This is a legal agreement ("Agreement") between you and Lunasoft LLC, a Hawaii corporation ("Lunasoft"), which may be contacted at P.O. Box 4793, Kaneohe, HI 96744 USA. By accessing the web site, currently located at www.EquallyYokedSingles.com (the "Site"), and using any of the Services (as defined below) accessible through the Site, you become a user and agree to, and are bound by, the terms and conditions of this Agreement for as long as you continue to use the Site or Services. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT USE THE SITE OR THE SERVICES. Your use of, or participation in, certain Services may be subject to additional terms, and such terms will be either listed in this Agreement or will be presented to you for your acceptance when you sign up to use such Services.
The Lunasoft services consist of the following, without limitation: a service for single people ("Singles Service"), any premium services offered by or on behalf of Lunasoft ("Premium Services") (collectively, the "Services"). Lunasoft may offer additional services or revise any of the Services, at its discretion, and this Agreement will apply to all additional services or revised Services. Lunasoft also reserves the right to cease offering any of the Services.
This Agreement is subject to change by Lunasoft in its sole discretion at any time, and any such changes will be posted on the Site. Your continued use of this Site or the Services after the posting of revisions to this Agreement will constitute your acceptance of such revisions. Please consult the beginning or end of this Agreement to determine when the Agreement was last revised.
- Minimum Age. You must be at least 18 years old to use the Site or to register for the Services. By using the Singles Service, you represent and warrant that you are at least 18 years old. Other Services may have other age requirements for all or portion of such Services, and such other age requirements are stated on such Services or portions thereof.
- Marital Status. By registering to use or using the Singles Service, you represent and warrant that you are single or (if legally married) separated. If you are married and not separated, you may not register to use or use the Singles Service.
- Criminal History. By requesting to use, registering to use, and/or using the Singles Service, you represent and warrant that you have never been convicted of a felony and/or are not required to register as a sex offender with any government entity. LUNASOFT DOES NOT CURRENTLY CONDUCT CRIMINAL BACKGROUND SCREENINGS ON ITS MEMBERS. However, Lunasoft reserves the right to conduct any criminal background check, at any time and using available public records, to confirm your compliance with this subsection. BY AGREEING TO THESE TERMS AND CONDITIONS, YOU HEREBY AUTHORIZE ANY SUCH CHECK.
- Meeting Matching System Criteria. The Service requires your completion of the Match Preferences form in order for Lunasoft to find highly compatible matches for you. However, Lunasoft may still deliver matches to you if you have not completed the Match Preferences form.
2. Use of Site and Service.
As a user of the Site or a user registered to use any of the Services (a "Registered User"), you agree to the following:
- Exclusive Use. Your account is for your personal use only. You may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Lunasoft is not responsible for third party access to your account that results from theft or misappropriation of your user names and passwords.
The Site and Services are intended for use in the United States.
You will only use the Services in a manner consistent with this Agreement and any and all applicable local,
state, national and international laws and regulations, including, but not limited to, United States export
control laws. By using the Services, you represent that you have not been designated by
the United States government as a "Specially Designated National" or other person to whom the provisions of the Services
are prohibited. Registration for, and use of, the Services are void where prohibited. You are responsible for determining
whether the user of the Services is legal in your jurisdiction
- Information Submitted. You are solely responsible for, and assume all liability regarding, (i) the information and content you contribute to the Service; (ii) the information and content you post, transmit, publish, or otherwise make available (hereinafter "post") through the Services; and (iii) your interactions with other Registered Users through the Services. In addition to sharing your information with your matches, we may allow your matches to share your profile information with members of their social network(s).
- Risk Assumption and Precautions. You assume all risk when using the Services, including but not limited to all of the risks associated with any online or offline interactions with others, including dating. You agree to take all necessary precautions when meeting individuals through the Singles Service. In addition, you agree to review and follow the recommendations set forth in our Safety Tips, which will be provided to you prior as part of your welcome email and is available at the bottom of all pages of the Singles Service.
- No Guarantees. Lunasoft may not be able to provide matches for everyone seeking to use its services. Further, Lunasoft makes no guarantees as to the number or frequency of matches through the Singles Service , or to such matches' ability, desire or criteria to communicate with any user. You understand that Lunasoft makes no guarantees, either express or implied, regarding your ultimate compatibility with individuals you meet through the Singles Service or as to the conduct of such individuals.
