User is granted a non-exclusive, non-transferable, limited license to access Lotmom. Lotmom consists of various databases, services, functions and remotely accessed gateways (collectively "Features"), which may change from time to time. Access to certain Features may be restricted or may be subject to a separate fee. Certain Features may be provided to User for free; Lotmom reserves the right to charge a fee for such free Features in the future upon written notice to the User. User is licensed to use data made available on Lotmom ("Data" includes "Downloaded Data" as defined below) solely in the regular course of operating a mobile food vending facility. Certain Features are licensed subject to paragraphs 2 through 3 or subject to 'Additional Terms" (as defined below), all of which take precedence over the license granted in this paragraph. Except as otherwise provided with respect to particular Data, the license includes the right to download and temporarily store insubstantial portions of Data ("Downloaded Data") to a storage device under User's exclusive control solely (i) to display internally such Downloaded Data and (ii) to communicate and execute transactions with other parties within the Lotmom environment. User agrees to never store any Data for more than seven (7) days and to destroy any stored Data within twenty-four (24) hours upon email or other written request from Lotmom.
c. Rights in Data.
Except for the license granted in this Agreement, all rights, title and interest in Data, in all languages, formats and media throughout the world, including any copyrights, are and will continue to be the exclusive property of Lotmom.
d. User Content.
When providing Lotmom with content or posting content on LotMom's website, User grants Lotmom a non-exclusive, perpetual, transferable, irrevocable, assignable, royalty-free, fully paid up, sub-licensable (through multiple tiers) right and license to use, reproduce, distribute (through multiple tiers), create derivative works from, publicly perform, display, store, digitally perform, make or deliver digital audio transmissions, encode, transcode, publish (online, on the Site, on any other website(s), as well as through mobile channels, and offline, in print, radio, television or elsewhere), make, have made, sell, offer for sale, import and commercialize User Content, or any portion thereof, in any manner and context, in any way, in any and all media now known or hereinafter developed and on any device(s), whether or not portable, wired, or wireless, without limitation, throughout the universe, and without any compensation or acknowledgment to you or any third party.
e. Additional Terms.
Certain Features may be governed by terms and conditions that are different from those set forth in this Agreement ("Additional Terms"). User will be given an opportunity to review Additional Terms by receiving notice of such Additional Terms In writing or online. Additional Terms may be modified effective upon Lotmom giving User notice (in writing or online) of the modification. By using Features governed by Additional Terms, User agrees to, and will be obligated to comply with, all such Additional Terms as well as the terms and conditions in this Agreement. All Additional Terms will be considered part of this Agreement.
2. Fees and Modification of Fees.
Fees payable by User for access to Lotmom ("Lotmom Fees") will commence on the date Lotmom processes User's order. User agrees not to register under a false name or use an invalid or unauthorized Payment Method. Lotmom Fees will be as stated in the Schedule A Price Plan elected by User or as otherwise agreed upon In writing by the parties. Lotmom Fees may be modified upon at least 30 days prior notice to User in writing or online. Fees are exclusive of sales, use, value added tax (VAT) or equivalent, ad valorem, personal property and other taxes, which are the responsibility of User. User will pay all invoices in full within 30 days of receipt. If full payment is not made, User may be charged up to the maximum legal interest on any unpaid balance.
3. Third Party Payment Management.
4. Lotmom Software and lotmom.com.
a. Lotmom Software.
Lotmom may make available to User, on a subscription basis, software for use in connection with Lotmom. Such software, including new versions and the accompanying user documentation, may be referred to collectively as "Software." Software may be licensed to User under a license agreement that will accompany the Software. By using the Software and taking such other action as may be referenced in the Agreement as constituting acceptance, User agrees to be bound by the terms and conditions of the accompanying license agreement. If User does not so agree, User must return any tangible copies of the Software in Its possession or control.
lotmom.com is an Internet-based service that provides access to Lotmom. Lotmom grants User a non-exclusive, non-transferable, limited license to use lotmom.com (including all versions and updates). User may not reverse engineer, decompile, disassemble, scrape or otherwise attempt to discern the source code of the components of lotmom.com nor may User reproduce all or any portion of the components of lotmom.com. User may use Data cached in User's local disk drive solely in support of its use of lotmom.com. Certain software used by User may not be capable of supporting lotmom.com.
5. Disclaimer of Warranties and Limitation of Liability.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, ANY SCHEDULE OR LICENSE AGREEMENT, LOTMOM, FEATURES, DATA, SOFTWARE AND LOTMOM.COM ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS AND DELAYS. USER'S EXCLUSIVE REMEDY AND LOTMOM'S AND/OR ITS AFFILATES' ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIMS FOR DAMAGES RELATING TO LOTMOM, FEATURES, DATA, SOFTWARE OR LOTMOM.COM MADE AGAINST THEM, INDIVIDUALLY OR JOINTLY, WHETHER BASED IN CONTRACT OR NEGLIGENCE, SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF LOTMOM CHARGES PAID BY USER RELATIVE TO THE SPECIFIC FEATURE (i.e., DATABASE, SERVICE, FUNCTION OR GATEWAY), THE SOFTWARE OR LOTMOM.COM, AS APPLICABLE, WHICH IS THE BASIS OF THE CLAIMS DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL LOTMOM AND/OR ITS AFFILIATES BE LIABLE TO USER FOR ANY CLAIM RELATING IN ANY WAY TO (i) USER'S INABILITY OR FAILURE TO PERFORM UNDER ANY CONTRACT; (ii) ANY LOST PROFITS OR OTHER CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES RELATING IN WHOLE OR IN PART TO USER'S RIGHTS UNDER THIS AGREEMENT OR USE OF, OR INABILITY TO USE, LOTMOM, FEATURES, DATA, SOFTWARE OR LOTMOM.COM, EVEN IF LOTMOM AND/OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, LOTMOM SHALL HAVE NO LIABILITY WHATSOEVER TO USER FOR ANY CLAIM RELATING IN ANY WAY TO ANY THIRD PARTY REPRESENTATIONS ACCESSED THROUGH LOTMOM. NEITHER LOTMOM NOR AFFILIATES MAKE ANY WARRANTY THAT ACCESS TO LOTMOM.COM WILL BE UNINTERRUPTED, SECURE, COMPLETE, UP-TO-DATE, OR ERROR FREE. NOR DOES LOTMOM MAKE ANY WARRANTY AS TO THE LIFE OF ANY URL OR THIRD PARTY WEB SERVICE. USER ACKNOWLEDGES THAT PROVISION OF LOTMOM ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA. FURTHER, LOTMOM DOES NOT MAKE ANY GUARANTEES OR ENDORSEMENTS, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PARTY OPERATING IN THE LOTMOM.COM WEBSITE; LOTMOM DOES NOT GUARANTEE THE PERFORMANCE OF ANY CONTRACT FORMED BY USERS IN THE LOTMOM SYSTEM, AND IN NO CASE WILL LOTMOM BE LIABLE FOR THE FAILURE OF ANY USER TO PERFORM UNDER ANY CONTRACT.
