Lush Living Terms of Service
Last Modified: September 20, 2018
These Terms of Service (“Terms”) govern your use of the online content, software, services and mobile applications that we provide (collectively, “the Lush Living Platform”). The Lush Living Platform is provided by Lush Living, Inc. (“Lush Living” or “us” or “we”).
These Terms are a binding contract between you and Lush Living, and by creating an account or otherwise accessing or using the Lush Living Platform, you expressly agree to be bound by them, INCLUDING THE AGREEMENT TO ARBITRATE AND THE WAIVER OF CLASS ACTION CLAIMS CLAUSE CONTAINED BELOW. If you do not agree to be bound by these Terms, you may not use the Lush Living Platform.
Your License to Use the Lush Living Platform
We are providing you with access to the Lush Living Platform in accordance with a limited, non-exclusive, non-sublicenseable, non-transferable, revocable license. This license is provided to you as long as you are in compliance with all of these Terms, are not barred from the Lush Living Platform by applicable law, and your account is not terminated by us or by you. If these Terms are not enforceable where you are located, you may not use the Lush Living Platform. Lush Living reserves all rights under these Terms to the extent Lush Living does not expressly grant those rights to you in these Terms.
Canceling Your Account
While we hope you enjoy using the Lush Living Platform, you may cancel your account at any time through the means provided on the Lush Living Platform. We do not refund any fees you may have paid in advance for any rights to access or use the Lush Living Platform. Instead, your cancelation will be effective at the end of the term for which you have purchased access to the Lush Living Platform.
Commercial Terms
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Lush Living account, you can do so at any time by logging into your account and editing your payment information.
Restrictions and Prohibited Uses
The Lush Living Platform is used by many people, and we are proud of the trust our users place in us. We expect, in turn, that our users do not misuse our products and services. Except with our written permission, you may not:
Attempt to impersonate another person or use another person’s Lush Living Platform account information without authorization;
Further distribute or make available the Lush Living Platform for your own business purposes;
Violate or attempt to violate the Lush Living Platform’s security features, including logging into a server that you are not authorized to access, or probing the vulnerability of the Lush Living Platform systems and networks;
Decompile, reverse engineer, publish, or copy the Lush Living Platform;
Use the Lush Living Platform for the purpose of creating a similar product;
Access or search the Lush Living Platform by any means other than our publicly supported interfaces;
Interfere with others’ use and enjoyment of the Lush Living Platform;
Use the Lush Living Platform or any trademarks, player names, team names, trade names, service marks, copyrights, or logos of Lush Living or any other entity, in unsolicited mailings, spam material, contests or surveys, or to create the false or misleading impression that such items are associated with you;
Violate any third party’s rights, including intellectual property or privacy rights;
Threaten, stalk, harm, or harass others; or engage in activity in connection with the Lush Living Platform that is fraudulent, abusive, defamatory, illegal or otherwise inappropriate.
Engaging in prohibited uses is grounds for immediate termination of your access to the Lush Living Platform account, and may also subject you to civil or criminal penalties.
Intellectual Property
The Lush Living Platform is protected by U.S. and international intellectual property laws and you agree to abide by them. Except as we may authorize, you may not download, copy or store the Lush Living Platform content in any form outside of the Lush Living Platform and you may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, or perform any the Lush Living Platform content. You agree that all data and algorithms used in connection with providing the Lush Living Platform to you are “trade secrets” as defined by applicable law. You agree to comply with reasonable written requests from us to help us in protecting our proprietary and intellectual property rights in the Lush Living Platform. All intellectual property rights in the Lush Living Platform are, as between you and Lush Living, the sole and exclusive property of Lush Living.
Some of the Lush Living Platform features either now or in the future may allow you to post or submit content and materials for publication on the Lush Living Platform (“Your Content”). As between you and Lush Living, you own any intellectual property rights to Your Content, but you agree that we can use, reproduce, modify, adapt and publish Your Content for purposes of enabling us to offer the Lush Living Platform or the features you have elected to use. You are responsible for Your Content, and acknowledge that once published, we cannot always remove it.
We appreciate when you provide us feedback through customer service or by email or social features, and you hereby agree that we may use any feedback, comments, or suggestions without any obligations to you. For purposes of clarity, you hereby assign all intellectual property rights to us in any feedback, comments, or suggestions, you provide to us, regardless of whether such information would be considered confidential or proprietary to you.
Data and Information You Upload
You agree not to upload to the Lush Living Platform any data, information or other content for which you do not have all the rights necessary to make such use of that data, information or content. Without limiting the generality of the foregoing, you agree that you will not upload any data you obtained in a manner that violates any applicable law or that breaches any duty of confidentiality.
You acknowledge that any data storage functionality of the Lush Living Platform is not intended for the storage of Social Security numbers, credit or debit card numbers, financial account numbers, driver’s license numbers, medical information, health insurance information, sensitive data about personal characteristics or other personal data that may pose a risk of harm to the individual if improperly disclosed (collectively, “Sensitive Personal Information”). You agree not to upload or otherwise submit any Sensitive Personal Information to the Lush Living Platform. You agree that we will have no responsibility or liability with respect to any such Sensitive Personal Information that is processed, transmitted, disclosed, or stored in connection with the Lush Living Platform.
