LAVIOR TERMS OF USE

Last Updated: June 7, 2021

 

LAVIOR TERMS OF USE

 

IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. BY SIGNING UP TO LAVIOR’S SERVICES, OR BY PLACING AN ORDER FOR LAVIOR’S PRODUCTS (“PRODUCTS) ONLINE OR VIA TELEPHONE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, WHICH CONSTITUTE A LEGALLY ENFORCEABLE AGREEMENT GOVERNING YOUR USE OF THE LAVIOR ONLINE SERVICE LOCATED AT WWW.LAVIOR.COM & WWW.LAVIORMEDICAL.COM (THE “SERVICE” OR “SERVICES” OR “SITE” OR “SITES”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18, HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE, YOU HAVE THE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, AND YOU ARE NOT A DIRECT COMPETITOR OF OURS (OR OTHERWISE REPRESENT, DIRECTLY OR INDIRECTLY, THE INTERESTS OF A DIRECT COMPETITOR). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18 AND HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE.

 

AS USED IN THIS AGREEMENT, THE TERM “YOU” OR “USER” MEANS THE ENTITY OR PERSON RESPONSIBLE FOR THE ACCOUNT ESTABLISHED PURSUANT TO THIS AGREEMENT AND EACH USER ACCESSING THE SERVICE BY MEANS OF A VALID ACCOUNT ESTABLISHED BY YOU OR LAVIOR RESPECTIVELY (HEREINAFTER “YOU” OR “COMPANY”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, THE TERM “YOU” MEANS ALL EMPLOYEES OF YOUR COMPANY WHO ARE GIVEN ACCESS TO THE SERVICE. IF YOU DO NOT HAVE THE REQUISITE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, OR IF YOU ARE A DIRECT COMPETITOR OF OURS (OR REPRESENT THE INTERESTS, DIRECTLY OR INDIRECTLY, OF A DIRECT COMPETITOR) YOU MAY NOT USE THIS SERVICE, EXCEPT WITH LAVIOR’S PRIOR WRITTEN CONSENT.

 

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT LAVIOR DOES NOT PROVIDE ANY FORM OF MEDICAL TREATMENT, DIAGNOSIS, MEDICAL ADVICE, MEDICAL CARE, MEDICAL OPINION.  THE CONTENT OF THE LAVIOR SERVICES IS NOT INTENDED AND NOR DOES IT SERVE AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.  THE CONTENT PRESENTED BY THE SITES INCLUDING WITHOUT LIMITATION ANY IMAGES, INFORMATION, MATERIAL, GRAPHICS ARE FOR INFORMATIONAL PURPOSES ONLY AND THE PROVISION OF SUCH CONTENT DOES NOT CONSTITUTE NOR DOES IT CREATE A DOCTOR-PATIENT RELATIONSHIP, AND IT DOES NOT CONSTITUTE A MEDICAL DIAGNOSIS, MEDICAL OPINION, OR TREATEMENT OF ANY CONDITION OF ANY PERSON.  LAVIOR DOES NOT GUARANTY THE EFFECTIVENESS THE LAVIOR PRODUCTS FOR ANY MEDICAL PURPOSE.  LAVIOR HEREBY DIRECTS YOU TO SEEK THE ADVICE OF YOUR PHYSICIAN, A MEDICAL DOCTOR OR OTHER DULY QUALIFIED AND LICENSED MEDICAL AND/OR HEALTHCARE PROVIDER WITH ANY QUESTIONS THAT YOU MAY HAVE REGARDING ANY MEDICAL CONDITION WHATSOEVER.  YOU SHOULD CAREFULLY READ ALL INFORMATION PROVIDED BY THE MANUFACTURERS OF THE LAVIOR PRODUCTS AS WELL AS ON THE PRODUCT LABELS AND PACKAGING PRIOR TO USING ANY LAVIOR PRODUCT.  ALTHOUGH LAVIOR PRODUCTS ARE REGISTERED WITH THE FOOD AND DRUG ADMINISTRATION (FDA), THEY MAY NOT HAVE BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION.  IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY LAVIOR DIRECTS YOU TO CALL 911 IMMEDIATELY. 