6. Responsibility for Certain Matters.
User is responsible for notifying Lotmom in writing of persons to whom Lotmom passwords are to be issued or from whom passwords are to be revoked. User is solely responsible for maintaining security of Lotmom passwords. User is also responsible for all access to and use of Lotmom, including Features, Software and lotmom.com by User's personnel or Lotmom passwords, whether or not User has knowledge of or authorizes such access and use. All such use shall be governed by the terms of this Agreement.
In the event of any claim by any third party against Lotmom, its officers, employees, or its affiliates, arising from any action, omission, or breach by User, User agrees to defend, indemnify and hold harmless Lotmom and its affiliates against any judgment, award, liability, loss, cost or damages (including litigation costs and reasonable attorney's fees).
8. Limitation of Claims.
Except for claims relating to Lotmom Fees or improper use of Lotmom, Features, Software or lotmom.com, no claim, regardless of form, which in any way arises out of this Agreement, may be made, nor such claim brought, under this Agreement more than one year after the basis for the claim becomes known to the party desiring to assert it.
9. Term and Termination.
This Agreement will become effective upon approval and acceptance by Lotmom, and will continue in force until terminated by either party upon at least 30 days prior written notice of termination to the other party. Notwithstanding the foregoing, (i) Lotmom may terminate this Agreement immediately upon giving written notice of termination to User if User commits a material breach of any obligation to Lotmom under any agreement between the parties; (ii) User may terminate this Agreement immediately upon giving written notice of termination to Lotmom after receiving notice of an amendment (as permitted under paragraphs 1(d) and 9) which contains new terms that materially alter the terms of this Agreement and are unacceptable to User; and (iii) either party may terminate this Agreement immediately upon giving written notice of termination to the other party if the other party commits a material breach of this Agreement. All terms constituting an indemnity, duty to defend, hold harmless, or relating to intellectual property of any type shall continue in effect so long as legally permissible.
10. Representations and Notification
User makes the representations contained in Schedule A as to the scope of its activities. User understands that Lotmom relies upon these representations when deciding whether to enter into this Agreement with User. User will promptly notify Lotmom if any of the representations made in Schedule A cease to be true. Lotmom may adjust the applicable Fees through an amendment to this Agreement based on the new representations. Failure to notify Lotmom of a change in the represented information will constitute a material breach of this agreement.
11. Entire Agreement.
This agreement (including all current and future Schedules, Additional Terms and license agreements and the like) embodies the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter. Except as otherwise provided in this Agreement, Lotmom may amend the terms and conditions of this Agreement without notice to User.
12. Force Majeure.
Lotmom's performance under this Agreement Is subject to interruption and delay due to causes beyond its reasonable control, such as acts of God, acts of any government, war or hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, Industrial or labor dispute, inability to obtain necessary supplies and the like.
Except as otherwise provided herein, all notices must be in writing and addressed to Lotmom, Inc., 13101 Washington Boulevard, Ste 407, Culver City, CA 90066.
14. Other Provisions.
This Agreement will be governed by and construed under the law of the state of California, USA without regard to conflicts of law provisions. The parties agree that the state and federal courts sitting in California will have exclusive jurisdiction over any claim arising out of this Agreement and each party consents to the exclusive jurisdiction of such courts. Neither this Agreement nor any part or portion may be assigned, sublicensed or otherwise transferred by User without Lotmom's prior written consent. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby. Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement. Lotmom, as used herein, applies to Lotmom Inc., and its affiliates.
15. Intellectual Property.
Any and all title, ownership rights, and intellectual property rights concerning any ideas, concepts, suggestions, materials and the like that User provides to Lotmom regarding Lotmom, lotmom.com or Lotmom Software shall become the exclusive property of Lotmom and may be used for its business purposes in sole discretion without any payment, accounting, remuneration or attribution to User. Furthermore, with respect to any content in which User has prior intellectual property rights, including User logos and other trademarks, User grants Lotmom a worldwide royalty free license to use and display such content on the Lotmom websites and affiliated websites. All other logos, designs, trade dress, and data contained on or accessed through the Lotmom website are the exclusive property of Lotmom.
By use of Lotmom, User hereby consents to all the terms of this Agreement and acknowledges that User's license is consideration for User's consent. User's continued use of Lotmom subsequent to any change in these terms shall constitute acquiescence, agreement, and consent to any new or different terms.