Terms of Service
Last updated: December 20, 2017
These Terms of Service (“Terms”) are a legal contract between you and Lunera Lighting, Inc.and its suppliers (collectively, “Lunera”, “We”, “Us” or “Our”) and govern your access to and use of the Lunera mobile applications (the “Mobile Application”) and the Lunera website located at www.lunera.com as well as all associated sites linked to www.lunera.com by Lunera (collectively with the Apps, the “Site”). Unless otherwise specified, all references to “Site” include the content of the Site (the “Content”), services available through the Site (the “Services”). Lunera sells lighting products (collectively, “Products”) that can operate independently or be managed through software applications. Lunera also allows customer to log into its Lunera Ambient Compute Platform (the “Lunera Ambient Compute Platform”) through the Site.
PLEASE READ THESE TERMS CAREFULLY.BY USING THIS SITE OR CLICKING THE “I AGREE” BOX, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THESE TERMS. IF YOU ARE AGREEING TO THIS AGREEMENT AS AN INDIVIDUAL, “YOU” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THIS AGREEMENT AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “YOU” REFERS TO THAT ENTITY.IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT USE ANY SERVICES OR ACCESS THE SITE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH LUNERA. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
Electronic Contracting and Messaging
These Terms May Change
Lunera reserves the right to make changes to these Terms over time by posting the updated Terms on the Site. If you have an account, we will notify you of changes to these Terms by presenting the new version of the Terms to you to accept when you log into your account. When you agree to a new version of the Terms, that version will control.
Relationship to Product Warranty
These Terms govern your use of Services. Your purchase of any Product is governed by the limited warranty provided with that Product.
You are prohibited from using the Services unless you are 18 years of age or older. You may not use the Services where prohibited by applicable law. We also do not knowingly collect any information from children under the age of 13. If you are not 18 years of age or older, you must have your parent or legal guardian use the Services. Please contact us at (408) 495-5600 if you believe your child has provided us with personal information in connection with the Services.
Accounts; Lunera Ambient Compute Platform
The Sites provide a login page for customers to log in and access the Lunera Ambient Compute Platform. To log in, you must have a commercial contract in place with us and then we will provide you login details to your account. You have no right to transfer your account to any other individuals in any manner. Lunera is not liable for any loss or damages arising from your failure to maintain the confidentiality of your account.
Your use of the Lunera Ambient Compute Platform is governed by the applicable commercial agreement between You and Lunera.
Lunera makes available Mobile Applications to access the Lunera Ambient Compute Platform via a mobile device. To use the Mobile Application you must have a mobile device that is compatible with the mobile service. Lunera does not warrant that the Mobile Application will be compatible with your mobile device. Lunera hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that Lunera may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Lunera and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that Lunera provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and Lunera only, and not with Apple, Inc. (“Apple”).
- Your use of Lunera’s iOS App must comply with Apple’s then-current App Store Terms of Service.
- Lunera, and not Apple, are solely responsible for our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that Lunera, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that Lunera, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) 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 (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of Lunera’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that Lunera provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and Lunera only, and not with Google, Inc. (“Google”).
- Your use of the Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. Lunera, and not Google, are solely responsible for the Android App and the Services and Content available thereon. Google has no obligation or liability to you with respect to the Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Android App.
Changes to Services
Lunera may change, upgrade, discontinue, or temporarily suspend any feature or component of the Services at any time without notice.
Term and Termination
These Terms will remain in full force and effect as long as you continue to access or use the Services.
Lunera provides content through the Site that is copyrighted and/or trademarked work of Lunera or Lunera’s third-party licensors and suppliers or other users of the Site (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
Subject to your compliance with these Terms, Lunera grants you a revocable, limited, non-exclusive, non-transferable, non-sub-licensable license to (a) use the Site and Services; and (b) use and display the Materials. No other licenses or rights are granted to you by implication or otherwise under any intellectual property or proprietary rights owned or controlled by Lunera or its licensors.