- Reporting of Violations. You will promptly report to Lunasoft any violation of the Agreement by others, including but not limited to, Registered Users.
- Content Removal. Lunasoft reserves the right, but has no obligation, to monitor the information or material you submit to the Services or post in the public areas of the Services. Lunasoft will have the right to remove any such information or material that in its sole opinion violates, or may violate, any applicable law or either the letter or spirit of this Agreement or upon the request of any third party. Lunasoft further reserves the right to remove matches previously delivered to you, in its reasonable discretion, in order to assure that you have a quality experience on the Site.
Posting and Communication Restrictions. You will not post on the Services, transmit to other users, communicate any content (or links thereto), or otherwise engage in any activity on the Site or through the Services, that:
- promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- is intended to or tends to harass, annoy, threaten or intimidate any other users of the Site or Services;
- is defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, obscene or otherwise objectionable;
- contains others' copyrighted content (e.g., music, movies, videos, photographs, images, software, etc.) without obtaining permission first;
- contains video, audio photographs, or images of another person without his or her permission (or in the case of a minor, the minor's legal guardian);
- promotes or enables illegal or unlawful activities, such as instructions on how to make or buy illegal weapons or drugs, violate someone's privacy, harm or harass another person, obtain others' identity information, create or disseminate computer viruses, or circumvent copy-protect devices;
- intended to defraud, swindle or deceive other users of the Services;
- contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices;
- promotes or solicits involvement in or support of a political platform, religion, cult, or sect;
- disseminates another person's personal information without his or her permission, or collects or solicits another person's personal information for commercial or unlawful purposes;
- is off-topic, meaningless, or otherwise intended to annoy or interfere with others' enjoyment of the Site;
- impersonates, or otherwise misrepresents affiliation, connection or association with, any person or entity;
- solicits gambling or engages in any gambling or similar activity;
- uses scripts, bots or other automated technology to access the Site or Services;
- uses the Site or Services for chain letter, junk mail or spam e-mails;
- collects or solicits personal information about anyone under 18; or
- is in any way used for or in connection with spamming, spimming, phishing, trolling, or similar activities.
- No False Information. You will not provide inaccurate, misleading or false information to Lunasoft or to any other user. If information provided to Lunasoft or another user subsequently becomes inaccurate, misleading or false, you will promptly notify Lunasoft of such change.
- No Advertising or Commercial Solicitation. You will not advertise or solicit any user to buy or sell any products or services through the Site or Services. You may not transmit any chain letters, junk or spam e-mail to other users. Further, you will not use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent. If you breach the terms of this subsection and send or post unsolicited bulk email, "spam" or other unsolicited communications of any kind through the Services, you acknowledge that you will have caused substantial harm to Lunasoft, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay Lunasoft $50 for each such unsolicited communication you send through the Services.
- Unique and Bona Fide Profile. As a Registered User of the Singles Service, you will create only one unique profile. In addition, your use of the Singles Service must be for bona fide relationship-seeking purposes in order to maintain the integrity of the Singles Service (for example, you may not become a Registered User solely to compile a report of compatible singles in your area, or to write a school research paper). Not all registered users are available for matching. From time to time, Lunasoft may create test profiles in order to monitor the operation of the Services.
- Selection of Profiles. From time to time, your profile may be selected to introduce you to specific compatible matches, in which case we may offer you a limited complimentary subscription (if you are not already a subscriber) in order to enable you to meet such specific match. You will be under no obligation to accept such complimentary subscription or to meet with or communicate with the match(es) we may introduce to you.
- No Harassment of Lunasoft Employees or Agents. You will not harass, annoy, intimidate or threaten any Lunasoft employees or agents engaged in providing any portion of the Services to you.
3. Proprietary Rights.
- Ownership of Proprietary Information. You hereby acknowledge and agree that Lunasoft is the owner of highly valuable proprietary information, including without limitation, the matching system, compatibility profiles, and questionnaires (collectively, "Confidential Information"). Lunasoft owns and hereby retains all proprietary rights in the Services and the Site, including but not limited to, all Confidential Information.
- No Use of Confidential Information. You will not post, copy, modify, transmit, disclose, show in public, create any derivative works from, distribute, make commercial use of, or reproduce in any way any (i) Confidential Information or (ii) other copyrighted material, trademarks, or other proprietary information accessible via the Services, without first obtaining the prior written consent of the owner of such proprietary rights.
