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Terms of Service

Last updated: March 26, 2025

1. Introduction

1.1. Agreement. Please read carefully: These terms of service (the “Terms”) constitute a legally binding agreement between you (“you” or “your”) and Loomly, LLC ("Loomly”, "we", “us” or “our”). These Terms govern your access and use of our websites where these Terms are posted and our content, products, and services (collectively, the “Service”). The Service allows you to, among other things, schedule, manage, upload and facilitate social media content (the "Social Media Content") via Calendars (as defined below), and related analytical, interaction management and URL shortening tools. THESE TERMS CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. 

1.2. Important Notice. THESE TERMS CONTAIN A BINDING, INDIVIDUAL ARBITRATION REQUIREMENT AND CLASS ACTION WAIVER, WHICH MEANS YOU AND LOOMLY AGREE TO RESOLVE MOST DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND NOT BY MEANS OF A CLASS ARBITRATION, A CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR A JURY TRIAL (SEE SECTION 13 (DISPUTE RESOLUTION; BINDING INDIVIDUAL ARBITRATION)). YOU MAY OPT OUT OF THE ARBITRATION REQUIREMENT WITHIN 30 DAYS OF ACCEPTING THESE TERMS; INSTRUCTIONS FOR OPTING OUT ARE IN SECTION 13 (DISPUTE RESOLUTION; BINDING INDIVIDUAL ARBITRATION) BELOW.

1.3. Categories of Users. Individuals and entities who use the Service fall under one of the following categories:

  1. “Visitor” which is defined as an individual who accesses or views publicly available content on loomly.com without logging into an account.
  2. “Owner” which is defined as an individual or legal entity with an active Subscription Plan (as defined below) or free trial. An Owner may (i) create a digital timetable used to create, manage, and schedule Social Media Content (a “Calendar”); (ii) create, edit, preview, view, delete, schedule, approve, boost with advertising, assign and comment upon content on their Calendars; (iii) invite Collaborators (as defined below) to their Calendars, up to the permitted number of Collaborators under their Subscription Plan; (iv) assign and modify the roles of all invited Collaborators; and (v) connect social and advertising accounts to their Calendars.
  3. “Collaborator” which is defined as an individual or legal entity to whom the Owner grants access to its Calendar with one of the following roles and related rights and restrictions:
    1. An “Editor” may (1) create, edit, view, delete, schedule, approve, boost with advertising, assign, and comment upon content on a Calendar to which it has been granted access to by the Owner; (2) invite other Collaborators to such Calendar, up to the permitted number of Collaborators under the Owner’s Subscription Plan; (3) assign and modify the role of Contributors, Clients, and Viewers using such Calendar; and (4) connect social media and advertising accounts to such Calendar.
    2. A “Contributor” may create, edit, view, assign, and comment upon content on a Calendar to which it has been granted access to by the Calendar’s Owner or Editor.
    3. A “Client” may (1) view, delete, assign, schedule, and comment upon content on a Calendar to which it has been granted access to by the Calendar’s Owner or Editor; (2) invite other Collaborators to such Calendar, up to the permitted number of Collaborators provided under the Owner’s Subscription Plan; (3) connect social media and advertising accounts to Calendars; and (4) manage its own role.
    4. A “Viewer” may only view and comment upon content on a Calendar to which it has been granted access to by the Calendar’s Owner or Editor, and may manage its own role.

1.4. Binding Agreement. By taking an action indicating acceptance of these Terms, or using the Service, you agree to these Terms and you agree to comply with and be bound by any applicable specific, supplemental or third-party licenses or terms when using the Service. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THESE TERMS, DO NOT ACCESS AND IMMEDIATELY STOP USING THE SERVICE, CANCEL ANY ACCOUNT, AND IMMEDIATELY UNINSTALL AND DELETE ANY COPIES OF ANY SOFTWARE INCLUDED IN THE SERVICE IN YOUR POSSESSION.

1.5. Language. Where other language versions of the Terms exist, the English version will control.

1.6. Privacy. The Privacy Policy provides information on the personal data collected about you in connection with the Service, for which purposes it is processed, and for how long it is retained. Where an Owner acts as data controller for certain data processing activities, such Owner’s privacy policy applies.

1.7. Help Center. If you have questions or complaints with respect to these Terms or the Service, visit our Help Center.

2. Eligibility

2.1. Age. THE SERVICE IS NOT AVAILABLE TO INDIVIDUALS UNDER THE AGE OF 16. If you are an individual over the age of 16 but under the legal age of majority in your state of residence, your parent or guardian must review and agree to be bound by these Terms on your behalf and must supervise your use of the Service. YOU MAY NOT ORDER, ACCESS OR USE THE SERVICE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH US OR YOUR PARENT OR LEGAL GUARDIAN HAS NOT AGREED TO THESE TERMS AND YOUR USE OF OR ACCESS TO THE SERVICE, OR (C) ARE PROHIBITED BY APPLICABLE LAW FROM ORDERING, ACCESSING OR USING THE SERVICE.

2.2. Legal Entities. If you are using the Service, opening an account or accepting these Terms on behalf of a legal entity: (a) you agree to these Terms on behalf of yourself and such legal entity, (b) you represent and warrant that you are authorized to agree to these Terms on such entity’s behalf and to bind such entity to these Terms, and (c) all references to “you” throughout these Terms other than this sentence will mean such legal entity.