License Restrictions and Proprietary Rights
Unless as expressly permitted in these Terms, you agree not to, and you will not permit others to, (i) license, sublicense, assign, convey or transfer, the rights and licenses granted hereunder; (ii) publish, display, disclose, sell, rent, lease, store, loan, distribute, transmit, publicly display or perform, co-brand, frame, host, outsource, or otherwise commercially exploit the Services, including the Mobile Apps and Other Software (collectively, the “Software”), (iii) copy or reproduce the Services or Software or any part thereof, in any form; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or Services; (v) use the Software and Services in any fashion that may infringe any patent, copyright, trademark, trade secret, or any other intellectual property or proprietary right of Lunera, its third-party providers, or any other third-party; (vi) modify, translate, adapt, disassemble, reverse engineer decompile, reverse compile, or create compilations or derivative works of, the Software, Services, or any part thereof (except to the extent applicable laws specifically prohibit such restriction), or (vii) use the Software or Services for any service bureau, time-sharing, resale or similar purposes.
Lunera is a trademark of Lunera in the United States. Other trademarks, names and logos on this Site are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Lunera, Copyright © 2016 Lunera Lighting, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
The Mobile Application software that is provided to you through the Site and Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if you are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
No Life-Safety, Critical or Emergency Uses of the Services
You acknowledge and agree that the Services and Products are not certified for emergency response and may not be used for emergency or egress lighting. Lunera makes no warranty or representation that use of the Services or Products with any third-party product or service will affect or increase any level of safety or security. The Services and Products are not a third-party monitored emergency notification system — Lunera will not dispatch emergency authorities to your home in the event of an emergency. All life threatening and emergency events should be directed to appropriate response services.
Certain third party software code may be included in the Software that are subject to “open source” or “free software” licenses (“Open Source Software”). The Open Source Software is not subject to these Terms. Instead, each item of Open Source Software is licensed under the terms of the end user license amending such Open Source Software. Nothing in these Terms restricts your right, if any, to copy, modify, and distribute such Open Source Software.
Access to Services
You agree to abide by all applicable laws in your use of the Service, including export control laws and similar regulations governing the transfer of Software and other technology outside of the United States or other jurisdictions.
When using the Services, you shall not:
- disrupt, interfere with, violate the security of, or attempt to gain unauthorized access to, the Services or any computer network;
- circumvent any technological measure implemented by Lunera or any of Lunera’s providers or any other third party (including another user of the Services) to protect the Services;
- upload, transmit, distribute, or run any computer virus, worm, Trojan horse, or any computer code that could damage or alter a computer, portable device, computer network, communication network, data, the Services, or any other system, device or property;
- run Maillist, Listserv, or any form of auto-responder or “spam” on the Services;
- attempt, in any manner, to obtain the password, account, credentials, or other security information from any other user; or
- jeopardize the security of your account or anyone else’s account (for example, by allowing another individual to login into the Services as you).
This list of prohibitions provides examples and is not complete or exclusive. Lunera reserves the right to terminate access to your account; with or without cause and with or without notice, for any reason or no reason, or for any action that Lunera determines is inappropriate or disruptive to this Site or to any other user of this Site. Lunera may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Lunera’s discretion, Lunera will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
Unauthorized use of any Materials contained on this Site may violate certain laws and regulations.
You warrant, represent, and agree that any content you submit to the Services and the use and provision of any content you submit on the Services as provided will not: (i) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, or other intellectual property rights, or rights of publicity or privacy, or other rights; (ii) violate, or encourage any conduct that would violate, any applicable law, statute, regulation, or ordinance, or would give rise to civil liability; (iii) be fraudulent, false, misleading, deceptive, defamatory, tortuous, obscene, harmful, pornographic, vulgar, offensive, or otherwise objectionable; (iv) promote discrimination, racism, hatred, harassment or harm against any individual or group; (v) be violent, threatening, abusive, or promote violence or actions that are threatening or abusive to any person or entity; or (vi) promote illegal or harmful activities or substances.
All comments, suggestions, feedback, or ideas Submitted by you about the Services are Lunera’s property and we may access, copy, modify, redistribute, publish or otherwise use them for any purpose and in any way without due compensation to you. Lunera does not waive any right to use similar ideas previously known to us or developed by us.
