (subject to deletion in accordance with our retention policies, as outlined below). If you change your Subscription during its term, we will pro-rate your payments and apply an adjustment. This means that if you upgrade to a higher fee Subscription, we will charge you the higher fee for only that portion of the billing period during which your Subscription is upgraded. If you downgrade to a lower fee Subscription, we will credit the difference between the higher fee and the lower fee, for the remainder of the applicable billing period, and apply a credit to your next scheduled payment.

Automatic Renewal: To the extent permitted by applicable law, Subscriptions automatically renew at the end of each Subscription period unless cancelled beforehand. Monthly Subscriptions renew for thirty (30) day periods (subject to adjustment in the case of any month that has more or less than 30 days) and annual Subscriptions renew for one (1) year. You must pay the applicable fee (plus any applicable taxes) when each renewal period starts.

Non-Transferrable:  Your Subscription and your rights thereunder may not be transferred without our written consent, which we may withhold in our sole discretion.

Cancellation: You can cancel your Subscription anytime through your account. Visit LUMOplay.com, sign in to your account, and go to https://www.lumoplay.com/account/home. Choose Modify Subscription or Cancel Subscription to make changes to your services. No refund will be issued for any time remaining in your current Subscription period and you will lose access to any games or custom Motion Maker content that was downloaded under your Subscription when your payments end. This content can be re-accessed by purchasing these items directly through the Site or by renewing your Subscription.

If you breach this Agreement, we may, at our option:

• Terminate your access to the Software immediately, with or without advance written notice.
• Suspend, delete, or limit access to your account or any content within it.
• To the extent permitted by applicable law, retain any amounts payable to you (which you forfeit).
• Switch you to a basic free version of the LUMO Services.

If we delete your account for a breach of this Agreement, you may not re-register without our written permission, which we may withhold in our sole discretion. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement (including if we have switched you to basic free version of the LUMO Services):

• You shall cease all use of any Software. This means you will lose access to any content which you may have saved on your devices or in your account, as and if permitted by the Software.
• We may disable your access to the Software.
• All payments that are due to us as of the effective date of termination of this Agreement shall remain due and owing, by you.

Payment Terms: Your purchase of a Subscription requires you to provide a valid credit card, which will be associated with your account.  You authorize us to automatically debit your credit card in the payment amount and at the frequency associated with your Subscription, as set out on our Site from time to time. Your Subscription will automatically renew at the end of your Subscription period, at the then-applicable cost and billing frequency for your Subscription, unless you cancel your Subscription before it expires.  Information about cancelling your Subscription is set out above.

If you have purchased access to the Software from an authorized reseller, then your payment terms will be dictated by the reseller. Your access to the Software and your Subscription are subject to your continued compliance with the terms set by the reseller, as well as the terms and conditions of this Agreement.

Support: We offer support for your use of the Software, subject to the terms and conditions of our Support Policy. Support and the proper functioning of the Software are conditional upon your adherence to our Best Practices. Click here to see LUMOplay’s Best Practices.

Software, Hardware and Internet Requirements: To use a LUMOplay Free, LUMO Playground, or LUMO Playmaker Subscription, you need a LUMOplay account and a valid Subscription (version 4.1 or higher). You will need a LUMOplay compatible computer, a compatible camera or touch screen, and an internet connection. Click here to see the minimum hardware requirements for LUMOplay. High-speed broadband internet service (5Mbps or greater) is highly recommended, and may be required to download and access certain content, features, and benefits. Service availability and performance may vary by region, hardware being used and other factors external to the LUMO Services.

No Resale Rights: Subscriptions may not be resold. LUMOplay licenses must be purchased and maintained by the original customer, and Subscriptions and LUMOplay licenses cannot be distributed, transferred, or resold to another user. LUMO reserves the right to terminate accounts that are in violation of these terms, which may include directly contacting customers who were sold unauthorized Subscription services, termination of accounts, and revoking of Subscriptions without a refund.