 

BY ACCEPTING THIS AGREEMENT VIA THE SITE, OR BY USING THE SITE, YOU HAVE AGREED TO BE BOUND BY THESE TERMS OF USE AS SET FORTH HEREIN AND AGREE THAT THESE TERMS OF USE CONSTITUTE A LEGALLY ENFORCEABLE AGREEMENT AGAINST YOU.  ADDITIONALLY, YOU AGREE THAT A RECORD OF YOUR ACCEPTANCE SHALL BE TREATED, FOR THE PURPOSES OF VALIDITY, ADMISSABILITY, AND ENFORCEMENT, THE SAME AS WRITTEN EXECUTION.  YOU ACKNOWLEDGE AND DO HEREBY AGREE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS OF THIS AGREEMENT, AND FURTHER ACKNOWLEDGE AND HEREBY AGREE THAT YOU HAVE BEEN GIVEN THE OPPORTUNITY TO OBTAIN INDEPENDENT LEGAL COUNSEL WITH RESPECT TO THIS AGREEMENT PRIOR TO ACCEPTING IT. 

 

These Terms apply to the Lavior Products & Services.

 

This User Agreement (the “Agreement”), the original user registration, any subsequent billing changes, whether written or submitted online via Lavior’s service, and any materials available on the Sites specifically incorporated by reference herein, as such materials, including the terms of this Agreement, as may be updated by Lavior from time to time in its sole discretion pursuant to the provisions of this Agreement.  You and Lavior may individually be referred to as a party (‘party’) or collectively as the parties (“parties”) in this Agreement. 

 

Lavior Food and Drug Administration Statement.  The statements made within this website have not been evaluated by the U.S. Food and Drug Administration. These statements and the products of Lavior are not intended to diagnose, treat, cure or prevent any disease. 

 

Lavior Product Disclaimer.  Individual results may vary. These statements have not been evaluated by the FDA. Products mentioned on this website are not intended to diagnose, treat, cure or prevent any disease.

 

Lavior Customers. You may subscribe to one or more of Lavior’s Services and purchase Lavior Products in accordance with the pricing set forth in the purchase order, or other agreement between Lavior and You for the Lavior Products and Services.

 

Lavior Products.  Lavior Products may only be available in limited quantities and are subject to return or exchange only according to Lavior’s return policy, if any, currently in effect.  Lavior reserves the right, but is under no obligation, to restrict the sale of Lavior Products and Services to any person, geographic area, or jurisdiction in Lavior’s sole and absolute discretion.  The Lavior Products are subject to change at any time without notice and Lavior reserves the right to discontinue the sale of any Lavior Product at any time.  Any offer, incentive, and rebate for any Lavior Product shall be void where prohibited. 

 

Lavior User Account Access.  Lavior will assign You one or more login IDs and passwords that will enable You to access the Services. Each user ID is unique to the assigned individual and may not be shared with others, including other personnel. You shall take reasonable precautions to protect against theft, loss or fraudulent use of such IDs and passwords, and You are solely responsible for any losses arising from another party’s use of such IDs and passwords, either with or without Your knowledge. Provided Your account is in good standing, Lavior may provide one or more login IDs and passwords to other employees of You or Your parent or affiliated company. Such additional logins IDs and passwords may be subject to an additional charge and in the sole and absolute discretion of Lavior.

 

Your Access to the Lavior Services.  Lavior will provide You online access to and use of the Services via the Internet by use of Your internet browser.  The Services will be hosted on a server that is maintained by Lavior or its designated third-party supplier or data center. You are solely responsible for obtaining and maintaining at your own expense, all equipment needed to access the Services, including but not limited to Internet access and adequate bandwidth.

 

Prohibited Use of Lavior Services.  No competitors or future competitors are permitted access to the Lavior Sites. You agree that You will not copy, record, publish, extract, scrape, replicate, reproduce, use or resell for any competing commercial purpose any information and/or content on the Lavior Site. You agree that You will not reverse engineer, disassemble or decompile the Services or cause or permit the reverse engineering, disassembly or decompilation of the Services. All users of Services and visitors to the Lavior websites agree not to use any manual or automated means (of any type) to capture or extract data in bulk from Lavior’s websites.  If You do so, then You agree that Lavior is suffering irreparable injury and You agree to pay all reasonable attorney's fees and costs incurred in enforcing these provisions. Lavior may, at its sole and absolute discretion, immediately terminate access to the Services should Your conduct fail to conform to any of these Terms.