Limitations of Services
The Services is intended to be accessed and used for non-time-critical information. While we strive for the Services to be highly reliable and available, it is not intended to be reliable or available 100% of the time. The Services is subject to sporadic interruptions and failures for a variety of reasons beyond our control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Lunera is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status of the Product, notifications, or timing of the environment in which a Product is being operated.
The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, updates, adjustments, or other circumstances. You acknowledge and agree that you will not be entitled to any refund or rebate for any such suspension. Lunera does not offer any specific uptime guarantee for the Services. Lunera is not liable for any losses arising from a suspension of the Services.
All information concerning the Services and use of the Product with the Services is provided “as is” and “as available”. Lunera does not guarantee that this information is correct or up to date. Accessing the information through the Services is not a substitute for direct access to the information in or on the Product itself.
Although Lunera cares about the security, integrity, and availability of the Services and personal information, we cannot guarantee the security of your personal information. You acknowledge that you provide your personal information at your own risk.
Limitations of the Services Due to Reliance on Third Parties
The Services relies on certain third party products and services. For example, we rely on mobile operating system vendors and mobile carriers to enable mobile device notifications through the Services. These third party products and services are beyond our control, and their operation may not operate in a reliable manner or be available 100% of the time. Lunera is not responsible for any damages and losses due to the operation of these third party products and services.
You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party web services from which you download the Mobile Apps – for example, the Android app market from Google or the App Store from Apple (each an “App Store”). You acknowledge that these Terms are between you and Lunera and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from that App Store. You agree to comply with, and your license to use the Mobile Apps, is conditioned upon your compliance and agreement with such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
Third-Party Website Links and Referrals
Release Regarding Third-Parties
Lunera is not responsible for third parties or their products and services, including, without limitation, any third party products and services that enable the Services, equipment, ISPs, carriers, the App Stores, Third Party Sites, and Referred Vendors.
LUNERA HEREBY DISCLAIMS AND YOU HEREBY DISCHARGE, WAIVE AND RELEASE LUNERA AND ITS LICENSORS AND SUPPLIERS FROM ANY PAST, PRESENT, AND FUTURE CLAIMS, LIABILITIES, AND DAMAGES, KNOWN OR UNKNOWN, ARISING OUT OF OR RELATING TO YOUR INTERACTIONS WITH SUCH THIRD PARTIES AND THEIR PRODUCTS AND SERVICES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
You agree to defend, indemnify, and hold Lunera, its directors, officers, employees, shareholders, affiliates, contractors, agents, licensors, and suppliers harmless from any damages, liabilities, claims, demands, losses, or expenses, including attorneys’ fees, made by any third party due to or arising out of or in connection with (i) your use of the Services and Product; (ii) your violation of these Terms; (iii) any content you submit to the Services, and (iv) your violation of any law or the rights of any third party. Lunera will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE IS PROVIDED FOR YOUR CONVENIENCE, “AS IS”, “AS AVAILABLE” AND “WHERE-IS” WITH ALL FAULTS AND ERRORS, AND LUNERA AND OUR SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AVAILABILITY, DATA SECURITY, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHERMORE, LUNERA MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING THE CONTROL OF LIGHTING, CLIMATE CONTROL OR ELECTRICAL PLUGS.
LUNERA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SOFTWARE OR SERVICE ADVERTISED OR PROVIDED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE SERVICES (INCLUDING, BUT NOT LIMITED TO, CLOUD SERVICES) OR ANY HYPERLINKED WEBSITE OR SERVICE.
LUNERA MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND LUNERA WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. LUNERA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
YOU ACKNOWLEDGE THAT THE USE OF THE SERVICES SHALL BE CONNECTED WITH THE INTERNET, AND USE SHALL BE WHOLLY AT YOUR OWN RISK. LUNERA DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE, OR OTHER SECURITY INTRUSION, AND LUNERA DISCLAIMS ANY LIABILITY RELATING THERETO.
