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TERMS OF SERVICE

Terms of Service

 

 

Last updated: October 9, 2019

 

 

This Terms of Service,together with our Privacy Policy, COPPA Policy and, if applicable, the Smartphone End User License Agreement (collectively, the “Agreement”) govern LUK INC.’s (“LÜK”, “We”, or “Our”) relationship with you, the subscribing entity (the “Subscriber”) and any individual granted a license by the Subscriber (each an “Authorized User,” and together with the Subscriber, the “Customer”) using our mobile application software (the “App”), and our Site http://lukinc.com/ (the “Site”). Collectively, the Site together with our Appare(the “LÜK Services”).

 

 

By using the LÜK Services, you accept and agree to theAgreement. If you disagree with anything here, you’re welcome to contact us at help info@lukinc.com, and we’ll be happy to address any questions or concerns.

 

 

IF YOU ARE UNDER 13, YOU CANNOT CONSENT TO, OR ACCEPT THE AGREEMENT. PLEASE IMMEDIATLEY ASK YOUR PARENT AND/OR GUARDIAN TO SUBMIT A SIGNED COPY OF THE COPPA CONSET FORM TO info@lukinc.com TO CONTINUE USING THE LÜK SERVICES.

 

 

1. The LÜK Services
We will be responsible for hosting the App and the Site, and you will be responsible for providing the resources necessary for yourself and all Authorized Users to access and utilize the LÜK Services. The App and the Site will be accessible 24 hours per day, 7 days per week, 99.5% of the time, except for (i) maintenance, (ii) required repairs, and (iii) any loss or interruption of the LÜK Services caused by any reason where the failure to perform is beyond the control and not caused by the negligence of the non-performing party.

 

1.1 App/Site Errors.
We will use commercially reasonable efforts to correct any reproducible errors that prevent the App and the Site from performing with the then-current specifications as promptly as possible. Unless otherwise agreed to in writing, support offered by LÜK will be limited to providing email, online, and phone support.

 

1.2 App/Site Documentation.
We’ll provide you with access to guides (the “Documentation”) for the App and Site, as may be updated from time to time. The Documentation will solely be used in connection with your use of the App and Site, and you will not remove any copyright, trademark, or other notices from the Documentation.

 

1.3 Fees and Payment Terms.


(a) We offer (unless otherwise noted or agreed to in writing) monthly subscription plans that are priced based on the plan you choose. LÜK may offer a discount for annual subscription. We will notify you in advance of any changes to your current plan.

 

(b) Upon subscribing and providing your payment information, unless otherwise stated or agreed in to in writing, your account will be debited and all payments will be billed to you in U.S. dollars. Payments can be made using a credit card (AMEX, Visa, or Mastercard), debit card, or by check.

 

(c) If your payment information is not valid as provided, we have the right to suspend your account and refuse your use of the LÜK Services until the payment information is updated. We may also participate in programs supported by your card provider (e.g., updater services and recurring billing programs) to try and update your payment information, and you authorize us to continue billing your account with the updated information obtained by us.

 

(d) Unless otherwise agreed to in writing, payments will be due on the first day of the month. You will pay any sales, use, or other tax related to the fees for the LÜK Services, if applicable.

 

2. License Grant; Restriction on Use

LÜK grants you a non-exclusive, revocable, worldwide, royalty-free, non-transferable license (the “License”) to access and use the Site to monitor, interact, communicate with, or receive alerts from, your child, student, or bus driver, in real time. You will not, and will not attempt to, directly or indirectly (a) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, or any files contained in or generated by the LÜK Services; (b) copy, modify, adapt, or translate the LÜK Services, or otherwise make any use, resell, distribute, or sublicense the LÜK Services other than in connection with the Agreement; (c) access the LÜKServices on behalf of a competing service or permit any individual acting on behalf of a competing service to access the LÜKServices for any reason; (d) remove or modify any proprietary marking or restrictive legends placed on the Site; or (e) use the LÜK Services in violation of any applicable law or regulation. You may not sub-license the License without LÜK’s prior written consent.

 

2.1 Authorized Users and Client Users


(a) An Authorized User has a license to use LÜK Services; provided that each account shall not have more than one (1) additional Authorized User. An additional fee will be applied for a such additional Authorized User.

 

(b) The Agreement does not give you any title, ownership, or interest (including any intellectual property rights) in the Site, the App, or the content in the LÜKServices.