 

Your Compliance with Laws. You agree (i) to abide by all applicable local, state, national, and international laws and regulations; (ii) not to use the Services for illegal purposes; (iii) not to impersonate any person or entity or engage in any fraudulent business practice, including generating invalid impressions, clicks, or other actions; (iv) not to display or transmit any unlawful, harmful, hateful, racially, ethnically or objectionable material of any kind; (v) not to distribute in any way files that contain viruses, corrupted files, or any other similar programs; and (vi) not to interfere or disrupt Lavior’s operations or functionality. If Lavior reasonably believes You are engaged in any of these activities, Lavior may immediately suspend or terminate Your access to any of the Services. Lavior may also take any self-help remedies necessary to prevent such conduct, including, but not limited to, deleting information from Your account on behalf of those individuals who lodge complaints with Lavior or Lavior’s web-hosting company. You are still responsible for full payment of any fees due and owing pursuant to an order or any invoice corresponding thereto, even if your access to the Services is suspended or terminated for Prohibited Uses.

 

You represent and warrant that, Your affiliates, and their employees, agents, representatives, and any entity or persons having effective control over them, is not subject to or resident in any country subject to economic or trade sanctions by the U.S. State Department and/or OFAC or are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this section shall be deemed a material breach of this Agreement and Lavior may immediately terminate this Agreement and any and all Services corresponding thereto.

 

You further warrant that You will not engage in any commercial bribery, kickback schemes, or other forms of improper payments to any person, private or public, and agrees that You will not create or submit any false, inaccurate, or misleading information or other business documents related to any use of the Site or Services.  You will permit, upon request, Lavior reasonable access to Your books and records and/or to conduct periodic or ad hoc audits, as Lavior deems necessary.  Upon request, you agree to provide Lavior with a written certification attesting your compliance with the foregoing anticorruption requirements.

 

Lavior Site Features. The Lavior platform allows for the purchase of Lavior Products, Services, and other related communications among You, third parties and Lavior.  There is a variety of additional functions and features that provide You with a more robust set of account management and tools based on the applicable Lavior Products and Services that You consume and/or purchase on the Sites.  Lavior reserves the right to update the features/terms of the Sites from time to time in its sole and absolute discretion, effective upon posting the amended Terms at the domain or subdomains www.Lavior.com and www.LaviorMedical.com. Where the prior version of the Terms was posted or by communicating these changes through any written contact method Lavior has established with You.    

 

Lavior Services.   The Lavior Services include but are not limited to the following features and functions: Sale of Lavior Products, Customer Service, and other Services as made available by Lavior to You.

 

Fees & Charges. You agree to pay all fees and other charges in accordance with Your purchase order or subscription agreement at the time of purchase.  Payment shall be by credit card or e-check unless otherwise agreed to in writing between You and Lavior.

 

The fee for the Lavior Products will be equal to the fees currently in effect under the current Lavior schedule of fees for the Products. If You are a monthly subscriber, the initial fee will be payable the same day as an order, and, thereafter, Lavior will automatically bill Your credit card, debit card or bank account on the same day each month as the day of the first payment. If You are a yearly subscriber, the fees will be billed annually and are non-refundable. Lavior reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days’ prior notice to You.

 

If You update Your payment information in your Lavior account, Lavior will charge the latest account provided by You. You represent that You have the legal right to use any payment account or methodology that You use to purchase Products and Services from Lavior. You agree to update billing and account information within three (3) business days of any change to applicable payment information, as well as to Your legal name, street address, e-mail address, and the names and telephone numbers of an authorized billing contact and authorized account administrator. If the contact information You provide is false or fraudulent, Lavior reserves the right to terminate Your access to the Service, in addition to any other legal remedies. All payments shall be in United States currency and are final.

 

In the event of termination of this Agreement, You agree to pay the balance due on Your account (plus any applicable late payment charges). You agree that Lavior may charge such unpaid fees and charges to Your credit card, debit card, or bank account, or otherwise bill/invoice You for such unpaid fees and charges.

 

You may reasonably and in good faith dispute an invoiced amount, that incorrectly lists Products or Services, fees, other than those listed on the applicable purchase order, within thirty (30) days after receipt, provided that You will promptly pay the undisputed portion of the invoice and will only withhold payment of the disputed portion until the dispute is resolved.  The parties will negotiate in good faith to resolve any payment dispute within ninety (90) days.

 

You are responsible for all taxes, charges or duties including, without limitation, sales, use, value added, royalty or withholding taxes imposed by a federal, state, provincial, local or other government entity on any Products and Services provided under this Agreement, excluding taxes based on Lavior’s net income.