SURVEILLANCE, DATA PROTECTION, AND PRIVACY LAWS VARY BY JURISDICTION AND MAY IMPOSE CERTAIN RESPONSIBILITIES ON YOUR USE OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT YOU (AND NOT LUNERA) WILL BE RESPONSIBLE FOR ENSURING THAT YOU COMPLY WITH APPLICABLE LAWS WHERE YOU LIVE AND THAT LUNERA SHALL NOT BE LIABLE IN THE EVENT THAT THE SERVICES ARE USED FOR ILLEGAL PURPOSES, INCLUDING, WITHOUT LIMITATION: NON-CIVIL USE; FAILURE TO COMPLY WITH NOTICE AND CONSENT LAWS; INFRINGEMENT OF THIRD PARTY RIGHTS; USE IN CONNECTION WITH MEDICAL TREATMENT, OR OTHER SITUATIONS WHERE THE SERVICES FAILURE COULD LEAD TO DEATH OR PERSONAL INJURY
LIMITATIONS ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LUNERA, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, CONTRACTORS, AGENTS, LICENSORS, OR SUPPLIERS, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOST DATA OR CONTENT, DOCUMENTATION, OR PROFITS, SERVICE INTERRUPTION, COMPUTER DAMAGE, COST OF SUBSTITUTE SERVICES, INABILITY TO USE THE SERVICES, PRIVACY LEAKAGE, OR ANY OTHER LIABILITIES OR LOSSES CAUSED BY THE SERVICES OR BY FAILURES OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LUNERA KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LUNERA’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EXCEED $500. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. LUNERA DISCLAIMS ALL LIABILITY OF ANY KIND OF LUNERA’S LICENSORS AND SUPPLIERS.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LUNERA AND YOU.
Dispute Resolution and Arbitration; Class Action Waiver
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at (408) 495-5600. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and Lunera. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and Lunera shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “Lunera” means Lunera and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Lunera regarding any aspect of your relationship with Lunera, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Lunera’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give Lunera an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Lunera Lighting, Inc.1615 Wyatt Drive, Santa Clara, CA 95054. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If Lunera does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or Lunera may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Lunera Lighting, Inc.1615 Wyatt Drive, Santa Clara, CA 95054. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Lunera through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Lunera. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or Lunera may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or Lunera may initiate arbitration in either California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, Lunera may transfer the arbitration to California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – Lunera will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Lunera as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Lunera specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and Lunera are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Lunera might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with Lunera or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if Lunera makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Lunera to adhere to the language in this Provision if a dispute between us arises.
Limitation on Claims
Regardless of any statute or law to the contrary, any dispute arising out of or related to your use of the Services must be filed within one (1) year after the occurrence of the event or facts giving rise to a dispute, or you waive the right to pursue any dispute based upon such event or facts forever.
Entire Agreement; Waiver; Severability; General
These Terms constitute the entire and exclusive understanding between you and Lunera with respect to the use of the Services, and these terms supersede and replace any and all prior oral or written understandings or agreements between Lunera and you regarding the Services. Lunera’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision or of any other rights or provisions in these Terms. If a court or tribunal should find that one or more rights or provisions set forth in these Terms are invalid, you agree that the remainder of the Terms will remain in full force and effect and that the invalid provision will be enforceable to the fullest extent permitted by law.
Lunera prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by Lunera, may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in Santa Clara County in the State of California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Lunera’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and Lunera and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Lunera about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
You may not assign or transfer these Terms and any associates rights or obligations, by operation of law, without Lunera’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Lunera may freely assign or transfer these Terms without restriction.
California Consumer Notice.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site and Service are provided by Lunera Lighting, Inc., 1615 Wyatt Drive, Santa Clara, CA 95054. If you have a question or complaint regarding the Site or Service, please contact Customer Service at (408) 495-5600. You may also contact us by writing Lunera Lighting, Inc., 1615 Wyatt Drive, Santa Clara, CA 95054. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
Should you have any questions, please contact us via email at email@example.com or by postal mail at the following address: Lunera Lighting, Inc.1615 Wyatt Drive, Santa Clara, CA 95054.