 

3. Registration and Accounts
Users are required to keep their account information current so LÜK can ensure you receive timely notices that may be important to you and your continued use of the LÜK Services. LÜK will have no liability for failure to deliver notices that result from inaccurate, incomplete, or out of date account information.

 

You will not create an account for anyone other than yourself (or your child, if applicable) without permission, or any other false or fraudulent pretenses.

 

You will not share your password or let anyone else who is not an Authorized User access your account and will not do anything else that would endanger the security of your account. Please notify us of any breach of security by emailing us at info@lukinc.com. You will use best efforts to prevent unauthorized access to or use of the LÜK Services. You agree to notify us immediately of any such unauthorized access or use.

 

LÜK is not responsible for revoking access to the LÜK Services if the status of an Authorized User changes. It is the responsibility of the Subscriber to remove all access to former Authorized Users.

 

4. Confidential Information
LÜK Confidential Information (“LÜK Confidential Information”) includes the App, all source code, the Documentation, and all non-public information or material about our legal or business affairs, financing, customers, or data. Customer Confidential Information (“Customer Confidential Information”) means information pertaining to your personal data.

 

4.1 Use and Disclosure of LÜK Confidential Information.
You will (i) only use the LÜK Confidential Information to perform obligations and rights under the Agreement, (ii) restrict disclosure of LÜK Confidential Information within the receiving party’s organization to only individuals that need to know and are required to comply with your obligations under the Agreement; and (iii) not disclose LÜK Confidential Information to any third party unless authorized by LÜK in writing.

 

4.2 Protection of LÜK Confidential Information.
You will protect the confidentiality of LÜK Confidential Information using at least the degree of care that youuse to protect yourown confidential information (but no less than a reasonable degree of care). If you receive a request to disclose the LÜK Confidential Information under a judicial or governmental order, you will not disclose the LÜK Confidential Information without first giving us notice of the request and sufficient opportunity to contest the order, to the extent legally permissible.

 

4.3 Use and Disclosure of Customer Confidential Information.
We will (i) only use the Customer Confidential Information to perform obligations and rights under the Agreement, (ii) restrict disclosure of Customer Confidential Information within our organization to only those employees or contractors that need to know and comply with our obligations under the Agreement; and (iii) not disclose Customer Confidential Information to any unaffiliated third party unless authorized by the Customer under the Agreement.

 

4.4 Protection of Customer Confidential Information.
We will protect the confidentiality of any Customer Confidential Information disclosed by Customer using at least the degree of care that we use to protect our own confidential information but no less than a reasonable degree of care. The specific information we collect and how we use this data is detailed in our Privacy Policy and/or COPPA Policy. If we receive a request to disclose the Customer Confidential Information under a judicial or governmental order, we will not disclose the Customer Confidential Information without first giving you notice of the request and sufficient opportunity to contest the order, to the extent legally permissible.

 

5. Representations and Warranties

5.1 Power and Authority.
If you are using the LÜKServices on behalf of an organization, you agree to these terms for that organization and warrant that you have the authority to bind that organization to the Agreement. In that case, “you” and “your” in the Agreement will refer to that organization.

 

5.2 No Other Warranties.
EXCEPT AS PROVIDED ABOVE UNDER THE HEADING LÜKSERVICES, THE LÜKSERVICESARE PROVIDED “AS IS,” WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND UNINTERRUPTED OPERATION. SOME STATES MAY NOT ALLOW THESE LIMITATIONS, SO THEY MAY NOT APPLY, AND THE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

 

6. Limitation of Liability and Indemnification

 

6.1 Limited Liability.
To the fullest extent permitted under law, (a) in no event will we, our affiliates, officers, employees, agents, directors, investors, or licensors be liable for any indirect, special, incidental, punitive, exemplary, or consequential (including loss of use, data, business, or profits) damages, losses, expenses, including reasonable attorneys’ fees, rights, claims (including third party claims), actions of any kind, and injury (including death) regardless of legal theory, even if LÜK has been warned of the possibility of such damages and even in the case of claims based on negligence or strict liability, and (b) the maximum liability for all claims relating to the LÜKServices will not exceed the aggregate amount of fees paid and payable to us during the three month period preceding the date on which the claim arises.

 

LÜK will not be held responsible for any use, disclosure, modification, or deletion of Subscriber’s data that is transmitted to, or accessed by a product that is not within the LÜKServices.