2.3. Jurisdiction. You may only use the Service in jurisdictions authorized by Loomly. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

2.4. Account. Although these Terms apply regardless of whether you create or use an account, the use of certain features of the Service may require you to have an account. In such cases, you may not share or permit others to use your account credentials. You state that you will provide only true, current and accurate information when you create your account or provide us with the required information, and that you meet the eligibility requirements under these Terms. You will promptly update any information contained in your account if it changes. If required, you must use a strong password for your account that is unique to the Service and not used by you in any other service. You must maintain the security of your account, and promptly notify us and modify your log-in information if you discover or suspect that someone has accessed your account without your permission. To the maximum extent permitted by law, you are responsible for anything that happens through your account. When you choose a username or otherwise create a nickname, you agree not to use any name that is unlawful, fraudulent, deceptive, harmful, defamatory, inaccurate, abusive, offensive, threatening, hateful, violent, harassing, discriminatory, or racist, or any name that infringes or violates another person’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You agree not to impersonate any person or misrepresent your identity or affiliation with any person. You further agree not to purchase, sell, rent or give away your account. We reserve the right to reject, require that you change, or reclaim usernames or nicknames that are not in compliance with these Terms.

2.5. Device. If you use or access the Service with any mobile phone, tablet, laptop, desktop computer or other device not owned by you, you must have the device owner’s permission to do so. You will be responsible for complying with these Terms, whether or not you own the device.

3. Right to Use the Services

3.1. Service License. Subject to your compliance with these Terms and your payment of any applicable Subscription Fee, we grant you a non-exclusive, limited, non-transferable, non-sublicensable and revocable license to use the Service. If you are a Visitor, the license to the Service in this section is for your personal, non-commercial purposes only. Except as expressly permitted by these Terms, you cannot: (a) rent, lease, lend, sell, distribute, sublicense, or otherwise transfer or make available the Service; or (b) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, alter, mimic, adapt, translate, or create derivative works of the Service, any updates, content or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open source components included with the Service).

3.2. Service Level. We will make commercially reasonable efforts to provide the Service during the Subscription Period (as defined below). We do not guarantee the availability of the Service. You agree that the Service may be disrupted, unavailable, or inoperable, including due to (a) unforeseeable circumstances, or foreseeable circumstances that despite our commercially reasonable measures to prevent are not within our ability to fully prevent (including, but not limited to, widespread internet disruptions, interruption of services by our service providers that was not caused by us, and malicious third-party acts), (b) emergency security measures, or (c) planned downtime of which we will use commercially reasonable efforts to give you advance notice. We are not liable for any disruption or loss that you may suffer as a result of any unavailability of the Service in accordance with this Section.

3.3. Prohibited Uses. You will not use the Service if you are not eligible to use the Service in accordance with Section 2 and will not use the Service other than for their intended purpose. You agree that you will not, and will not permit any person accessing the Service using your account or device to do any of the following:

  1. Use the Service in any manner not permitted by these Terms;
  2. Use the Service for any purposes prohibited by applicable laws or regulations, or in any manner that violates or infringes upon the rights of others;
  3. Import, submit, upload, publish, post, communicate, or transmit to others in any way whatsoever, any unlawful, fraudulent, deceptive, harmful, defamatory, inaccurate, abusive, offensive, threatening, hateful, violent, harassing, discriminatory or racist content; content containing explicit nudity, pornography, or sexually explicit material; graphic content depicting acts of cruelty, violence, assault, or harm towards humans or animals, including imagery of abuse, slaughter, or death; content promoting or facilitating illegal activities, such as drug use, terrorism, or human trafficking; content promoting or facilitating the sale or distribution of illegal or prohibited goods or services, including drugs, weapons, or similar items; content supporting terrorist organizations; content encouraging or promoting self-harm, suicide, or other harmful behaviors; misinformation; or any content that infringes or violates another person’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity); 
  4. Copy (except as expressly permitted by these Terms) or modify the Service;
  5. Frame, mirror, display or incorporate the Service or any portion into any other program, site, service or product;
  6. Use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any of our networks, technologies, products or services;
  7. Use any data mining or similar automated or manual data extraction, gathering or scraping methods in connection with the Service;
  8. Circumvent, bypass, defeat, modify, tamper or disable any content protection system, digital rights management, security feature or functionality in the Service; 
  9. Use the Service to distribute unsolicited promotional or commercial content or other unwanted or mass solicitations or spam;
  10. Misuse any reporting, flagging, complaint, dispute, or appeals process, including by making groundless or frivolous submissions; or
  11. Allow or encourage others to do any of the foregoing.

3.4. Trials and Betas. We may offer optional access to features on a free, trial, beta, or early access basis (“Trials and Betas”) and we may perform other product validations techniques. Use of Trials and Betas is permitted only for your internal evaluation during the period set out in the Trials and Betas offer, as applicable. You acknowledge that Trials and Betas may be inoperable, incomplete or include features that are not released outside of Trials and Betas. We offer no warranty, indemnity, or support for Trials and Betas and any product validation techniques we may perform. We may, at our sole discretion, terminate your use of Trials and Betas or discontinue any Trial and Betas at any time for any reason.

3.5. Retention, Back-ups and Export of your Data. You are responsible for regularly backing up your data. Your data will be available to you to export or download depending on your Subscription Plan and only during the period of time specified in such plan, after which we have no obligation to maintain, and we may delete your data from the Service. This does not affect Section 8.