Age of Majority: Subscriptions are only available to account holders who have reached the age of majority in their place of residence.

Revisions to Terms:  Your access to and functionality of the Software, Subscriptions and the terms and conditions of this Agreement are subject to change without notice, including but not limited to Subscription program cancelation, removal of games from the Subscription service, fee changes and limitations on the total number of eligible authorized users per account.

GENERAL TERMS AND CONDITIONS

Accounts and User Interaction: In order to access and use some of the LUMO Services, you must sign up and create an account (the “Account”) using the Site. This requires you to submit certain information, including your name, email address and a password.  The email address you provide will be your email address, and you are solely responsible for maintaining the confidentiality of your password. You are solely responsible for all activities that occur under your Account (even if another person has undertaken the activity, you are deemed to be responsible for the purposes of this Agreement, including, without limitation, its indemnification obligations). Therefore, you should protect your password and make your password difficult for others to guess. When you register, you agree to provide accurate, current, and complete information about yourself and update it as necessary. You will not use another person’s Account.

We reserve the right to refuse registration of Accounts, or to cancel any existing Accounts, that we deem to be inappropriate, in our sole discretion. If you use the LUMO Services, you are solely responsible for maintaining the confidentiality of your Account and password, and you agree to accept responsibility for all activity that occurs under your Account. We are not responsible for updating your Account.  When you provide information to us, you represent and warrant that you have legal authority to do so. In particular, you represent and warrant that: you are entitled to submit the information to us; the information is accurate; and the information is not confidential, in violation of any contractual restrictions or third party rights.

Consent to Electronic Communication: When you visit the Site, use the LUMO Services or send email to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Modification to the LUMO Services and this Agreement: We reserve the right to restrict, suspend, revoke or terminate or otherwise change any aspect of the LUMO Services for any reason whatsoever. We may modify all or one or more parts of this Agreement at any time.  We may provide notice to you of such revisions by means of a general notice on the Site.  Your continued use of the LUMO Services after such revisions are posted will signify your agreement to these revised terms. Therefore, you should visit this page periodically to review this Agreement.  

Ownership of Content: For the purposes of this Agreement, “Intellectual Property Rights” means all industrial and intellectual property rights throughout the world including all copyright right and analogous rights, rights in relation to inventions or discoveries, including patent rights, designs, circuit layouts, trade names, brand names and registered and unregistered trademarks, including service marks and moral rights.

All materials related to the LUMO Services, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and information belonging to other users (the “Content“), and all Intellectual Property Rights related thereto, are now and will remain the exclusive property of us and our licensors.

Except as expressly provided herein, nothing in this Agreement shall be deemed to create a licence in the Content or under any Intellectual Property Rights. You agree not to sell, licence, provide access to, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Content or the LUMO Services more generally. Use of the Content and the LUMO Services for any purpose not expressly permitted by this Agreement is strictly prohibited.

Subject to any separate written agreement you may enter into with us, you retain ownership in and to materials you submit to us, or use the LUMO Services to create, including, without limitation, graphics, videos, reviews, apps, comments and other content (whether owned by you or third parties) (collectively, "Your Content"), but you agree to grant us a royalty-free, sub-licensable, irrevocable licence to use Your Content, as we see fit, in our sole discretion, for the purpose of providing the LUMO Services and in connection with any sale of LUMO in whole or in part, including the assets thereof.  We reserve the right to disclose Your Content, at any time, as is required to comply with applicable laws, and the right to remove any of Your Content that is in violation of the terms and conditions of this Agreement.  You also agree that any rights you assert in and to Your Content will be subject to standards of commercial reasonableness.  You represent and agree that you will not post to the Site or the LUMO Services, any trade secrets, confidential information, intellectual property and other proprietary information of any other person, without authorization from such other people, or any obscene or defamatory content.  Your Content (and our use thereof in accordance with this Agreement) shall not knowingly infringe the intellectual property rights, including copyright, patents, trade-marks or trade secrets, of any third party – please do not use or submit third party content with or to the LUMO Services (as the case may be), if you do not have the necessary rights. You hereby indemnify and hold harmless, us and our owners, subsidiaries, affiliates, representatives, agents, licensors or their respective heirs, administrators, executors, successors and assigns (as the case may be) (collectively, "Others"), from any and all liability or loss, including reasonable counsel fees, which we suffer in connection with any claim or action by reason of a breach of the foregoing representations and warranties.