 

You understand and agree that LÜK is not a party to any Agreements entered into between you and an Authorized User (if any). Additionally, LÜK is not responsible for regulating the conduct of Authorized Users and you specifically acknowledge that we are not liable to any conduct issues between you and an Authorized User to the maximum extent permitted by law.A Subscriber is solely responsible for reviewing the accuracy of any and all information input into theLÜK Services.You agree to waive all rights to interpose any claims, deductions, setoffs, or counterclaims of any nature (other than compulsory counterclaims) in any action or proceeding with respect to the Agreement or any matter arising therefrom or relating hereto or thereto.

 

6.2 Indemnity.
You agree to indemnify and hold LÜK and its affiliates, agents, employees, and licensors harmless from any claim, demand, loss, costs, or expense, including attorneys’ fees, made by any person arising out of your violation of the Agreement, or any other person’s rights, including but not limited to infringement of any copyright or violation of any proprietary or privacy right. Under no circumstances, including but not limited to a negligent act, will LÜK or its affiliates or agents be liable for any damages of any kind that result from the use of, or the inability to use, the LÜK Services.

 

7. Force Majeure
Neither you nor LÜK will be liable for any delay, interruption, or any other failure to perform under the terms of the Agreement to the extent caused by a condition that was beyond the party’s reasonable control (ie. natural disasters, governmental decrees, etc.) for as long as such conditions persist.

 

 

8. Termination
You may stop using the LÜKServices at any time and such termination will take effect at the end of your current billing cycle. We reserve the right to suspend or end the LÜKServices at any time, with or without cause, and with or without notice. If we suspend or terminate your use of the LÜKServices, we’ll let you know in advance to help you retrieve your data, though in some cases (such as a flagrant violation of our terms of service, or a court order), we may have to terminate immediately. In the event that we terminate or suspend your use of the LÜKServices, we will refund any remaining unused fees for the current billing period.

 

We believe that your data is your own and preserving your access to your data is important to us. If your account is suspended, terminated, you stop using the LÜKServices, or we discontinue any part of the LÜKServices, where possible, we will provide you with reasonable advance notice and an opportunity to export your data out of the LÜK Services. If you would like to have your data modified or deleted and you prefer not to do it on your own, please contact us and we will do so. If you need any help, please contact our support team at info@lukinc.com.

 

In the event of termination or expiration of the Agreement, you will pay us for all amounts payable as of the effective date of termination or expiration. All rights and licenses granted by LÜK will immediately cease, and any LÜK Confidential Information in your possession will be immediately destroyed. All information associated with your account may be irrevocably deleted from the LÜK Services.

 

The sections entitled Termination, Confidential Information, Intellectual Property, Representations and Warranties, Limitation of Liability, and Miscellaneous will survive any termination or expiration of the Agreement.

 

9. Intellectual Property

 

9.1 Feedback.
By providing comments and suggestions to us, or recommendations for improvements or changes to our services or our Site, you grant us, under all right, title, and interest in these comments and suggestions, a non-exclusive, royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use these comments and suggestions or to incorporate it into our Site.

 

9.2 Our Rights.
The LÜKServices, including our features, functionality, and appearance, are owned by LÜK and are protected by United States and international copyright, trademark, patent, trade secret, and other applicable intellectual property, property, and proprietary rights laws. You agree not to copy, modify, create derivative works of, republish, publicly display, sell, offer to sell, or exploit any of our protected materials (unless it’s expressly permitted by our Site). If you have questions whether or how to use material or information on our Site or the Documentation, please contact us at info@lukinc.com.

 

10. Third Party Services
In providing the LÜKServices, we also make certain services and integrations available to you from third parties, which are not under LÜK’s control nor endorsed by LÜK. If you use these services from third parties, you do so at your own risk and you have a separate contractual relationship exclusively with that third party for those services.

 

11. Publicity
Except as prohibited by law, upon payment for the LÜKServices, LÜK may list you as a customer and include your name and/or firm on a list of clients on LÜK’s Site, investment materials, and sales collateral distributed to potential customers. You may opt-out from this provision by sending an email to info@lukinc.com.

 

12. Miscellaneous

 

12.1 Waiver.
LÜK’s failure to exercise or enforce its rights under the Agreement will not be a waiver of those rights or sections. LÜK can waive certain rights, but only if made in writing and signed by an authorized representative.

 

12.2 Relationship.
Each party is an independent contractor of the other party, and nothing in the Agreement should be considered a partnership or a joint venture or cause either party to be an agent of the other.