4. Subscription Plan and Automatic Renewals; Fees and Payments

4.1. Subscription Plan. One or more features of the Service may require a subscription plan (“Subscription Plan”) which may automatically renew. The license period for the applicable Subscription Plan (“Subscription Period") may vary, for example, with weekly, monthly or annual terms as set out in the Service’s purchasing web page. Upon expiration of the Subscription Period, your Subscription Plan will automatically renew at the then-current Subscription Fee (except as provided below) for a Subscription Period equal in length to the then-expiring Subscription Period, unless (a) the Subscription Plan is terminated prior to the end of the Subscription Period in accordance with these Terms, or (b) either you or we elect to not renew in accordance with these Terms. If you purchase a Subscription Plan, you authorize us to charge your designated payment method for your initial Subscription Period and automatically upon each renewal with no further action required by you.

4.2. Non-Renewal. You may elect to not renew a Subscription Plan by logging into your account and canceling your Subscription Plan before the end of the then-current Subscription Period, in which case you will not receive a refund or credit for the Subscription Fee you already paid for such Subscription Period. We may elect to not renew a Subscription Plan by providing notice to you before the end of the then-current Subscription Period. Expiration of the Subscription Plan due to any non-renewal will be effective as of the end of the then-current Subscription Period. Unused add-ons, features, or any other items of your Subscription Plan will not be reimbursed and do not rollover to any subsequent Subscription Period or renewal term, if applicable. You can downgrade your Subscription Plan or reduce your add-ons in your account, but such downgrades will not become effective until the end of your current Subscription Period, and you will not receive a refund or credit for such downgrade or reduction of features. Downgrading your Subscription Plan may cause loss of features, data, or functionality of the Service available to you, and we will not be responsible for any such loss.

4.3. Service Modification and Discontinuation. We have no obligation to provide updates, upgrades, or future versions of the Service. We may, at our sole discretion, update, upgrade, remove, suspend, discontinue, or otherwise modify any feature, functionality, technical requirements, portion of the Service, or Subscription Plan, and these modifications may be automatically released at any time for any reason. In such cases, if reasonably necessary or if required under applicable law, we will give you reasonable notice. Modifications or discontinuations may result in adjustment to Subscription Fees, including price increases, which will be effective upon your next renewal. We are not obligated to replace or substitute any modified or discontinued features, functionality, portion of the Service or Subscription Plans. Your continued use of the Service after any modifications or discontinuations take effect indicates your acceptance of those changes. If any such modification or discontinuation would reasonably be expected to have a significant adverse impact on your access or use of the Service, we will notify you in advance and you will be entitled to terminate these Terms free of charge during the notice period, unless the modification or discontinuation is necessary to comply with legal or regulatory obligations.

4.4. Fees. You agree to pay all fees, including any Subscription Fees, and any applicable taxes for the use of the Service in the manner, currency, and on the dates set out in the Service’s purchasing web page or upon the renewal of your Subscription Plan. All fees are exclusive of taxes, unless otherwise specified by us.

4.5. Fee Changes. We may change any applicable fees and charges, including any Subscription Fees, in our sole discretion, but any such changes will not apply retroactively and, for Subscription Plans, such changes will become effective upon their renewal. We will give you reasonable prior notice of any change in Subscription Fees to give you an opportunity to not renew your Subscription Plan in accordance with Section 4.2 before such change becomes effective. We may offer and discontinue free subscriptions at any time at our sole discretion.

4.6. Taxes. We will charge any applicable taxes in connection with the Service or any fees under these Terms as required by law. You may not withhold any taxes or charges or set off any amounts due to us. We reserve the right to withhold the payment of any amounts owed to you under these Terms and dispose of them as required by law, in each case as determined by us, or to seek later payment from you of any amounts on taxes uncollected and unremitted.

4.7. Late Payments. In case of late or non-payment of the outstanding Subscription Fees or any other fees, we reserve the right to revoke any credit terms or other payment accommodation which might have been previously afforded to you, accelerate your entire account balance, and suspend or terminate your access to your account and to any portion or all of the Service or, at our discretion, downgrade your Subscription Plan. Downgrading your Subscription Plan may cause loss of features, data, or functionality of the Service available to you, and we will not be responsible for any such loss. This Section does not affect any other rights and remedies we may have under these Terms or at law.

4.8. No Refunds. Except as otherwise expressly stated in these Terms or elsewhere in the Service, all fees and taxes are non-refundable.

4.9. Credit Card Payment Fee. Payments with credit cards may be subject to an additional processing fee as specified in the Service purchasing web page or at checkout.

5. Content

5.1. Uploading Content. The Service or one or more Promotions may provide features that allow you to upload, store, receive, create, modify, share or publish Social Media Content or other kind of content (collectively, the “Content"). By making Content available to third parties through the Service, you hereby agree that such Content will be made public worldwide. We assume no responsibility for how others interact with or use your Content.

5.2. Ownership of Content. We do not claim any ownership rights to the Content. You or your licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Content.

5.3. License to Loomly. In order to allow us to operate, provide, and improve the Service and our technologies (and to develop new ones), we must obtain from you certain rights related to the Content that is covered by intellectual property rights. You hereby grant us a worldwide, non-exclusive, royalty-free, transferable, sub-licensable license to use your Content for the purposes of operating, developing, and improving the Service or new technologies or services, in accordance with the Privacy Policy. Such license includes the right to reproduce, distribute, modify, prepare derivative works based upon, broadcast, communicate to the public, publicly display and perform Content. You will not be entitled to compensation for any use of Content by us under these Terms.

5.4. Your Responsibilities. You are solely responsible for your Content, and you represent and warrant that all your Content complies with these Terms and any applicable law and regulation, and that you have all the rights and authorizations necessary to grant the licenses in these Terms and to upload, store, create, modify, share or publish the Content on or through the Service and, when applicable, in connection with the Promotion.