 

Late Payments.  If Lavior engages an attorney to advise Lavior in connection with any late payment or fees hereunder, You will reimburse Lavior promptly upon request for all reasonable attorneys' and other reasonable expenses incurred by Lavior in collecting any amount due. 

 

Limited License. Subject to these terms and conditions, and any additional terms contained in a written agreement between you and Lavior, if any, Lavior will provide You with a worldwide, non-exclusive, non-transferable and revocable license, without the right to grant sublicenses, to access and use the Services, as upgraded from time-to-time. You may use the Services only for purposes of purchasing Lavior Products and consuming Lavior Services. Except for the foregoing license, no other rights in the Services are granted to You hereunder, and the Services are and will remain the sole and exclusive property of Lavior and its licensors, if any, whether the Services are separate or integrated with any other products, services or otherwise.     

 

Lavior’s Use of Data.  Information and data provided by You on the Lavior platform will only be used by Lavior as reasonably required for operating the Site and providing the Products and the Services and in accordance with Lavior’s Global Privacy Policy and all applicable data privacy laws and regulations, including the EU General Data Protection Regulation (GDPR)  (collectively, “Privacy Policy”). You and Lavior agree to comply in all material respects with the Global Privacy Policy, and to provide such help and cooperation as is reasonably necessary or requested to the other to comply with the same. You acknowledge and agree that if You send or otherwise provide information (including but not limited to data) to others using the Services, the recipients of such information may copy or redistribute such information, for instance by using standard interfaces to transfer data into external systems, by exporting data electronically into files or reports, by printing or any other means. For the avoidance of doubt, You are responsible for obtaining any legally required consents to process personal data, or to process and transfer data in compliance with any other legally permitted conditions for processing personal data. Furthermore, to the extent Lavior processes Customer Personal Data of Data Subjects located in the EEA or Switzerland on behalf of You or Your Affiliate, or You or Lavior are otherwise subject to EU Data Protection Laws, the Parties will comply with the provisions of the Privacy Policy.

 

Lavior’s Return of Your Content. Upon Your written request made within 30 days after the effective date of expiration or termination of this Agreement, Lavior will, provided You are not in breach of any of its obligations under the Agreement and upon Your payment of the applicable fees, make available to You for download a file of Your content in its then current format.  After such 30-day period, Lavior shall have no obligation to maintain or provide any content and shall thereafter, unless legally prohibited, delete all content maintained in its production systems, provided however, that Lavior may retain archival copies of content on offline backup media for a reasonable period of time not to exceed two (2) years following expiration or termination of any relationship with Lavior.

 

User Provided Content. You agree that You are solely responsible for Your actions, and the content of Your transmissions and activity on the Services. You represent and warrant that all data, materials and content You provide for use on the Services (the “User Content”), as well as any user provided media is accurate, current, is owned by You or You have the right to grant the license set forth below in these Terms, and that provision and/or use of the User Content hereunder does not violate or infringe the intellectual property, privacy or publicity rights of any third party, and that all placements of User Content have been approved for Lavior’s use. You shall defend, indemnify and hold Lavior harmless from and against all claims, damages, liabilities, fines, costs and expenses including reasonable legal fees incurred by Lavior or which are agreed by Lavior to be paid by way of settlement or compromise, arising out of any third-party claim due to a breach of the foregoing representations and warranties or any violation of applicable law by You. You shall not be entitled to settle or compromise any such claim made against Lavior without Lavior’s prior written consent, such consent not to be unreasonably withheld. 

 

Notwithstanding anything to the contrary in these Terms You hereby acknowledge and agree that Lavior may use all User Content, including that which is specific to You, for the purpose of creating aggregated and/or anonymized statistics concerning use of the Services (the “Aggregate Data“). Lavior will be the sole owner of the Aggregate Data and, notwithstanding anything to the contrary, shall be free to use and disclose the Aggregate Data for any commercial purposes including, but not limited to, publicizing usage of the Products and Services, providing information on general industry trends, and providing benchmarking data to Lavior customers. Aggregate Data shall not identify You as the source of any specific piece of data.  

 

Except as otherwise set forth herein, You retains any and all rights it may possess to your content provided to Lavior by You through the use of the Services or collected from others by Lavior on Your behalf.  You grant Lavior a limited, non-exclusive right and license to (i) use the User Content (including copyright, trademark, patent, publicity or other rights) for Lavior to operate the Services and to disclose the User Content to third-party service providers to operate the Services, and (ii) subject to any applicable third party copyright, trademark or other rights, to use images of Users’s Content on the Site for the purposes of advertising and promoting Lavior, including without limitation in marketing, training or investment materials.