- Other Users' Information. Other Registered Users may post copyrighted information, which has copyright protection whether or not it is identified as copyrighted. You agree that you will not copy, modify, publish, transmit, distribute, perform, display, commercially use, or sell any Lunasoft or third party proprietary information available via the Services or the Site.
- License to Posted or Accessed Content. By posting information or content to any profile pages or public area of the Services, or making it accessible to us by linking your account to any of your social network accounts (e.g. via Facebook Connect), you automatically grant, and you represent and warrant that you have the right to grant, to Lunasoft and its users, an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, reproduce, publicly perform, publicly display and distribute such information and content, and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sub-licenses of the foregoing. From time to time, we may create, test or implement new features or programs on the Site in which you may voluntarily choose to participate or may be a part of a test group with special access, in accordance with the additional terms and conditions of such features or programs. By your participation in such features or programs, you grant us the rights stated in this subsection in connection with the additional terms and conditions (if any) of such features or programs.
4. User Information.
- Privacy Statement. For information about the collection and possible use of information and material provided by you, please click on Lunasoft's Privacy Statement located on the Site. By using the Site or the Services, you are consenting to the terms of Lunasoft's Privacy Statement.
- No Contact Information. You agree that you will not post any e-mail addresses, personal website address or profile page you may have on a third party website, or other contact information in the "About Me" section of the Singles Service or in any other communications you may have with other users. You may, at your discretion, exchange such information after you reach the "Lunasoft Mail" phase with your match.
- Disclosure By Law. You acknowledge and agree that Lunasoft may disclose information you provide if required to do so by law, at the request of a third party, or if we, in our sole discretion, believe that disclosure is reasonable to (1) comply with the law, requests or orders from law enforcement, or any legal process (whether or not such disclosure is required by applicable law); (2) protect or defend Lunasoft's, or a third party's, rights or property; or (3) protect someone's health or safety, such as when harm or violence against any person (including the user) is threatened.
- Disclosure to Protect Abuse Victims. Notwithstanding any other provision of this Agreement or the Privacy Statement, Lunasoft reserves the right, but has no obligation, to disclose any information that you submit to the Services, if in its sole opinion, Lunasoft suspects or has reason to suspect, that the information involves a party who may be the victim of abuse in any form. Abuse may include, without limitation, elder abuse, child abuse, spousal abuse, neglect, or domestic violence. Information may be disclosed to authorities that Lunasoft, in its sole discretion, deems appropriate to handle such disclosure. Appropriate authorities may include, without limitation, law enforcement agencies, child protection agencies, or court officials. You hereby acknowledge and agree that Lunasoft is permitted to make such disclosure.
- Use of Anonymous Information for Research. By using the Services, you agree to allow Lunasoft to anonymously use the information from you and your experiences through the Services to continue Lunasoft's research into successful relationships and to improve the Services. This research, conducted by psychologists and behavior research scientists, may be published in academic journals. However, all of your responses will be anonymous, and we will not publish research containing your personal identifying information.
5. Links to Third-Party Web Sites / Dealings with Advertisers and Sponsors.
The Services may contain links to web sites of third-parties, including without limitation, advertisers, which are not under the control of Lunasoft, and Lunasoft is not responsible for the content of any linked site or any link contained in a linked site, or any changes or updates to such web sites. Lunasoft provides these links to you only as a convenience, and the inclusion of any link does not imply that Lunasoft endorses or accepts any responsibility for the content on such third-party web site. Your correspondence or business dealings with, or participation in promotions of, advertisers or sweepstakes sponsors found on or through the Services (including payment and delivery of related goods or services, any personal information or opt-in contact information voluntarily given to advertisers and sweepstake sponsors, and any other terms, conditions, warranties or representations associated with such dealings) are solely between you and such advertiser or sweepstakes sponsor. You agree that Lunasoft will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, including the sharing of the information you supply to Lunasoft with advertisers or sweepstakes sponsors, or as the result of the presence of such advertisers on the Services. Please visit our Privacy Statement to learn more about how we use your information.
6. Disclaimer of Warranty.
- No Warranties. THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. LUNASOFT PROVIDES THE SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE SITE (INCLUDING ALL INFORMATION CONTAINED THEREIN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. LUNASOFT DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. LUNASOFT DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SERVICES.