5.5. Removal of Content. In addition to any other appropriate action and remedies under these Terms and at law, we may screen, monitor, modify, remove or disable any portion or all of your Content if, in our sole judgment, we determine that such Content is unlawful, in breach of these Terms, or that it may cause harm to us, our users, or third parties. If we remove your Content, we will use reasonable efforts to provide notice of the content removal and afford you the opportunity to appeal if you believe that the removal of the Content is a result of a mistake or misidentification. However, we will not provide notice if we reasonably determine that doing so would violate the law or a law enforcement authority request, or would compromise an investigation, or would cause harm to us, the Service, or a third party. We may use technologies, including automated decision-making tools, that are aimed at detecting Content that is unlawful, in breach of these Terms, or harmful. Such technologies do not relieve you of your responsibilities under these Terms, and we assume no liability arising from their implementation or effectiveness.

5.6. Infringement of Third-Party Rights. We respond to notices of alleged infringement of third-party rights that comply with and satisfy the requirements set out by applicable law, and we may, where appropriate, remove or disable access to the allegedly infringing content. 

6.  Our Intellectual Property Rights

6.1. Ownership.  We or our licensors retain and exclusively own all rights, title and interest in and to the Service and its content, including all intellectual proprietary rights, whether registered or not, which include, but are not limited to, copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights in and to the Service. We reserve all rights not expressly granted to you under these Terms.

6.2. Feedback. If you provide feedback, comments, or suggestions for improvements related to any of our services or products (“Feedback”), you state that you (a) have the right to disclose the Feedback, (b) the Feedback does not violate the rights of any third party, and (c) the Feedback does not contain the confidential or proprietary information of any third party. You (i) acknowledge that we may have something similar to the Feedback already under consideration or in development, and (ii) assign to us your entire right, title, and interest (including any intellectual property rights) in and to Feedback. To the extent that any right, title, or interest cannot be assigned under applicable law, you hereby grant us an irrevocable, exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works from, publish, distribute, and sublicense the Feedback without any compensation, and you waive any right, title, or interest, and consent to any action by us, our service providers, successors, and assigns that would violate such right, title, or interest in the absence of such consent. You agree to execute any documents necessary to effect the foregoing assignment, waivers, or consents.‍

7. Promotional Activities

Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available by us through the Service may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules. If the rules for a Promotion conflict with these Terms, the Promotion rules will govern.

8. Disclaimer of Warranties and Limitation of Liability

8.1. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE (EXPRESSLY INCLUDING ALL CONTENT AND FEATURES MADE AVAILABLE VIA THE SERVICE) IS PROVIDED “AS-IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF COURSE OF DEALING, OF TRADE USAGE OR PRACTICE, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICE PERFORMED OR PROVIDED BY, THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, SECURE, OR ERROR-FREE, THAT ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED, OR THAT THE SERVICE IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY. SHOULD THE SERVICE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, AND YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR CORRUPTION OF DATA THAT RESULTS FROM THE USE OF AND ACCESS TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF VARIOUS WARRANTIES, SO ONE OR MORE OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT SUCH WARRANTIES CANNOT BE DISCLAIMED UNDER THE LAWS OF YOUR JURISDICTION, WE LIMIT THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE FULL EXTENT PERMISSIBLE UNDER THOSE LAWS.

8.2. Limitation of Liability. TO MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE (AND OUR AFFILIATES, PARENT COMPANIES, OFFICERS, AGENTS, EMPLOYEES, PARTNERS, LICENSORS, CONTRACTORS, PERMITTED SUCCESSORS AND PERMITTED ASSIGNS) WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, MORAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, OR ANY CONTENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), OR WHETHER SUCH DAMAGE WAS FORESEEABLE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL OUR (AND OUR AFFILIATES, PARENT COMPANIES, OFFICERS, AGENTS, EMPLOYEES, PARTNERS, LICENSORS, CONTRACTORS, PERMITTED SUCCESSORS AND PERMITTED ASSIGNS’) TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED THE GREATER OF THE AMOUNTS YOU HAVE PAID TO US IN THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY OR ONE HUNDRED U.S. DOLLARS (US$100). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF CERTAIN TYPES OF DAMAGES, INCLUDING FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN WHICH CASE SOME OF THE LIMITATIONS ABOVE MAY NOT APPLY TO YOU. THE ABOVE LIMITATIONS OR EXCLUSIONS DO NOT AFFECT YOUR STATUTORY CONSUMER RIGHTS IN YOUR APPLICABLE JURISDICTION.

9. Indemnification

To the maximum extent permitted by applicable law, you will defend, indemnify and hold us, our affiliates, our and our affiliates’ directors, officers, agents, employees, partners, licensors, contractors, permitted successors and permitted assigns (each of the foregoing, an “Indemnitee”) harmless from all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including, but not limited to, professional fees and reasonable attorneys’ fees incurred by one or more Indemnitees, to the extent directly or indirectly arising out of or resulting from: (a) your access to or use of the Service; (b) your Feedback; (c) any breach of these Terms by you or any person accessing the Service using your account or device; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); (e) your violation of any applicable law or regulation; (f) any and all claims for property damage, personal injury or bodily injury or death, to the extent caused by your breach of these Terms; or (g) your conduct in connection with the Service. You will promptly notify us of any third-party claims subject to indemnification. You agree that we will have the right to control the defense, negotiation, and settlement of any claim subject to indemnification by you and that you will fully cooperate with us in the defense, negotiation, or settlement of any such claim, and that we will have the right to select counsel handling such defense, negotiation or settlement in our sole discretion. This Section is in addition to, and does not affect, any other indemnities set out in a written agreement between you and us or the other Indemnitees. 

