By accessing and using the Platform identified herein, which is or may be provided by Delaluna Answers LLC, a Florida limited liability company ("Company," "us", "we", "our"), user ("you," "your," "User") expressly agree to these Terms of Service, along with our Privacy Policy (collectively, the "Agreement"), which are a material prerequisite to your use of our Platform. We may modify these Terms of Service at any time.
1. General
In general, Company operates a mobile application platform (the "Platform") providing consumer use of the Company's Delaluna Answers App and the features and functionalities contained with in it from time to time. Company shall have complete discretion to determine the content of the Platform, which may include from time to time, a mobile application, a website, social forums, activities, events, and/or other services (collectively, the Platform). Company may expand, contract, amend, modify, edit, delete, or eliminate part or all of the Platform at any time, for any reason or no reason, in its sole discretion.
2. Minimum Age; Geography
The Platform is only intended and provided for use by persons age 18 or over, within the United States. If you are under 18 or outside the United States, do not use the Platform.
3. Void Where Prohibited
You shall not use the Platform in any jurisdiction where its use is prohibited, including, without limitation, in any jurisdiction where the practice of astrology, fortune-telling, psychic readings, tarot cards, or the like, is prohibited. You are solely responsible for compliance with all laws applicable to your use of the Platform.
4. Entertainment Only
Under no circumstances does Company or the Platform provide medical, psychological, legal, or other professional advice, and any information, readings, or statements provided by Company or on the Platform shall not be construed as such. Use of the Platform does not establish any kind of professional relationship, including, without limitation, medical, psychological, or legal. Information, readings, or other statements provided on the Platform are for entertainment purposes only, and shall not be relied upon for making decisions. Company makes no warranties or guarantees regarding the accuracy, reliability, or outcomes of information, readings, or other statements. In every circumstance, You are responsible for your own conduct and decisions.
5. Prioritization
The Platform will be developed and implemented on a schedule, and in priority of segments, as Company determines necessary or desirable. Exact commencement/start dates for various functionalities of the Platform may vary or deviate from estimates, without liability to Company.
6. Third Party Support
If, in Company's discretion, a hardware or software functionality or issue requires third party support (from "Third Party Supporters"), Company may retain such third party support in its sole discretion and at its sole cost and expense. Company is not responsible to User for the terms of any Third Party Supporter, nor for any malfunction or other failure of Third Party Support. To the extent a Third Party Supporter's Terms of Service apply to Users of the Platform, User shall comply with such Terms of Service as well, and in any event User shall commit no act or omission that causes Company to breach any third party's Terms of Service.
7. Authorized Contact(s)
Company will be entitled to rely on any directions or consent provided by User or any representative who User designates to provide such directions or consent ("Authorized Contacts"). If a previously identified Authorized Contact is no longer available to us, then User's Authorized Contact will be the person (i) who signed this Agreement, and/or (ii) the agent or representative of User who generally corresponds with Company. In the event User designates or allows another person to use User's account, User and such other person (who also becomes a User) are both responsible for these Terms of Service with respect to such use.
8. Authorized User
By accepting these Terms of Service, including use of the Platform by User, User represents and warrants that he/she is duly authorized to enter into this Agreement, that any and all internal procedures necessary for binding User to this Agreement have been complied with or otherwise waived; and in the event of any breach of the foregoing representation/warranty, the User shall indemnify, defend, and hold harmless Company and its Indemnified Parties defined in the Indemnification section, on the terms thereof as they relate to any Claims arising out of or relating to such breach.
9. Content of Inputs
All content, uploads, and other inputs into the Platform by User shall be relevant to the purposes of this Agreement and purposes of the Platform; and no prompt, upload, or input shall be of an illegal, harassing, bullying, abusive, profane, or otherwise harmful or irrelevant nature, as determined by Company. For any User information or content, uploads, inputs, or other deposits into the Platform or otherwise in the Platform environment by User (collectively, "User Content"), the deposit of User Content into the Platform is done at User's sole risk in all circumstances, including, without limitation, in terms of Company's or its Third Party Supporters' exposure to such information.