 

Lavior’s Production Environment. Your access is limited to the version of the Services in Lavior’s production environment. Lavior may from time to time at its sole discretion update the Services, including but not limited to the display, and reserves the right to add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements without liability except regarding intellectual property rights of You. Your use of the Services after the terms have changed constitutes acceptance of the new terms. Lavior reserves the exclusive right, at its sole discretion, to determine all matters concerning the Lavior Services and may change the format and page placement of all data at any time without prior notice. The Lavior Services may contain links to third party websites. These linked sites are not under the control of Lavior, and Lavior is not responsible for the content of any linked site.

 

Confidential Information.  For purposes of these Terms, “Confidential Information” means any information, regardless of form, proprietary to or maintained in confidence by either party, including, without limitation, any data, information, technical data or know-how relating to discoveries, ideas, inventions, software, designs, specifications, processes, systems, diagrams, research, development, business plans, strategies or opportunities, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by either party or on its behalf whether directly or indirectly, orally, visually, or in writing, to the other party or any of its employees or agents. The terms and conditions of any order for Lavior Products or Services shall be deemed Confidential Information of both Lavior and You.

 

Both You and Lavior may use and copy such confidential information as is necessary to perform their obligations under this Agreement and for no other purpose except that Lavior may use Your Confidential Information for purposes other than the provision of Service only in an aggregated, anonymized form, such that You are not identified. You and Lavior may disclose such confidential information to their employees and You and Lavior may disclose to its affiliates, both on a “need-to-know” basis, provided that You and Lavior shall ensure that any such employees or affiliates are subject to obligations of confidentiality with similar effect to this section.  Lavior may also disclose Your Confidential Information on a need-to-know basis to its subcontractors who are providing all or part of the Service.  

 

The restrictions in this section “Confidential Information” does not apply to any information which: (i) at the time of disclosure or thereafter is generally available to and known by the public or any third party (other than as a result of an unauthorized disclosure directly or indirectly by the non-disclosing party),(ii) was or becomes available to the non-disclosing party on a non-confidential basis from a source other than the disclosing party, (iii) has been independently acquired or developed by the non-disclosing party without violating any of its obligations under this Agreement.

 

The recipient party may disclose Confidential Information pursuant to the requirements of a governmental agency or operation of law, provided that it gives the disclosing party reasonable advance notice sufficient to contest such requirement of disclosure, unless it is prevented from providing such notice by the government agency or operation of law.

 

The obligations of Lavior set forth in this Section shall not apply to any suggestions and feedback for product or service improvement, correction, or modification provided by You in connection with any present or future Lavior Product or Service, and, accordingly, neither Lavior nor any of its clients or vendors shall have any obligation or liability to You with respect to any use or disclosure of such information.

 

The Parties hereby acknowledge and agree that that these confidentiality terms replace and supersede any separate non-disclosure agreement, if any, of other confidentiality provisions to which the parties may have agreed prior or contemporaneous to agreeing to these Terms of Use.

 

Lavior’s Disclaimer of Warranty.  ALL SERVICES GOVERNED BYTHESE TERMS ARE PROVIDED “AS IS” AND ‘AS AVAILABLE’ BASIS.  LAVIOR DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LAVIOR DOES NOT REPRESENT OR WARRANT BUT WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE SERVICES ARE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND THAT THE SERVERS USED FOR THE SERVICES WILL BE FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND CONTENT.  ACCORDINGLY, LAVIOR CANNOT AND DOES NOT GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. IN ORDER TO PROTECT YOUR CONTENT, LAVIOR MAY SUSPEND YOUR USE OF THE SERVICES IMMEDIATELY, WITHOUT PRIOR NOTICE, PENDING AN INVESTIGATION, IF ANY BREACH OF SECURITY IS SUSPECTED. YOU ACKNOWLEDGE THAT THE SERVICES AVAILABILITY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, AND ELECTRONIC COMMUNICATIONS. LAVIOR IS NOT RESPONSIBLE OR DEEMED TO BE IN DEFAULT FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, OR UNAVAILABILITY RELATED TO YOUR APPLICATIONS, YOUR CONTENT, OR YOUR EQUIPMENT, OR THE ACTS OR OMISSIONS OF ANY USER OF THE SERVICES. 