10. Third-Party Materials and Services; Advertising 

10.1. Third-Party Materials and Services. The Service displays, includes or makes available content and information from third parties (collectively, “Third-Party Materials”). The Service may also enable access to third-party services, software, and websites (collectively, “Third-Party Services”) or provide links to certain Third-Party Services or Third-Party Materials. You understand that by using the Service, you may encounter content, including Third-Party Services and Third-Party Materials, that may be deemed inaccurate, offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search may automatically and unintentionally generate links or references to objectionable material. By using the Service, you further acknowledge and agree that we are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Services or Third-Party Materials. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any Third-Party Services or Third-Party Materials. Such Third-Party Services and Third-Party Materials are provided solely as a convenience to you. You agree to use the Service and any Third-Party Services or Third-Party Materials at your sole risk, and you acknowledge that we will not have any liability to you for content that may be found to be inaccurate, offensive, indecent, or objectionable. In addition, Third-Party Services and Third-Party Materials that may be accessed from, displayed on or linked from your device may not be available in all languages, in all countries, or in all operating systems. We make no representation that such Third-Party Services and Third-Party Materials are appropriate or available in any particular location. We do not endorse any Third-Party Services or Third-Party Materials or any opinion, recommendation or advice expressed by any third party, regardless of the fact that we may advertise Third-Party Services and Third-Party Materials on the Service. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of information obtained from the Service. To the extent you choose to access or use such Third-Party Services or Third-Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws. We, and our content providers and licensors, reserve the right to change, suspend, remove, limit, or disable access to any Third-Party Services or Third-Party Materials at any time without notice. We will not be liable for the limitation, removal of, or disabling of access to any such services or materials. You acknowledge and agree to comply with applicable third-party terms and conditions related to the use of the Service, Third-Party Services and Third-Party Materials. 

10.2. Post Sponsoring Feature. We may offer one or more features that integrate the Service with advertising accounts from Third-Party Services (the “Post Sponsoring Features”). The Post Sponsoring Features may include functionality that facilitates the setting of advertising budgets on one or more of such Third-Party Services. By using the Post Sponsoring Features, you: (a) agree to comply with the advertising policies of the applicable Third-Party Service, and (b) acknowledge and accept that Third-Party Services may make adjustments to any advertising budget you allocate through the Post Sponsoring Features. It is your sole responsibility to monitor your advertising budget with Third-Party Services and all charges made by Third-Party Services, and to terminate any of your advertising campaigns if your advertising budget is exceeded. We will not be responsible for any fees, costs, or charges you incur with Third-Party Services in connection with the Post Sponsoring Feature.

10.3. Advertisement. The Service may contain advertisements. In consideration for your access and use of the Service, you agree that we, our affiliates, and our third-party partners may place advertising on the Service.

11. Suspension; Termination

11.1. Suspension. We may suspend without prior notice your access or your account (if any) and any portion or all of the Service for any reason, including if, in our sole judgment, we determine: (a) there is a threat or attack on any of our services or systems, or any data stored thereon; (b) your use of the Service disrupts or poses a security risk to us or any of our customers or vendors; (c) you are using the Service for purposes of engaging in, or your account is being used to engage in, fraudulent or illegal activities; (d) our provision of the Service to you is prohibited by applicable law or regulation; (e) you fail to comply with one or more provisions of these Terms, or we suspect that you are in violation of, or reasonably likely to be in violation of, one or more provisions of these Terms; or (f) any of our licensors or vendors restricts, suspends, or terminates our access to one or more Third-Party Services or Third-Party Materials that are required for the provision of or access to the Service. We will use reasonable efforts to provide notice of any suspension of the Service to you and to provide updates regarding resumption of access to the Service following any suspension.

11.2. Termination by You. These Terms are effective until you perform each of the following: (a) cease all use of the Service, (b) uninstall and delete any copies of the Service in your possession, (c) cancel all active Subscription Plans in accordance with section 4.2, and (d) delete your account, if you have one. 

11.3. Termination by Us. We may, in our sole discretion, terminate the Terms or your right to access or use the Service at any time (a) for any reason by providing you with notice, and (b) without notice where we reasonably consider that your use of the Service violates these Terms or applicable law, or we are unable to continue to provide the Service, including due to technical or legitimate business reasons.

11.4. Effect of Termination and Survival. Upon expiration, termination, or cancellation of these Terms for any reason, (a) you must cease all use of the Service and uninstall and delete all copies of all Service or software included with the Service in your possession, and (b) all rights granted to you under these Terms, including all licenses, will immediately terminate. The provisions of these Terms that are by their nature intended to survive termination or expiration of these Terms will so survive.

11.5. Withdrawal Right. If you are a consumer resident in the European Economic Area or the United Kingdom, you may exercise your statutory right of withdrawal within 14 days of purchasing or upgrading a Subscription Plan in your account. You understand that you cannot exercise your statutory right of withdrawal if you have started using the Service.

12. Confidential Information

12.1. Confidential Information. “Confidential Information” means all information disclosed by one party to the other party in connection with the provision of the Service that either is specifically identified as “confidential” by the disclosing party at the time of disclosure, or under the circumstances surrounding its disclosure, should reasonably be considered to be confidential. Confidential Information includes but is not limited to, our product roadmap, pricing, partners, security practices, and beta features. Confidential Information excludes information that (a) is publicly known or generally available to the public, or becomes publicly known or generally available to the public through no fault of the receiving party, (b) was in the possession of the receiving party without any confidentiality obligation prior to receipt from the disclosing party, (c) is rightfully received by the receiving party from a third party without any confidentiality obligations, or (d) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.