Trademarks: Certain words, phrases, names, designs or logos on the Site may constitute trademarks, services marks, or trade names that are owned by us or others. The display of such marks on the LUMO Services does not imply that you have been granted a licence by us or others with respect to them.

Complaints: If you believe in good faith that any material that is made available on or through the LUMO Services infringes your copyright, or if you have any other complaints about your use of the LUMO Services, please contact us here. You can also contact us if another user provides content or otherwise uses the LUMO Services in a way that you find objectionable.  While we are not responsible for how others use the LUMO Services, we will make commercially reasonable efforts to make your use of the LUMO Services enjoyable.

Acceptable Uses of the LUMO Services: While you use the LUMO Services, you must comply with all applicable laws, rules and regulations, as well as this Agreement and our Privacy Policy. In addition, your use of the LUMO Services is based on the following rules of conduct.  You will not:

• Post, transmit, or otherwise make available any material that is or may be (a) threatening, harassing, degrading, hateful, or intimidating; (b) defamatory; (c) fraudulent or tortious; (d) obscene, indecent, pornographic, or otherwise objectionable; or (e) an infringement of another person's privacy by disclosing the personal information of another individual without their knowledge and consent.
• Post, transmit, or otherwise make available any material that may violate the proprietary rights of any third party, including, without limitation, copyrighted software, photographs, texts, videos or artwork or any moral rights associated therewith.
• Use the LUMO Services in a manner which will violate or solicit the violation of any applicable local, provincial, territorial, state, national or international law, rule or regulation, including, without limitation, applicable privacy laws the statute known as An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (Canada).
• Use the LUMO Services to post transmit, or otherwise make available any material which would: (a) give rise to criminal or civil liability; (b) encourage conduct that constitutes a criminal offence; or (c) encourage or provide instructional information about illegal activities.
• Impersonate any person or entity, including, but not limited to, any of our representatives; falsely state or otherwise misrepresent your affiliation with any person or entity; or express or imply that we endorse any statement you make without our prior written consent.
• Post, transmit, or otherwise make available any virus, worm, trojan horse, spyware, or any other computer code, file, or program that may, or is intended to, damage or hijack the operation of any hardware, software, server or telecommunications equipment.
• Interfere with or disrupt the LUMO Services.
• Use the LUMO Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party.
• Post, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," investment opportunity, or any other form of solicitation.
• Use the LUMO Services, if you are under 13 years of age, in violation of this Agreement or for commercial purposes, except as part of an installation created on behalf of a customer which uses a paid Subscription. You may not re-sell paid Subscriptions or use free Subscriptions for commercial purposes.

Any person who is found or reasonably suspected to have violated the rules of conduct provided above may be barred from using the LUMO Services, in our sole discretion, and may be subject to other legal remedies.

Other Terms and Conditions: When you access and use the LUMO Services, you (i) consent to us using your payment details in accordance with our Privacy Policy, (ii) accept the terms and conditions of our Support Policy, and (iii) acknowledge that any violation of these terms may result in the immediate termination of your license, Account and Subscription services without notice or refund.  Your access to and use of the LUMO Services may be subject to other terms and conditions described on our Site from time to time.

PRACTICES REGARDING USE AND STORAGE

Storage or Deletion of Content: You agree that we have no responsibility or liability for the deletion of, or the failure to store or to transmit, any information maintained by us.

Limits on Storage: We retain the right to create limits on use and storage, at our sole discretion, at any time, with or without notice. 