 

Limitation of Liability.  Lavior’s liability to You, Your affiliates, registered agents, assignees, registrants or any third-party claims, for claims seeking indemnity, or for any recoverable losses, damages, or litigation and attorneys’ fees or costs arising with respect to the Lavior Site, these Terms shall be limited to the amount of your actual direct damages, not to exceed (in the aggregate for all claims) the total annual amount paid to Lavior at the time of the incident giving rise to liability. If no fee is paid to Lavior, the Lavior retains no liability. These limitations of liability will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in these Terms or any purchase order.

 

IN NO EVENT WILL LAVIOR OR ITS PARTNER WEBSITES BE LIABLE OR INDEMNIFY YOU FOR: (i) ANY DAMAGES CAUSED BY YOUR FAILURE TO PERFORM YOUR RESPONSIBILITIES; (ii) ANY CLAIMS OR DEMANDS OF THIRD PARTIES OR (iii) ANY LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF DATA, LOST SAVINGS, COST OF COVER OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SITE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF LAVIOR OR ITS PARTNERS  HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

You shall defend, indemnify and hold harmless the Lavior from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (i) Your or any Lavior platform user’s use of the Service or collection, use, disclosure, or cross-border transfer of any Your content and data; (ii) Your or any Lavior platform user’s use of the Service or collection, use, disclosure, or cross-border transfer of any Your content and data; or (iii) the breach or alleged breach by You of any of Your obligations, representations, or warranties under this Agreement; provided in any such case, that Lavior (a) gives written notice of the claim promptly to You (except that Lavior’s failure to promptly notify You will not limit, impair, or otherwise affect Lavior’s rights under this section unless You are prejudiced by that failure and then only to the extent of the prejudice); (b) gives You sole control of the defense and settlement of the claim (except You may not settle any claim without Lavior’s prior written consent, unless the settlement includes a full and final release of all claims against Lavior and does not impose any obligations on Lavior); (c) provides to You reasonable assistance (including reasonable access to information in the possession or control of Lavior); and (d) has not compromised or settled such claim.

 

Account Liability.  You are solely responsible for the actions of its employees and agents that use the Services on Your behalf, including without limitation for related communications with other users of the Services. You assume all risk in dealing with other users of the Services and shall be responsible for all communication with each other and if applicable, separately executing contracts with any other party. Any dispute regarding any product or service, or failure to provide agreed products and services must be resolved directly between You and such third party(ies). Lavior is not responsible for any breach by either party of the terms of any transaction or associated transaction-related activities. 

 

Choice of Law & Arbitration.  This Agreement shall be governed and construed in accordance with the laws of Florida, excluding that State’s choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise, shall likewise be governed by the laws of Florida, excluding that State’s choice-of-law principles.  If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  Claims shall be heard by a single arbitrator. The place of arbitration shall be Miami-Dade County, Florida.  The arbitration shall be governed by the laws of the State of Florida, exclusive of that State’s choice of law provisions and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise, shall likewise be governed by the laws of Florida, excluding that State’s choice-of-law principles. In making determinations regarding the scope of exchange of electronic information, the arbitrator(s) and the parties agree to be guided by The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. Time is of the essence for any arbitration under this agreement and arbitration hearings shall take place within 90 days of filing and awards rendered within 120 days.  Arbitrator(s) shall agree to these limits prior to accepting appointment. Each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

 

Equitable Remedies.  You and Lavior acknowledge and agree that (a) a breach or threatened breach by such party of any of its obligations under this Agreement would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and (b) if a breach or a threatened breach by such party of any such obligations occurs, the other party hereto will, in addition to any and all other rights and remedies that may be available to such party at law, at equity, or otherwise in respect of such brief, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to (i) post a bond or other security, or (ii) prove actual damages or that monetary damages will not afford an adequate remedy.  Each party to this Agreement agrees that such party shall not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this section.

 

Lavior’s Intellectual Property. You acknowledge that, except for Your Content, Lavior or its licensors retain all copyright, trademark, trade secret, patent and other proprietary and intellectual property rights to the Services (including without limitation to any software and modifications thereto) and to any related documentation and marketing materials, regardless of whether such intellectual property notices (i) appear in the Services or in related documentation or materials, or (ii) have been filed with applicable governmental agencies. The Services and all equipment, infrastructure, websites and other materials provided by Lavior in the performance of Services will at all times remain the exclusive, sole and absolute property of Lavior or its licensors. Subject to these Terms, You may access and use the Services solely for conducting Your own business operations or Your clients’ business operations outsourced to You, and not in any resale capacity.  