12.2. Protection of Confidential Information. Each party will protect the other party’s Confidential Information from unauthorized use, access, or disclosure, in the same manner as each party protects its own Confidential Information, but with no less than reasonable care. Each party may use the other party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and, except as expressly permitted in these Terms, may disclose such Confidential Information (a) solely to the employees, advisors, contractors, and representatives who need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information at least as restrictive as those in these Terms; (b) as necessary to comply with an order or subpoena of an administrative agency or court of competent jurisdiction provided that the receiving party gives the disclosing party reasonable notice to enable it to seek an order to limit or prevent such disclosure; or (c) to the extent necessary to comply with law.

13. Dispute Resolution; Binding Individual Arbitration

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND LOOMLY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH YOU AND LOOMLY CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND LOOMLY FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND LOOMLY AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. LOOMLY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

THE PARTIES ACKNOWLEDGE THAT THE TERMS IN THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY'S CLAIMS.

FOLLOW THE INSTRUCTIONS BELOW IN SECTION 16(K) IF YOU WISH TO OPT OUT OF THE REQUIREMENT TO ARBITRATE ON AN INDIVIDUAL BASIS.

  1. Claims Subject to this Section. The dispute resolution and binding arbitration terms in this Section 13 apply to all Claims between you and Loomly. A “Claim” is any dispute, claim, cause of action, or controversy (excluding those exceptions listed below) between you and Loomly, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory for which either party wishes to seek legal recourse and that arises from or relates to these Terms or the Services, including any related to privacy or data-security or to the formation, validity, enforceability, revocability, performance, breach, or scope of these Terms or this arbitration agreement or any portion of it or arising out of or relating to interpretation or application of these Terms or this arbitration agreement.
  2. Informal Dispute Resolution Prior to Arbitration. If you have a Claim against Loomly or if Loomly has a Claim against you, you and Loomly must first attempt to resolve the Claim informally in order to try to resolve the Claim faster and reduce costs for both parties. You and Loomly will make a good-faith effort to negotiate the resolution of any Claim for 45 (forty-five) days, or such longer period as mutually agreed in writing (email suffices) by the parties, (“Informal Resolution Period”) from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice”) in accordance with these Terms.

    You will send any Claimant Notice to Loomly by certified mail addressed to 169 Madison Ave, Suite 11218, New York, NY 10016, USA or by email to legal@loomly.com. Loomly will send any Claimant Notice to you by certified mail or email using the contact information you have provided to Loomly or via reasonably available means of notice if you have not provided certified mail or email contact information to Loomly. The Claimant Notice sent by either party must (i) include the sender’s name, address, email address, telephone number, and any relevant purchase information; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.

    The Informal Resolution Period is intended to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. You or Loomly cannot initiate arbitration before the end of the Informal Resolution Period. If you or Loomly file a Claim in court or initiate arbitration without first providing a compliant Claimant Notice and waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court or arbitrator to enjoin the filing or arbitration and seek damages from the party that has not followed the informal dispute-resolution process to reimburse it for any costs and fees—including arbitration, attorney, and expert fees—incurred as a foreseeable consequence of that breach.

    The statute of limitations and any filing-fee deadlines for a Claim shall be tolled for the duration of the Informal Resolution Period for that Claim so that the parties can engage in this informal dispute-resolution process.

  3. Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small-claims court (provided that the small-claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual-property rights of you or Loomly, including any disputes in which you or Loomly seek injunctive or other equitable relief for the alleged unlawful use or infringement of your or Loomly’s intellectual property (“IP Claims”), all Claims, including Claims that are not related to intellectual property but are jointly filed with IP Claims, that are not resolved in accordance with Section 13(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury.
  4. Binding Individual Arbitration. Subject to the terms of this section, Claims may only be adjudicated by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), https://namadr.com, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”) and NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the “Rules”), as modified by these Terms.

    If NAM notifies the parties in writing (email suffices) that it is not available to arbitrate any Claim, then that Claim may only be settled by binding individual arbitration conducted by American Arbitration Association (“AAA”), https://www.adr.org. For Claims that must be arbitrated by AAA, if you are a “Consumer,” meaning that you only use the Services for personal, family, or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules apply to Claims between you and Loomly, as modified by these Terms. For Claims that must be arbitrated by AAA, if you are not a “Consumer,” the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures apply to Claims between you and Loomly as modified by these Terms.

    These Terms affect interstate commerce, and the enforceability of this Section 13 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, these Terms, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy or relief that would otherwise be available in court, including the power to determine the question of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Loomly to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).

  5. Arbitration Procedure and Location. You or Loomly may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM (or with AAA if applicable pursuant to Section 13(d)).

    Instructions for filing a demand for arbitration with NAM are available on the NAM website or by emailing NAM at commercial@namadr.com, and instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879. You will send a copy of any demand for arbitration to Loomly by certified mail addressed to 169 Madison Ave, Suite 11218, New York, NY 10016, USA, or by email to legal@loomly.com. Loomly will send any demand for arbitration to you by certified mail or email using the contact information you have provided to Loomly or via reasonably available means of notice if you have not provided certified mail or email contact information to Loomly.

    The arbitration will be conducted by a single arbitrator in the English language. You and Loomly both agree that the arbitrator will be bound by these Terms.

    For Claims in which the claimant seeks USD $10,000 or less, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the claimant seeks more than USD $10,000, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing is necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in New York, New York, unless you are a Consumer and the arbitrator determines that this would pose a hardship for you, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.

    The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and Loomly agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.