Our Access to Stored Content: We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to: (a) satisfy any applicable law, regulation, legal process or governmental request; (b) enforce this Agreement, including investigation of potential violations hereof; (c) detect, prevent, or otherwise address fraud, security or technical issues; (d) respond to user support requests; or (e) protect our rights, property or safety, our users or the public. We will not be responsible or liable for the exercise or non-exercise of our rights under this Agreement.

NO WARRANTY

NO WARRANTY: EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE DO NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES AS TO UNINTERRUPTED OR ERROR FREE TRANSACTIONS, PRIVACY, SECURITY, MERCHANTABILITY, QUALITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE.

Use at Your Own Risk: Access to the LUMO Services is provided "as is" and without warranties of any kind, either express or implied. By accessing and using the LUMO Services, you acknowledge and agree that it is entirely at your own risk. We are not responsible for your reliance on the LUMO Services. While we try to keep the LUMO Services available without interruption, we are not responsible for ensuring the LUMO Services are available or that they will convey information to anyone, on your behalf. If your use of the LUMO Services or the Content results in the need for servicing or replacement of equipment or data, LUMO, its affiliates, and subsidiaries are not responsible for those costs. The LUMO Services include content provided by third parties, including from third-party licensors. All statements and/or opinions expressed in any such third-party content (including but not limited to, user submissions and forum postings), other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. Such materials do not necessarily reflect our opinion. Neither us nor our subsidiaries, affiliates, and their respective directors, officers, employees, agents, service providers, contractors, licensors, licensees, suppliers, successors or assigns, have any responsibility or liability whatsoever to you, or any third party, for the content or accuracy of any third-party materials.

Data Security:  If you upload or transmit confidential, personal information, trade secrets, or other sensitive or restricted content on the Site, you are solely responsible for implementing safeguards beyond the security measures provided by us. You acknowledge that, subject to our compliance with the terms of this Agreement, you upload or transmit this information at your own risk. LUMO DOES NOT WARRANT THAT THE LUMO SERVICES WILL OPERATE ERROR-FREE OR THAT THE LUMO SERVICES ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE LUMO SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.

Third Party Links and Information: The Site and other aspects of the LUMO Services may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by us. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website from the Site, you do so at your own risk, and you understand that neither this Agreement or our Privacy Policy applies to your interaction with third parties in connection with such sites, advertisements, services, special offers, events or activities.

We are not responsible for any materials or information on the Site or any linked website that you may find offensive, undesirable or objectionable.  Further, we specifically disclaim any responsibility or liability for the accuracy, completeness, correctness, timeliness or usefulness of third party information.  You expressly indemnify us from any and all liability arising from your use of any such third-party website, service, or content.

Third Party use of Your Content: Be aware that information you provide to us will be made available to others, as disclosed in our Privacy Policy. We are not responsible for what others do with your content, once you post it on your Account and share it with another user.

Verification: We are not responsible for verifying your identity, the identity of anyone who uses your Account, or the identity or legitimacy of any other user, posting, resume, or profile.

Professional Advice: Any information made available through the LUMO Services is for informational purposes only and is not intended to be nor should it be construed as professional advice.  Users should seek independent professional advice from a person who is licenced and/or qualified in the applicable area before relying on any information found on the Site.

LIMITATION OF LIABILITY, RELEASE AND INDEMNITY

THIS SECTION LIMITS OUR LIABILITY TO YOU AND PROVIDES FOR A RELEASE AND AN INDEMNITY, FROM YOU, IN FAVOUR OF US.  PLEASE READ IT CAREFULLY.

LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL YOU BE ENTITLED TO RECOVER ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES FROM US, ARISING DIRECTLY OR INDIRECTLY FROM: (A) ANY BREACH OF THIS AGREEMENT, FUNDAMENTAL OR OTHERWISE; OR (B) ANY OF OUR NEGLIGENCE, ACTS OR OMISSIONS; OR (C) ANY PROVISION, DUTY OR REQUIREMENT OF ANY STATUTE; OR (D) THE CONDUCT, ONLINE OR OFFLINE, OF ANY USER; OR (E) LOST DATA, BUSINESS INTERRUPTION OR BREACH OF SECURITY; OR (F) ANY DUTY AT LAW OR IN EQUITY.  UNDER NO CIRCUMSTANCES SHALL OUR LIABILITY TO YOU FOR DIRECT DAMAGES YOU SUFFER ARISING OUT OF, RELATED TO OR CAUSED BY THIS AGREEMENT OR YOUR USE OF THE SITE OR THE LUMO SERVICES EXCEED THE FEES YOU PAID TO US DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE LOSS. YOU ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT WE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.

RELEASE:   EXCEPT AS SET OUT HEREIN, YOU AGREE TO RELEASE, REMISE, ACQUIT AND DISCHARGE US FROM ANY CLAIMS, ACTIONS, DEMANDS, COSTS AND EXPENSES OF ANY KIND WHATSOEVER, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, AT LAW OR IN EQUITY, OR BY STATUTE OR OTHERWISE, HOWSOEVER CAUSED, WITH RESPECT TO YOUR USE OF, OR OUR OPERATION OF, THE SITE AND THE LUMO SERVICES.

INDEMNITY:  YOU AGREE TO INDEMNIFY, SAVE AND HOLD US HARMLESS FROM AND AGAINST ANY CLAIMS, ACTIONS, DEMANDS, JUDGMENTS, AWARDS, DECLARATIONS, ORDERS, SETTLEMENTS, DAMAGES (INCLUDING GENERAL, SPECIAL, PUNITIVE, AGGRAVATED OR EXEMPLARY DAMAGES), LIABILITIES, LOSSES, COSTS, CHARGES, INTEREST AND EXPENSES, OR PROCEEDINGS OF ANY KIND WHATSOEVER WHICH MAY BE INITIATED OR PRESENTED BY ANY OTHER PERSONS, INDIVIDUALS OR OTHER LEGAL ENTITIES, AND WHICH ARISE DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SITE AND THE LUMO SERVICES.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU HEREBY AGREE TO PAY ALL COSTS, FEES AND EXPENSES, ON A SOLICITOR AND OWN CLIENT BASIS, WHICH MAY BE INCURRED BY US, RELATING TO YOUR USE OF THE SITE AND THE LUMO SERVICES.

SINCE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITY, SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.

FOR THE PURPOSE OF THIS SECTION, THE TERMS “WE”, "US" AND "OUR" SHALL INCLUDE OUR AFFILIATES AND OURS AND OUR AFFILIATES' RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS.

CONFLICT OF LAWS

Application of Manitoba Laws: We are physically located, and the activities with respect to the LUMO Services and the Site take place, within the Province of Manitoba, Canada. This Agreement will be governed by the laws of the Province of Manitoba and the laws of Canada applicable therein and shall be treated in all respects as a Manitoba contract, without reference to the principles of conflicts of law. You agree that the Site shall be deemed passive websites solely based in Canada and shall not give rise to personal jurisdiction over LUMO, either specific or general, in jurisdictions other than Canada.

Dispute: In consideration for your right to access and use the LUMO Services, you agree that: (i) you will contact us directly and give us the opportunity to try to resolve any and all disputes before you take any action in court, or otherwise; (ii) any and all disputes, claims and causes of action arising out of or connected with the LUMO Services shall be resolved individually, without resort to any form of class action; (iii) any and all claims, judgments and awards shall not include legal fees; and (iv) and to the extent permitted by law, under no circumstances will you be permitted to obtain awards for, and you hereby waive all rights to claim punitive, incidental and consequential damages and any other damages other than for actual out-of-pocket expenses, and any and all rights to have damages multiplied or otherwise increased.

You agree that the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of the LUMO Services, shall be final and binding arbitration, except to the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate any intellectual property right of LUMO, its affiliates or any third party, or any privacy or publicity rights, in which case you acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought by LUMO, its affiliates or the applicable third parties.