DISCLAIMERS, ACKNOWLEDGEMENTS AND ACCEPTANCE OF RISK
YOU AGREE THAT USE OF THE LUSH LIVING PLATFORM IS AT YOUR OWN SOLE RISK AND THAT THE LUSH LIVING PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LUSH LIVING AND ITS AFFILIATES, OFFICERS AND/OR EMPLOYEES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LUSH LIVING PLATFORM, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. Some jurisdictions do not allow the disclaimers in this paragraph, so they may not apply to you.
WE STRIVE TO MAINTAIN THE LUSH LIVING PLATFORM ON A COMMERCIALLY REASONABLE BASIS BUT CANNOT GUARANTEE THAT YOU WILL HAVE ACCESS TO THE LUSH LIVING PLATFORM AT ALL TIMES.
YOUR USE OF THE LUSH LIVING PLATFORM IS FOR INFORMATIONAL AND PERSONAL USE ONLY, AND YOU SHOULD NOT RELY ON THE RESULTS OF ANY INFORMATION YOU OBTAIN THROUGH YOUR USE OF THE LUSH LIVING PLATFORM. YOUR PERFORMANCE IN CONNECTION WITH USING THE LUSH LIVING PLATFORM SHOULD NOT BE USED AS AN INDICATOR OF YOUR ACTUAL ATHLETIC ABILITY NOR YOUR OVERALL HEALTH. YOU HEREBY ACCEPT ALL RISK OF INJURY TO PERSONS PROPERTY, AND OF LOSS OF LIFE THAT MAY OCCUR ARISING FROM OR RELATING TO YOUR USE OF THE LUSH LIVING PLATFORM, AND AGREE, ON BEHALF OF YOURSELF AND YOUR HEIRS AND ASSIGNS, TO HOLD LUSH LIVING HARMLESS FROM ALL SUCH INJURIES AND LOSS.
Warranty of Sufficient Physical Fitness
You represent and warrant that you are in sufficiently good physical condition to engage in the strenuous physical activity required to use the Lush Living Platform, or to engage in any of the activities demonstrated, discussed, tracked, or otherwise relating to the Lush Living Platform. You further represent and warrant that you have consulted with a qualified physician who has determined that you are in sufficient form to engage in the strenuous physical activity involved with the activities featured on the Lush Living Platform. IF YOU ARE NOT IN SUFFICIENT PHYSICAL CONDITION TO ENGAGE IN THE STRENUOUS PHYSICAL ACTIVITY REQUIRED TO USE THE LUSH LIVING PLATFORM, YOU SHOULD NOT ENGAGE IN THE ACTIVITIES CONNECTED WITH THE LUSH LIVING PLATFORM.
LIMITATION OF LIABILITY
IN NO EVENT SHALL LUSH LIVING OR ITS AFFILIATES, OFFICERS AND/OR EMPLOYEES BE LIABLE WITH RESPECT TO THE LUSH LIVING PLATFORM FOR, (I) IN THE AGGREGATE, ANY AMOUNT IN EXCESS OF THE FEES, IF ANY, PAID BY YOU TO SUBSCRIBE TO THE LUSH LIVING PLATFORM; (II) LOST PROFITS, LOST DATA, OR FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE ARISING OUT OF YOUR ACCESS TO OR USE OF THE LUSH LIVING PLATFORM; (III) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR (IV) ANY EXPECTATION BY YOU, INCLUDING BUT NOT LIMITED TO EXPECTATION RELATING TO ATHLETIC PERFORMANCE OR SUCCESS, BASED ON YOUR USE OF THE LUSH LIVING PLATFORM.
YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN LUSH LIVING AND YOU. YOU UNDERSTAND THAT THE LUSH LIVING PLATFORM WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. Some jurisdictions do not allow the limitations in this section, so they may not apply to you.
Indemnification
You will defend, indemnify and hold harmless Lush Living, its affiliates, officers and/or employees, including by paying costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your access to or use of the Lush Living Platform, Your Content, or the violation of these Terms by you.
Agreement to Arbitrate and Waiver of Class Action Claims
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE LUSH LIVING PLATFORM WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at: Lush Living, Inc., insert address. The arbitration will be conducted by the American Arbitration Association (AAA) in Chicago, Illinois, under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Applicable Law
By using the Lush Living Platform, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Illinois, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and Lush Living.
General
(a) Severability and Waiver. If any part of these Terms is held invalid or unenforceable, the remaining provisions of these Terms will remain in full effect and an enforceable term will be substituted reflecting yours and our intent as closely as possible. Either party’s failure to enforce any term or condition in these Terms is not a waiver of its right to do so later.
(b) Change Policy. The Terms may be updated from time to time. If we make material changes, we will provide advance notice to you either by email, by posting a notification on the Lush Living Platform or by posting updated Terms on the Lush Living Platform at least 30 days in advance of the effective date of the updated Terms. Please note that unless otherwise provided by applicable law, your continued use of the Lush Living Platform following the effective date means that you agree with, and consent to be bound by, the updated Terms
(c) Miscellaneous. The Terms are the complete and exclusive statement of the mutual understanding of the parties and supersede all previous written and oral agreements relating to the subject matter of these Terms. If there is any conflict between these Terms and any additional terms, conditions, and rules posted by Lush Living on the Lush Living Platform, these Terms shall govern, unless otherwise indicated. Sections of these Terms which by their nature should survive any termination of these Terms will indeed so survive