    An arbitration award and any judgment confirming it apply only to that specific case; they cannot be used or offered as precedent in any other case except to enforce the award itself unless the parties agree prior to issuance of the award. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.

  6. Arbitration Fees. Except for circumstances outlined in Section 13(g), each party will be responsible for arbitration fees in accordance with the applicable Rules and these Terms.
  7. Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs and fees incurred by the defending party—including arbitration, attorney, and expert fees—related to a Claim if an arbitrator determines that (i) the Claim was frivolous or (ii) the Claim was filed for any improper purpose, such as to harass the responding party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
  8. One Year to Assert Claims. TO THE EXTENT PERMITTED BY LAW, ANY CLAIM BY YOU OR LOOMLY AGAINST THE OTHER MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM ARISES; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU OR LOOMLY WILL NO LONGER HAVE THE RIGHT TO ASSERT THAT CLAIM.
  9. Confidentiality. If you or Loomly submits a Claim to arbitration, you and Loomly agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. You and Loomly agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
  10. Coordinated Filings. If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Claims” and will be treated as mass filings, mass arbitrations or multiple case filings according to the Rules (including, when applicable, AAA’s Mass Arbitration Supplementary Rules), if and to the extent Coordinated Claims are filed in arbitration as set forth in these Terms. You or Loomly may advise the other of your or its belief that Claims are Coordinated Claims, and disputes over whether a Claim meets the definition of “Coordinated Claims” will be decided by the arbitration provider as an administrative matter. The following procedures are intended to supplement the Rules, and to the extent the procedures conflict with those Rules, to supersede them.

    COORDINATED CLAIMS MAY ONLY BE FILED IN ARBITRATION AS PERMITTED BY THE BELLWETHER PROCESS SET FORTH BELOW. APPLICABLE STATUTES OF LIMITATIONS WILL BE TOLLED FOR CLAIMS ASSERTED AS COORDINATED CLAIMS FROM THE TIME A COMPLIANT CLAIMANT NOTICE HAS BEEN RECEIVED BY A PARTY UNTIL THESE TERMS PERMIT SUCH COORDINATED CLAIMS TO BE FILED IN ARBITRATION OR COURT.

    Initial Bellwether: The bellwether process set forth in this Section will not proceed until counsel representing the Coordinated Claims has advised the other party in writing (email suffices) that all or substantially all the Claimant Notices for the Coordinated Claims have been provided.

    After that point, counsel for the parties shall select 20 Coordinated Claims to proceed in arbitration as a bellwether to allow each side to test the merits of its claims and arguments. Each side shall select 10 claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. The parties acknowledge that resolution of some Coordinated Claims will be delayed by this bellwether process. Any remaining Coordinated Claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those Claims, unless and until they are selected to be filed in individual arbitration proceedings as set out in this Section 13(j).

    A single arbitrator shall preside over each Coordinated Claim chosen for a bellwether proceeding, and only one Coordinated Claim may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.

    Mediation: Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Coordinated Claims, with the mediator’s fee paid for by Loomly. Counsel for the claimants and the other party must agree on a mediator within 30 (thirty) days after the conclusion of the last bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 (thirty) days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.

    Remaining Claims: If the mediation does not yield a global resolution of all remaining Coordinated Claims, the arbitration requirement in this Section 13 shall no longer apply to Coordinated Claims for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether proceedings. Such Coordinated Claims released from the arbitration requirement must be resolved in accordance with Section 14.8.

    To the extent you are asserting the same Claim as other persons and are represented by common or coordinated counsel, you agree to waive any objection that the joinder of all such persons is impracticable.

    If Coordinated Claims released from the arbitration requirement are brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in Coordinated Claims for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.

    A court shall have authority to enforce the bellwether and mediation processes defined in this Section 13(j) and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.

  11. Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 (thirty) days of the date you first accept these Terms by providing us with notice of your decision to opt out via email at legal@loomly.com or by certified mail addressed to 169 Madison Ave, Suite 11218, New York, NY 10016, USA. To be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 14.8. If you opt out of this updated arbitration clause and were previously subject to an arbitration clause in effect prior to this updated arbitration clause, then that prior arbitration clause shall remain as part of the agreement between us. If you are a new user and did not previously consent to the prior arbitration clause and you choose to opt-out of this updated agreement, then we will also not be bound by this updated arbitration clause.
  12. Rejection of Future Arbitration Changes. You may reject any change we make to Section 13 (except address changes) by sending Loomly notice of your rejection within 30 days of the change via email at legal@loomly.com or by certified mail addressed to 169 Madison Ave, Suite 11218, New York, NY 10016, USA. Changes to Section 13 may only be rejected as a whole, and you may not reject only certain changes to Section 13. If you reject changes made to Section 13, the most recent version of Section 13 that you have not rejected will continue to apply.
  13. Severability. If any portion of this Section 13 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 13 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 13; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with these Terms, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 13 is found to prohibit an individual claim seeking public injunctive relief (that is, injunctive relief whose primary purpose and effect is to prohibit and enjoin conduct harmful to the general public), that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 13 will be enforceable. To the extent that you prevail on a Claim and seek public injunctive relief, the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual Claims in arbitration.
  14. Consumers in the European Union. If you are a Consumer resident or domiciled in the European Union, this Section 13 does not apply to you. As an alternative to resolution of disputes through courts, consumers resident in the European Union may refer their complaint to the European Online Dispute Resolution Platform. Consumers may obtain more information by visiting the European Commission’s Online Dispute Resolution Platform site.