10. Response; Delays
Company's response to issues relating to the Platform will be handled in accordance with Company's schedule. In no event will Company be responsible for delays in response or its provision of the Platform.
11. Intellectual Property
"Intellectual Property" means, without limitation, any and all domestic or international trade names, brand names, fictitious names, trademarks, service marks, trade dress, trade secrets, copyrights or copyrightable works, patents, rights of publicity, designs (whether artistic, technological, functional, or other type of design), artwork, label designs, logos, drawings, specifications, work product, concepts, prototypes, blueprints, plans, formulas, systems, schemas, recipes, methods (including without limitation delivery, storage, receipt, transmission, presentation, and manufacture of audio, video, formulaic, informational, or other data or content), techniques, business models, writings, graphics, reports, projections, or any other compilations of information, software of any and every kind, software and computer codes of any and every kind, software development tools, assemblers, compilers, device drivers, software libraries, firmware, hardware, web domain names, technology, technical information, scientific information, processes, strategies, templates, forms, discoveries, research and development data, customer lists, databases, database schemas, financial information, pricing models, personnel information, training methods, marketing plans or techniques, business plans or proposals, inventions (whether patentable or not), discoveries, proprietary information, know-how, data, written material, records, and all improvements and derivatives thereof, and all other intellectual property, proprietary rights, goodwill, and documents related thereto, whether registerable or not, whether registered or not, and whether reduced to practice or not, which exists, is embodied in, or comes within the scope of the Platform, along with any and all applications for registration of same in any jurisdiction, and any and all renewals or extensions thereof, together with all other rights and interests accruing by reason of domestic or international conventions with respect to intellectual property, all together with any or all rights to royalties resulting from the licensing of any Intellectual Property and the rights to pursue damages, injunctive relief, or other remedies for infringement or misuse. INTELLECTUAL PROPERTY FURTHER INCLUDES ANY AND ALL USER CONTENT AS DEFINED IN THE "CONTENT OF INPUTS" SECTION ABOVE, AS WELL AS ANY AND ALL USER FEEDBACK AND IDEAS PRESENTED BY A USER TO COMPANY. For the avoidance of doubt, the definition of Intellectual Property and the items and materials that are covered by the scope of this definition shall be construed as broadly as possible in favor of Company.
- Ownership of Intellectual Property. All Intellectual Property embodied within, uploaded to, deposited to, or otherwise associated with the Platform is and shall remain solely the property of Company. User hereby assigns, grants, conveys, and transfers to Company all Intellectual Property rights associated with User Content, and any and all User feedback and ideas presented to Company.
- License to use Platform. During the term of this Agreement, Company provides User with a limited, non-exclusive, non-transferable, royalty-free, license, in the territory of the United States, to access the Platform and use it on the terms of this Agreement, and for no other purpose. In the event of paid services, if Company suspects usage beyond one User on an account, Company may require proof of each actual User's membership, and may suspend or terminate User's account and usage if such proof is not provided or not sufficient. Each User may be permitted or required to establish an account to access the user-end portions of the Platform with login credentials (which may be provided by Company unless Company permits the User to select their own login credentials). Login credentials shall be kept in confidence except as may be required by Company to be provided to Company. Login credentials shall only be used for the purposes of this Agreement, and User shall not provide User's login credentials to any third party.
- Protection of Intellectual Property. User shall not do or attempt, directly or indirectly, nor encourage others to do or attempt any of the following:
- register or use any other trade name, trademark, service mark, or other form of Intellectual Property incorporating or based in whole or in part on any of the Intellectual Property;
- use any Intellectual Property as part of any corporate or trade name, as part of prominent signage displaying its business name, or in connection with unauthorized goods or services;
- use the Intellectual Property in combination with any other intellectual property;
- debrand, rebrand, or private label any of the Intellectual Property;
- deconstruct, decode, decompile, disassemble, reverse engineer, or otherwise tamper with any of the Intellectual Property;
- copy, or duplicate the Intellectual Property, or develop any derivative works thereof, or include any portion of the Intellectual Property in any work product;
- separate the Intellectual Property into component parts, or install or attach other software, programs, devices, or intellectual property to the Intellectual Property;
- remove any product identification, or notices of any proprietary restrictions, or Intellectual Property designation;
- hold itself out as having any ownership interest in the Intellectual Property;
- license the Intellectual Property to a third party;
- dispute the validity, ownership, or enforceability of any of the Intellectual Property; oppose the registration of any pending registration application; or petition to cancel the registration of any registered Intellectual Property;
- any other thing that would constitute infringement of, or which invalidates, dilutes, diminishes, tarnishes, harms, or otherwise adversely affects the functionality of the Intellectual Property, the value of the Intellectual Property, or the goodwill associated therewith.