- Third Party Content. Opinions, advice, statements, offers, or other information or content made available through the Services, but not directly by Lunasoft, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. LUNASOFT DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED ON THE SERVICES, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN LUNASOFT. UNDER NO CIRCUMSTANCES WILL LUNASOFT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM ANYONE'S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICES, OR TRANSMITTED TO OR BY ANY USERS.
- Beta Features. From time to time, Lunasoft may offer new "beta" features or tools with which its users may experiment on the Services. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Lunasoft's sole discretion. The provisions of this Disclaimer of Warranty section apply with full force to such features or tools.
7. Limitation of Liability.
- Incidental Damages and Aggregate Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LUNASOFT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF LUNASOFT KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL LUNASOFT'S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES OR THE SITE, EXCEED THE PRICE PAID BY YOU FOR YOUR ACCOUNT, OR, IF YOU HAVE NOT PAID LUNASOFT FOR THE USE OF ANY SERVICES, THE AMOUNT OF US$25.00 OR ITS EQUIVALENT.
- No Liability for non-Lunasoft Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LUNASOFT BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER REGISTERED USERS OF THE SERVICES. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.
- Information Verification. Lunasoft and its contractors may use various ways of verifying information that users have provided. However, none of those ways are perfect, and you agree that Lunasoft and its contractors will have no liability to you arising from any incorrectly verified information.
You agree to indemnify, defend and hold harmless Lunasoft, its subsidiary and parent companies, and each of their officers, directors, employees, agents and related third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any third party claim that (a) your use of or inability to use the Site or Services, (b) any user postings made by you, (c) your violation of any terms of this Agreement or your violation of any rights of a third party, or (d) your violation of any applicable laws, rules or regulations. Lunasoft reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Lunasoft in asserting any available defenses.
9. Complaints / Law Enforcement Contact.
To resolve a complaint regarding the Service, you should e-mail us by clicking here . Law enforcement officials may send correspondence (such as subpoenas, court orders and warrants) to Lunasoft via e-mail at firstname.lastname@example.org. All other communication or inquiries sent to this e-mail will be discarded.
10. Communication and Privacy.
We may use your email address to send you messages notifying you of important changes to the Services or special offers. Further, we may contact you by telephone if you voluntarily provide us with your telephone number, in order to communicate with you regarding the Services. If you do not want to receive such email messages or telephone calls (including at any wireless number you may have voluntarily provided us), please refer to our Privacy Statement to review your options.
11. Term and Termination.
This Agreement will become effective upon your acceptance of the Agreement by your use of the Site or the Services and will remain in
effect in perpetuity unless terminated hereunder. Fees will be processed by us using your chosen payment method for use of the Singles
Service, Premium Service(s), or any other ancillary services. By subscribing, you authorize us and our payment processors to store your
payment details and all other relevant information in connection with the processing of payments. You may select to purchase a plan in
one upfront payment or in installments, if applicable. You agree and authorize us to charge you applicable sales or other related taxes to which your subscription may be subject and which may vary from time to time.
Either you or Lunasoft may terminate your account at any time, for any reason or no reason, without explanation, effective upon sending
written notice to the other party. Lunasoft reserves the right to immediately suspend or terminate your access to any of the Services,
without notice, for any reason or no reason. We also reserve the right to remove your account information or data from our Services and
any other records at any time at our sole discretion. In the event your access to any of the Services is suspended due to the breach of
this Agreement, you agree that all fees then paid to Lunasoft by you will be nonrefundable. You may terminate your account by following
the steps in the applicable section under "Cancellations" below, or by sending a notice of cancellation to:
Lunasoft LLC, Attn: Cancellations, P.O. Box 4793, Kaneohe, HI 96744 USA. Following any termination of any Registered
User's use of the Singles Service, Lunasoft reserves the right to send a notice thereof to other Registered Users which whom you
Cancellation At Any Time With No Refund. Except as otherwise stated in this section, you may cancel your registration or subscription to any Services at any time during the term of such registration or subscription or any renewal period by accessing the "Account Settings" page under the "My Settings" option on your membership home page, clicking on "Cancel My Subscription" or "Close Account" link, and providing the information requested. In such case, your subscription will terminate at the end of the subscription term for which you have paid, and you will not receive any refund for any unused days of such subscription term. If you purchase a subscription on an installation payment basis (such as three-part pay), cancellation will not affect your obligation to pay the total contractual amount due on your subscription and your credit card will continue to be charged the scheduled payments until the remaining balance is paid in full.