14. General

14.1. Contact Information. If you want to contact us, please visit our Help Center. If we have to contact or notify you, we will do so by using the contact or account information you provided to us or via notification through the Service or other reasonable method.

14.2. Entire Agreement. These Terms constitute the entire agreement between us regarding its subject matter and supersedes any prior or contemporaneous agreements or statements between us. Any terms in any purchase order or other order documentation delivered by you will be null and void.

14.3. Changes to Terms. We may change these Terms from time to time in our sole discretion (for example, when we remove or release new features, technologies, or services, to comply with legal, regulatory, or contractual requirements, or in response to exceptional or unforeseen circumstances). In such cases, we will take reasonable measures to inform you, in accordance with the significance of the changes performed, for example, by revising the date at the top of the updated Terms, via email or as a notification within the Service. It is your responsibility to review the Terms regularly, and to check the Service for updates to these Terms regularly. Unless otherwise noted, the updated Terms will be effective as of the time at which we post the updated Terms in the Service. By continuing to access or use the Service after updates become effective, you agree to be bound by the updated Terms. If you do not agree to the updated Terms, you must immediately (a) cease all use of the Service, (b) uninstall and delete any copies of the Service in your possession, (c) cancel all active Subscription Plans and (d) delete your account, if you have one.

14.4. Assignment. You will not assign, subcontract, delegate, or otherwise transfer these Terms, or your rights and obligations hereunder, without obtaining the prior written consent of one of our authorized representatives, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be void. We may assign these Terms or delegate our obligations hereunder, in whole or in part, without your consent, to any person or entity at any time.

14.5. Severability. If any provision or part of these Terms is found to be unlawful, void or for any reason unenforceable, that provision, or the affected part thereof, will be deemed amended so that it is valid and enforceable to the maximum extent permitted by law. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of these Terms as possible. Any unaffected provision of these Terms will remain in full force and effect.

14.6. No Waiver. Any failure by us to exercise or enforce any of our rights under these Terms does not waive our right to enforce such rights. Any waiver of such rights will only be effective if it is in writing and signed by one of our authorized representatives. The rights and remedies under these Terms are cumulative and are in addition to and not in substitution of any other rights and remedies available at law, in equity or otherwise.

14.7 Economic Sanctions and Export Controls. You agree to comply with any trade, sanctions or export control law to not cause us to violate such law. In particular, but without limitation, the Service may not be exported or re-exported to or used in or for the benefit of (a) any U.S.-embargoed countries or territories, or (b) to anyone in the U.S. Treasury Department's Specially Designated Nationals List, the U.S. Department of Commerce Denied Persons List or Entity List, the United Nations Security Council Consolidated List, or any European Union or United Kingdom restricted party list. You represent and warrant that you are not located in or organized under the law of any such country or on any such list.

14.8. Governing Law and Jurisdiction. These Terms, and any dispute, claim (including non-contractual disputes or claims), or matters arising out of or in connection with these Terms will be governed by, and construed in accordance with, the laws of the State of New York, U.S., excluding any conflict-of-laws rule or principle that might refer the governance or the construction of these Terms to the law of any other jurisdiction. If you are a Consumer resident in the European Union, these Terms will not affect the mandatory laws and statutory consumer rights of your country of residence. If a dispute, claim or matter arising out of or in connection with these Terms is not subject to arbitration pursuant to Section 13, (a) if you are a Consumer resident or domiciled in the European Union, you may submit your claim to the court of your place of residence or domicile, and (b) if you are a resident of anywhere other than the European Union, you agree that any claim or dispute you may have against us must be resolved exclusively by a state or federal court located in New York, New York, USA and you agree to submit to the exclusive personal jurisdiction of the courts located within New York, New York, USA (and, for the avoidance of doubt, to exclude the jurisdiction of any other court) for the purpose of litigating all such claims or disputes.

15. Additional Terms for App Marketplaces

When you access, purchase, or download our mobile application from the Apple App Store ("App"), you acknowledge and agree that:

  1. These Terms are concluded between you and Loomly, and not with Apple Inc. or its subsidiaries (collectively, “Apple”), and as between Loomly and Apple, Loomly is solely responsible for the App and the content thereof.
  2. You may only use the App on an Apple-branded product that you own or control and as permitted by the Usage Rules set forth in the terms and guidelines that govern your use of the Apple App Store (including the Apple Media Services Terms and Conditions), except that the App may be accessed and used by other accounts associated with your account from which you made your purchase via Family Sharing or volume purchasing.
  3. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
  4. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you where applicable. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Loomly.
  5. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
  6. In the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, as between Apple and Loomly, Loomly will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
  7. You may not use or otherwise export or re-export the App or any component or product thereof except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. You also agree that you will not use the App or any component or product thereof for any purposes prohibited by such laws. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list.
  8. You must comply with applicable third-party terms of agreement when using the App.
  9. Apple is a third-party beneficiary of these Terms, and Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.

16. Data Processing Agreement

16.1. Data Processing Agreement. To the extent data protection legislation applies to you in connection with your use of the Service as an Owner, the Data Processing Agreement is incorporated by reference into these Terms.

16.2. No Sensitive Data and Children Data. You must not process any sensitive or special category of personal data in connection with the Service such as health data, financial account numbers, or data of individuals under the age of 16 without parental consent.

16.3. Data Subjects Requests. In connection with your use of the Service as an Owner, you acknowledge and agree that you are solely responsible for ensuring compliance with applicable data protection legislation for the personal data for which you act as data controller. This includes timely and appropriate handling of any data subject requests that may be forwarded to you by us or received directly from a data subject. Failure to fulfill these obligations will constitute a breach of these Terms and may result in the removal of the involved data.