12. No Warranty
User acknowledges, understands, and agrees that the content of the Platform shall be solely in Company's discretion; that Platform content may or may not align with User's expectations; that the Platform may not perform optimally or at all, that there are no warranties or guarantees of functionality, fitness for a particular purpose, accuracy, security of the Platform or the information contained therein, or otherwise, and that User shall not and will not rely on any results or outputs of the Platform. Platform data will be stored on a third-party cloud-based platform such as Fire Base by Google, in accordance with its terms of service. We may change our storage provider and any Third Party Supporter at any time, without notice. Inclusion of any User Content is done at User's sole risk.
13. No Resale
User shall not do or attempt, and shall not permit or encourage, directly or indirectly, the resale of any component, aspect, outcome, or result associated with the Platform. All profits associated with the Platform and its outputs belong to Company. For example only, and without limitation, User shall not sell client subscriptions to certain information, reports, or outputs from the Platform, acknowledging that all profits and potential profits arising from or relating to the Platform itself and its capabilities belong to Company.
14. Limitations on Liability
User acknowledges and agrees that Company would not enter into this Agreement nor provide use of the Platform unless Company could rely on the limitations described in this paragraph. In no event will Company, its affiliates, officers, directors, members, shareholders, employees, contractors, subcontractors, agents, or advisors (collectively, including Company, "Company Representatives") be liable to User, its heirs, personal representatives, friends, family members, affiliates, officers, directors, members, shareholders, employees, contractors, subcontractors, agents, or advisors ("User Representatives") for any actual, indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits, savings, other indirect or contingent event-based economic loss, or any other loss or damage of any kind or nature whatsoever ("Losses") arising out of or in connection with the Platform, this Agreement, User's use or misuse of or participation in the Platform or beta participation (if applicable), cyberattacks, data loss, malware related issues, cyber-ransom, privacy-related or other security breaches, or any and all third party acts or omissions of any kind or nature whatsoever, even if User has been advised of the possibility of such damages. In all instances, Company's aggregate liability to any User, collectively, for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement, whether in contract, tort, indemnification, or negligence, shall be limited to the amount the User paid for use of the Platform. The foregoing limitation shall apply even if the remedies listed in this Agreement fail of their essential purpose.
15. Insurance
As a material condition to this Agreement, User shall maintain at all times during the Term of this Agreement insurance policies that User or its advisors deem necessary or advisable to protect User's devices, data, and equipment, providing coverage against cyberattacks, data loss, malware related issues, cyber-ransom, privacy-related or other security breaches, and other typical cyberinsurance coverages, as User acknowledges and agrees such incidents can occur even under a "best practices" scenario.
16. Indemnification
User shall indemnify, defend, and hold harmless the Company Representatives (in this section also referred to as an "Indemnified Party," collectively, "Indemnified Parties") from and against any and all losses, damages, claims, causes of action, lawsuits, investigations, judgments, and other legal or adverse action ("Disputes") arising out of or relating to User's: (a) Losses as defined in Section 12, (b) violation of any obligation under this Agreement or any other agreement with any party, (c) negligence, (d) violation of law, rule, regulation, ordinance, judicial or other government order, (e) violation of any third party right, (f) willful misconduct, or (g) tortious act or omission, any or all of the foregoing by User or any User representative (collectively, "Claims"), including any and all actual damages incurred by an Indemnified Party, including without limitation economic damages, statutory damages, consequential damages, or damages of any other kind for which an Indemnified Party is held liable or incurs via settlement of Claims, plus attorney's fees for counsel of the Indemnified Party's choosing, third party attorney's fees for which an Indemnified Party is held liable or incurs via settlement of Claims, and all costs associated with the Indemnified Party's defense of any such Claims at all levels of pre-litigation, litigation, settlement, trial, appeal, enforcement, and bankruptcy, all less any insurance proceeds covering or related to same. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any Claim for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim. Each Indemnified Party shall have the sole right and option to settle any Claims against it.