 

12.3 Entire Agreement.
The Agreement represents the entire Agreement between you and LÜK and governs your interactions with LÜK and use of the LÜKServices. It supersedes all prior agreements (including prior versions of theAgreement). To the extent you and LÜK have entered into a separate written agreement, that agreement will govern any provision of this Agreement superseded by such separate agreement.

 

12.4 Severability.
If a court of competent jurisdiction determines that a section of the Agreement is invalid, illegal, or unenforceable for any reason, that section will be limited or amended to the minimum extent necessary, and all of the other sections of the Agreement will remain in full force and effect.

 

12.5 Assignability.
LÜK, in its discretion, may assign the Agreement to any subsidiary or affiliate, or under a sale, merger, or transfer of LÜK to another entity. To the extent possible, we will provide you notice if there is such a transfer so that you can choose to deactivate your account or terminate the use of the LÜKServices before the transfer.

 

12.6 Transferability.
If Customer elects to replace you as the representative with ultimate authority for the Customer account, you agree to take any actions reasonably requested by us or Customer to facilitate the transfer of authority to a new representative of Customer.

 

12.7 Modification.
LÜK, in its sole discretion, reserves the right to amend the Agreement from time to time. You can see the date of our last change to the Agreement at the top of this page. Any updates will be made available here and will be effective immediately. We will use commercially reasonable efforts to let you know of any significant changes, but by continuing to use the Service after any changes to the Agreement, you accept and agree to the revised Agreement. LÜK also reserves the right to modify or discontinue any feature associated with the Service, with or without notice. Continued use of the Service following any modification constitutes your acceptance of the modification.

 

12.8 Third Party Solutions.
LÜK relies on third party vendors and partners to provide the necessary infrastructure, software, storage, and related technology solutions to offer the LÜKServices. You acknowledge and agree to LÜK’s use of these vendors and partners. In particular, LÜK relies on a combination of web hosting and data storage services, including those provided by __________________________. .

 

12.9 Choice of Law and Venue.
The laws of the State of New Jersey(even if your use is outside the State of New Jersey) will govern the Agreement without giving effect to conflict of law principles, and you agree to submit to the exclusive jurisdiction and venue of thestate and federal courts located in New Jersey.

 

12.10 Ethical Obligations.
You and/or your organization are solely responsible for complying with all applicable ethical regulations when using any part of the LÜKServices, including any data services offered by LÜK.

 

12.11 Binding Arbitration.
Both parties shall use their best efforts to settle in good faith and through amicable negotiations any disputes which may occur between them arising out of or relating to the Agreement; the existence, validity, termination, interpretation of any term hereof; and disputes regarding your use of the LÜKServices. The only forum and remedy for any disputes and claims relating to or arising out of the Agreement or any or all of the LÜKServices will be final and binding arbitration, except that LÜK may seek injunctive relief in state or federal court in Middlesex or Somerset County, New Jerseyfor any violation of the Agreement by the Customer. If LÜK seeks injunctive relief, you agree that arbitration is not an adequate remedy at law and LÜK may seek injunctive or other relief.

 

12.12 Dispute Process.
If you have any dispute or claim relating to or arising out of the Agreement, including use of the App, you agree that before you commence any proceeding or request for arbitration or take any action that is intended or would reasonably be expected to harm LÜK or its reputation, you will first contact LÜK about the problem at info@lukinc.com. You agree to provide LÜK with 45 calendar days to investigate the dispute and attempt to provide a consensual resolution. You agree that you will negotiate and act in good faith during this period.

 

12.13 Class Action/Jury Trial.
All claims must be asserted in the Customer’s individual capacity and not as a plaintiff or class member in any class action, collective action, private attorney general action, or other representative proceeding. This waiver also applies to class arbitration, and unless LÜK consents, the arbitration may not consolidate more than one person’s claims. You also agree that under the Agreement, you and LÜK are each waiving the right to a trial by jury.

 

12.14 Arbitration Process.
To the extent arbitration remains necessary, all arbitration will be conducted by the American Arbitration Association under its Commercial Arbitration Rules, unless you are an individual or otherwise qualify for its Supplementary Procedures for Consumer-Related Disputes.

 

12.15 Notices.
Any notices to you will be sent to the e-mail address you used for registration. Any notices to LÜK should be sent to info@lukinc.com. You consent to the use of electronic notices under the Agreement.