 

Your Intellectual Property.    Lavior acknowledges that You retain all copyright, trademark, trade secret, patent and other proprietary and intellectual property rights to the information You provide when using the Services. You shall retain ownership and control over all of Your service marks and trademarks. Nothing in these Terms will directly or indirectly be construed to assign and/or grant Lavior any right of ownership, title or interest in the information owned by You, or any intellectual property rights relating thereto, except as to display such information within the Services.

 

Digital Millennium Copyright Act.  To the best of Lavior’s knowledge, all material published by Lavior on its web pages is done in full agreement with the original copyright owners. If third party comes across a situation where a third-party suspects that this may not be the case, in accordance with the Digital Millennium Copyright Act (DMCA), that party shall contact Lavior as follows:

 

Lavior, Inc.
ATTN: General Counsel
815 Ponce De Leon Blvd Suite 101
Coral Gables, Florida 33134
+1 (844) 474-2552

info@lavior.com

 

Pursuant to the DMCA, the notice must include the following information: (i) identification of the copyrighted work the person is claiming has been infringed; (ii) identification of the material the person is claiming is infringing the copyrighted work and information reasonably sufficient to permit Lavior to locate the material. Please provide a link if possible; (iii) the person’s address, telephone number, and email address; (iv) a statement that the person has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (v) a statement that the information the person provided in the notification is accurate, and under penalty of perjury, that the person is the copyright owner or that the person is authorized to act on behalf of the copyright owner; (vi) the person’s physical or electronic signature.  Lavior cannot take action regarding the person’s notice unless all of the required information is provided.  In accordance with the DMCA, Lavior reserves the right to terminate or disable, in appropriate circumstances and at Lavior’s sole and absolute discretion, Your account if You are determined to be a repeat offender.

 

Force Majeure.  Lavior will not be in default or otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond its reasonable control, including any act of God, criminal acts, distributed denial of service attacks, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, pandemics, riots, failures or delays in transportation or communications, or any act or failure to act by You, Your employees, agents, or contractors.  The You and Lavior will promptly inform and consult with each other as to any of the above causes that, in their judgment, may or could be the cause of a substantial delay in the performance of their respective obligations hereunder.  Lavior is not liable for excusable delay.

 

Third Party Beneficiaries.  These Terms are not intended to, and do not confer any rights, benefits or remedies upon any person other than the parties. 

 

Notice.  Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other Party at the addresses set forth on this Agreement (or to such other address that the receiving Party may designate from time to time in accordance with this section).  Each Party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile, or electronic mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid).  Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section. 

 

Assignment.  Except for assignment to a party’s affiliate (any entity which directly or indirectly controls, is controlled by, or is under common control with such party), or in the case of a merger, acquisition or sale of all or substantially all assets not involving a direct competitor of the other party, neither party may assign or otherwise transfer any right or obligation set forth in the Agreement without the other party’s prior written consent, not to be unreasonably withheld or delayed.

 

Publicity.  You agree that Lavior may use Your organization’s name and logo to identify You as a customer of Lavior on Lavior’s website, in investor documents (whether or not filed with the Securities and Exchange Commission), and as a part of a general list of Lavior’s customers for use and reference in Lavior’s corporate and marketing literature.  Additionally, You agree that Lavior may issue a press release identifying You as a Lavior customer, subject to Your prior approval which will not be unreasonably withheld or delayed. 

 

Entire Agreement.  These Terms supersede any prior agreement or understanding between the parties whether oral or written in relation to its subject matter and may only be modified by a written amendment signed by authorized representatives of each party.  Any additional or conflicting terms contained in any third-party purchase order, proposal or other document shall be deemed to be rejected by Lavior without need of further notice of objection, even if such document is acknowledged or accepted by Lavior, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Lavior. The provisions of these Terms shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. Lavior’s failure to exercise or enforce any right, power or remedy under these Terms shall not operate as a waiver thereof.

 

Conflicts.  In the event of any conflict between a provision contained in these Terms of Use and a provision contained in any purchase order, the provisions in the purchase order shall control (provided, however, that the fact that a provision appears in a purchase order but not these Terms of Use, or in these Terms of Use but not the applicable purchase order, shall not be deemed to be a conflict for purposes of this sentence).