In order to provide continuous service, Lunasoft automatically renews all paid subscriptions for the Services on the date such subscriptions expire. We always communicate renewal periods to you in the subscription plan page, before you finalize the purchase of your subscription, upon confirmation of purchase, and in the body of any special promotions sent to our users. By entering into this Agreement, you acknowledge that your account will be subject to the above-described automatic renewals. In connection with any renewal, you agree and authorize us to charge you applicable sales or other related taxes to which your subscription may be subject and which may vary from time to time. In all cases, if you do not wish your account to renew automatically, please follow the directions set out under "Cancellation At Any Time With No Refund" above.
14. Governing Law
This Agreement is governed by the laws of the State of Hawaii, without giving effect to any principles of conflicts of laws. Notwithstanding
the foregoing, Section 17 of this Agreement shall be governed by the Federal Arbitration Act. If the Arbitration Agreement (as set forth in
Section 16) is held to be unenforceable, you agree that any claims or disputes you have against us must be resolved in the federal or state
courts located in Honolulu, HI.
15. Arbitration Agreement & Class Action Waiver
Purpose: This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between you and Lunasoft. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial.
Please read this Arbitration Agreement carefully. It provides that all disputes between you and Lunasoft 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). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court 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 Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees, if otherwise authorized by applicable law)
For the purpose of this Arbitration Agreement, “Lunasoft” means Lunasoft LLC and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Lunasoft regarding any aspect of your relationship with Lunasoft, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (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.
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 ARBITRATION AGREEMENT.
Pre-Arbitration Dispute Resolution: For all Disputes you must first give Lunasoft an opportunity to resolve the Dispute. You must commence this process by mailing written notification to P.O. Box 4793, Kaneohe, HI 96744 USA. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If Lunasoft does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
Arbitration Procedures: If this Arbitration Agreement applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or Lunasoft 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 a representative or class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement.
For arbitration before the 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 Arbitration Agreement 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 your contract with Lunasoft, the Terms of Service, and this this Arbitration Agreement 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 shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator 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 may initiate arbitration in either Honolulu, HI or in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution. In the event that Lunasoft initiates an arbitration, it may only do so in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution.
Payment of Arbitration Fees and Costs: Lunasoft 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 Lunasoft as provided in the section above titled “Pre-Arbitration Dispute Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover from Lunasoft your actual and reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver: The parties agree that 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, representative action, consolidated action or private attorney general action) unless both you and Lunasoft specifically agree in writing to do so following initiation of the arbitration. Neither you, nor any other Member of Lunasoft and/or user of Lunasoft services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding.
Limitation of Procedural Rights: You understand and agree that, by entering into this Arbitration Agreement, you and Lunasoft are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and Lunasoft 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). You give up those rights. 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 in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
Severability: If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.
- Continuation: This Arbitration Agreement shall survive the termination of your contract with Lunasoft and your use of Lunasoft services.
16. General Provisions.
- Right to Seek Injunction. Violation of this Agreement may cause Lunasoft irreparable harm, and therefore agree that Lunasoft will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that Lunasoft may have for a breach of this Agreement.
- Miscellaneous. This Agreement, which you accept upon registration for the Services, the Privacy Statement located on the Site, and any applicable payment, renewal, additional Services terms, comprise the entire agreement between you and Lunasoft regarding the use of this Service, superseding any prior agreements between you and Lunasoft related to your use of this Site or Services (including, but not limited to, any prior versions of this Agreement). The FAQ's found on the Services are for informational purposes only and are not deemed to be part of this Agreement. Unless otherwise explicitly stated, the Agreement will survive termination of your registration to the Service. The failure of Lunasoft to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
17. Digital Millennium Copyright Act Notice.
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on this Site, please notify Lunasoft's copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim is being infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Site;
4. Information reasonably sufficient to permit Lunasoft to contact you, such as your address, telephone number, and e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Designated Copyright Agent
P.O. Box 4793, Kaneohe, HI 96744 USA
email@example.com (only DMCA notices will be accepted at this email address. All other inquiries or requests will be discarded)
18. Revision Date.
This Agreement was last revised on October 11, 2019.
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