17. Suspension; Termination
Company may suspend or terminate User's account upon User's breach of the Agreement, with or without opportunity to cure. Accounts may also be suspended during any period in which Company deems it necessary to suspend the Platform's operation for any reason or no reason; and Company may terminate the Platform, User accounts, and this Agreement at any time for any reason or no reason.
18. Effect of Termination
Upon any termination of this Agreement, User shall return to Company any materials, equipment, tools, documents, information, physical or digital or virtual files, or any other item of any nature belonging to Company which was provided to User or to which User was given access during the Term of the Agreement. For any paid services, User will be responsible for payments up to the effective date of termination. There are no refunds.
19. Compliance
The Platform does not, is not intended, and User shall not use it for, to bring User into compliance with any law, rule, regulation, or requirement that may be applicable to User's reason for using the Platform.
20. Updates
We may update these Terms of Service in response to changing laws or technical or business developments, or for any other reason in Company's sole discretion. Your use of the Platform constitutes your acceptance of the then-current Terms of Service.
21. Non-Disparagement
During the Term of this Agreement and for as long as the law allows, User acknowledges and agrees that User shall maintain professional decorum, even in the event of disagreement or dispute. User shall not, nor encourage others to, disparage Company, or any of its Company Representatives as defined in the Limitations on Liability section, or family members of any of the foregoing, or the products or services of any of the foregoing (collectively, "Protected Parties"). For purposes of this Agreement, the term "disparage" includes, without limitation:
- derogatory or inflammatory, opinionated or unsubstantiated, comments or statements to the press, on social media, or otherwise to the public, that would adversely affect in any manner, any business (including plans or prospects), business reputation, product or service, or product or service reputation, of a Protected Party.
- attempts at "doxing" a Protected Party (i.e. obtaining public or private information about the person/company and disseminating it in a manner intended to cause harm of any kind), or attempting to have a Protected Party "canceled" (i.e. to adversely influence public perception of the person/company to induce loss of job, business, or social life).
Nothing herein shall prohibit a person or entity from making factual statements supported by evidence, provided that such facts are presented in a factual, professional, non-inflammatory manner.
22. Assignment
User may not assign this Agreement without the advance written consent of Company, which consent may be withheld, conditioned, or delayed, in Company's sole discretion. Company may assign this Agreement without written notice to User. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. A change in control of a corporate User shall be deemed an assignment.
23. Severability
It is not the intent of the parties to exceed the bounds of the law. If any term or provision of this Agreement is deemed unenforceable as written, it shall, if possible, be revised as closely as possible to the parties' original intent in a manner consistent with the law, or else deleted if no legal revision is possible, and in any case the remainder of this Agreement shall remain in full force and effect, as closely as possible to the Agreement's original intent.
24. Rejection of All Other Conditions and Standard Forms
The parties expressly waive and reject any other terms or conditions printed on any purchase order, invoice, memorandum, standard form, or other written communication supplied by you unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.
25. No Waiver
The failure of Company to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
26. Further Assurances
User agrees to execute any and all other documents reasonably necessary for the enforcement, effectiveness, or perfection of any term or provision of this Agreement.
27. Survival
The provisions contained in this Agreement which by their terms expressly survive, or which for their complete fulfillment must survive, termination or expiration of this Agreement, shall survive, including specifically, but without limitation, terms and provisions relating to payment (if applicable), protection of Intellectual Property, non-disparagement, and dispute resolution terms.