Waiver of Rights: You agree to waive any right you may have to: (a) a trial by jury; and (b) commence or participate in any class action against us related to your use of the LUMO Services, the exchange of electronic documents between us or this Agreement and, where, applicable, you also agree to opt out of any class proceedings against us or our licensors. 

Agreement in English: The parties hereto have required that this Agreement and all documents relating thereto be drawn up in English. Nous avons demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.

International Matters: Unless otherwise specified, the Site and the LUMO Services are presented solely for the purpose of providing products and services in Canada. We make no representation that the Site, the LUMO Services and all other materials on the Site are appropriate or available for use in any particular location. Those who choose to access the Site do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

Force Majeure: We will not be liable for failure or delay in our performance of our obligations under this Agreement due to any cause beyond our reasonable control, including, but not limited to: (a) acts of God; or (b) failure or disruptions in third-party-controlled or operated communications facilities; or (c) worms, viruses and other disabling or disruptive software, communications or files. 

Notice: All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the applicable order form (or to such other address as may be designated by a party from time to time in accordance with this Section).

PRIVACY

We respect your privacy. By using the LUMO Services, you consent to your personal information being collected, used, and disclosed in accordance with our Privacy Policy, as we deem reasonably necessary for the provision of the LUMO Services, or for any other purposes that are set out in our Privacy Policy, or as required or permitted by law.

TERMINATION

Investigations and Violations: We reserve the right to investigate you if we suspect you have violated this Agreement and/or any applicable laws, and may seek to gather information from you or about your use of the LUMO Services, in furtherance of this purpose. We may suspend your use of the LUMO Services (and for further certainty, use of the LUMO Services through your Account) if your conduct is under investigation. If we believe, in our sole discretion, that a violation of this Agreement and/or any applicable laws has occurred, we may take any corrective action deemed appropriate, including providing personally identifiable information as part of any legal process.

BY ACCEPTING THIS AGREEMENT, YOU WAIVE AND HOLD HARMLESS LUMO AND ITS SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS, FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY LUMO DURING OR AS A RESULT OF ITS INVESTIGATIONS OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER LUMO INTERACTIVE OR LAW ENFORCEMENT AUTHORITIES.

Suspension of your Use of the LUMO Services by us: If you breach any provision of this Agreement, you may no longer use the LUMO Services. We may at any time and for any reason, with or without cause, and in our sole discretion, immediately suspend or terminate (in whole or in part) your permission to use the LUMO Services, all without any notice or liability to you or any other person. We may take appropriate legal action, including, without limitation, referral to law enforcement or regulatory authority, or notifying the harmed party of any illegal or unauthorized use of the LUMO Services. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the LUMO Services.

We have no obligation, nor any responsibility to any party to monitor the LUMO Services or their use, and do not and cannot undertake to review material that you or other users submit to the LUMO Services. We cannot ensure prompt removal of objectionable material after it has been posted and we have no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party, subject to applicable laws.

No Rights on Termination:  We reserve the right to cease, suspend or interrupt operation of or access to the LUMO Services or any part thereof, and shall not be required to provide any notice in respect of such cessation, suspension or interruption of access, nor shall we have any liability for such cessation, suspension or interruption of access.

Survival:  The provisions of Sections that are by their nature intended to survive termination of this Agreement shall survive termination of this Agreement in perpetuity, including, but not limited to, all Sections concerning proprietary interests, warranty disclaimers, indemnity, and limitations of liability.

MISCELLANEOUS

Waiver: Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.  If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions of this Agreement.

Assignment: This Agreement, and any rights and licences granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

Entire Agreement: Our Privacy Policy, this Agreement and all other documents referenced in this Agreement, together with any amendments and any additional agreements you may enter into with us in connection with the LUMO Services, together shall constitute the entire agreement between you and us concerning the LUMO Services.

Our Contact Information: If you have any questions about this Agreement, or the LUMO Services generally, please contact us here.