28. Arbitration
Except as provided below, any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be settled by arbitration before one (1) arbitrator who is mutually agreed upon by the parties, or if the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall be administered and conducted by the American Arbitration Association (the "AAA") in Hillsborough County, Florida, pursuant to the selected forum's arbitration rules for commercial disputes (the "Rules"). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, then to the extent allowed by law, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property, and software/information technology transactions. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. The parties shall split the cost of the arbitrator's fees, and otherwise shall pay their own attorney's fees, costs, and expenses. The arbitrator's findings of fact shall be binding, but a party may appeal to a court of law as to matters of law and for enforcement.
Exceptions to arbitration requirement: At the option of the plaintiff, any claim for temporary, preliminary, or permanent injunctive relief to enjoin infringement or other misuse of intellectual property rights, or for violation of confidentiality, non-competition, non-solicitation, non-disparagement terms, or to prevent imminent or ongoing property damage or injury to person or property may be brought in a court of law.
29. Governing Law; Venue
This Agreement shall be governed by, and construed in accordance with, the laws of the United States and the State of Florida, without giving effect to Florida's conflicts of laws rules, and regardless of the place or places of its physical execution and performance. User and the Company hereby (a) consent to the personal jurisdiction of the state and federal courts serving Hillsborough County, Florida, United States (b) stipulate that the exclusive venue and seating for any mediation, arbitration, or other legal proceeding arising out of this Agreement is Hillsborough County, Florida, United States, and (c) waive any defense, whether asserted by motion or pleading, that Hillsborough County, Florida, United States is an improper or inconvenient venue. The parties consent to video appearances for all appearances, except as otherwise required by a court.
30. Waiver of Jury Trial
AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION (INCLUDING IF FILED IN VIOLATION OF THE ARBITRATION REQUIREMENT) RELATED TO, BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE TRANSACTIONS DESCRIBED OR CONTEMPLATED HEREBY, AND/OR ANY RELATIONSHIP, COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY INCLUDING, BUT NOT LIMITED TO, SUBSEQUENT ACTIONS TAKEN IN ENFORCEMENT OF ANY PARTY'S RIGHTS UNDER THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY EACH PARTY, AND EACH SUCH PARTY ACKNOWLEDGES THAT NONE OF THE OTHER PARTIES NOR ANY PERSON ACTING ON BEHALF OF ANY OTHER PARTY HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. EACH PARTY HEREBY FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION, AND FURTHER HAS HAD THE OPPORTUNITY TO HAVE THE LEGAL COUNSEL OF ITS CHOOSING REVIEW THIS WAIVER AND THE ENTIRE AGREEMENT, OR ELSE HAS WAIVED SUCH OPPORTUNITY. IT IS THE PARTIES' INTENTION THAT BY THIS WAIVER, ANY DISPUTE OF ANY NATURE WHATSOEVER, IN CONTRACT OR IN TORT OR OTHERWISE, OR IN ANY WAY WHATSOEVER RELATED TO BUSINESS BETWEEN THEM SHALL NOT BE TRIED BY A JURY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
31. Waiver of Class Action
AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, AND WITHOUT WAIVING ANY REQUIREMENTS FOR MEDIATION AND ARBITRATION (IF APPLICABLE), AND TO THE EXTENT ALLOWED BY LAW, THE PARTIES AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.
32. Attorney's Fees
In the event of any dispute arising under this Agreement (including if filed in violation of the Arbitration requirement), whether or not a lawsuit or other proceeding is filed, each party shall pay their own attorney's fees, costs, and expenses, regardless of outcome.
33. Notices
Where notice is required or permitted to be provided to a party under this Agreement, Company may provide notice to You via the email address associated with your account. It is your obligation to update your email address and other contact information as applicable. User notices to Company shall be sent by certified postal mail or trackable courier as follows. Notice will be deemed delivered the earlier of actual receipt or: three (3) business days after being deposited in postal mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx, DHL, or other reputable, trackable, overnight courier, or one (1) day after notice is delivered by email.
34. Language Translation
In the event of translation of this Agreement into any other language, the English translation shall govern.
35. Counterparts
This Agreement may be executed electronically, including online, or otherwise in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.rightsignature.com, www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
For legal inquiries or to submit notices, contact: admin@delalunaanswers.com