Terms of Use

Date of Last Revision: November 06, 2019 

 

Welcome to Illumix!

Illumix, Inc. (“Illumix,” “we,” “us,” “our”) provides its services (which are described further below) to you through illumix.com and related websites (the “Sites”) and through its mobile applications (the “Apps”) and related services (collectively, such services, including any new features and Apps, and the Sites, the “Service(s)”), subject to the following Terms of Use (as amended from time to time, the “Terms of Use”). You understand and agree that we may change this Agreement at any time without prior notice. You may read a current, effective copy of this Agreement at any time by selecting the “Terms of Use” link on the Sites. The revised terms and conditions will become effective at the time of posting. Any use of the Sites after such date shall constitute your acceptance of such revised terms and conditions. If any change to this Agreement is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Sites.

 

PLEASE READ THESE TERMS OF USE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.  THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST ILLUMIX ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.

 

In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy located at [https://illumix.com/privacy-policy/] All such terms are hereby incorporated by reference into these Terms of Use. 

 

Access and Use of the Service


Services Description and License:  Subject to your compliance with these Terms of Use, Illumix grants you a limited, nonexclusive, non-transferable, non-sublicensable license to use the Services and Apps, including by downloading and installing a copy of the Apps on a mobile device and to run such copy of the Apps solely for your own personal non-commercial purposes.  

 

Your Registration Obligations: You may be required to register with Illumix in order to access and use certain features of the Services or Apps.  If you choose to register for the Service or any Apps, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the applicable registration form.  Registration data and certain other information about you are governed by our Privacy Policy

 

Registration by Minors: The Service and our Apps are not directed to children. If you are under 13 years of age (or under 16 years of age if you live in the European Union), you are not authorized to use the Service, including any Apps, with or without registering.

 

You Must Comply with Applicable Laws: The Sites are hosted in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Web Site or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

 

The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.

 

Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Illumix of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Illumix will not be liable for any loss or damage arising from your failure to comply with this Section.

 

General Practices Regarding Use and Storage: You acknowledge that Illumix may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Illumix’s servers on your behalf. You agree that Illumix has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Illumix reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Illumix reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

 

Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to engage with and upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through Apps downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply.  In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.

 

Intellectual Property Rights

 

Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws.  Except as expressly authorized by Illumix, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service.  The technology and software underlying the Service or distributed in connection therewith are the property of Illumix, our affiliates and our partners (the “Software”).  You agree not to copy, modify, create derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software.  Any rights not expressly granted herein are reserved by Illumix.

 

The Illumix name and logos are trademarks and service marks of Illumix (collectively the “Illumix Trademarks”). Other Illumix, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Illumix. Nothing in these Terms of Use or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Illumix Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Illumix Trademarks will inure to our exclusive benefit.

 

Third Party Material:  Under no circumstances will Illumix be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content.  You acknowledge that Illumix does not pre-screen content, but that Illumix and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Illumix and its designees will have the right to remove any content that violates these Terms of Use or is deemed by Illumix, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. 

 

User Content Transmitted Through the Service:  With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein.  By uploading any User Content you hereby grant and will grant Illumix and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Apps or other Services or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.  

 

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Illumix are non-confidential and Illumix will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.  

 

You acknowledge and agree that Illumix may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Use; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Illumix, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

 

Copyright Complaints: Illumix respects the intellectual property of others, and we ask our users to do the same.  If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Illumix of your infringement claim in accordance with the procedure set forth below.

 

Illumix will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement.  A notification of claimed copyright infringement should be e-mailed to Illumix’s Copyright Agent at legal@illumix.com (Subject line:  “DMCA Takedown Request”).

 

To be effective, the notification must be in writing and contain the following information: 

 

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; 
  • a description of the copyrighted work or other intellectual property that you claim has been infringed; 
  • a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service; 
  • your address, telephone number, and email address; 
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; 
  • a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. 

 

Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent: 

  • your physical or electronic signature; 
  • identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; 
  • a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and 
  • your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement. 

If a counter-notice is received by the Copyright Agent, Illumix will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

 

Repeat Infringer Policy:  In accordance with the DMCA and other applicable law, Illumix has adopted a policy of terminating, in appropriate circumstances and at Illumix’s sole discretion, users who are deemed to be repeat infringers.  Illumix may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.


Modifications to Service: Illumix reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Illumix will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

 

Conditions of Use 

 

Safe and Appropriate Use:  Please be aware of your environment while using our Services or Apps by playing safely and communicating with those around you. You acknowledge and agree that your use of the Services, including any Apps, is at your own risk, and that you will not use the Services to violate any applicable law, regulation, or instructions as outlined in these Terms of Use and you will not encourage or enable any other individual to do so.

 

Interactions with Others:  You agree that you will maintain safe and appropriate contact with other players and other people in the real world while using the Services. You agree that you will not violate the legal rights of others while using the Services, including, without limitation, by trespass, or in any manner gaining (or attempting to gain) access to any property or location where you do not have a right or permission to be. You further agree that you will not otherwise engage in any activity that may result in injury, death, property damage, nuisance, or liability of any kind. If you have a dispute with any third party relating to your use of Services, you release Illumix (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

 

Cheating:  Illumix does not allow cheating, which includes any action that attempts to or actually interferes with the normal behavior of the Service. Cheating includes, without limitation, any of the following behavior, on your own behalf or on behalf of others:

 

  • Gaining access to the Services in an unauthorized manner (including using modified or unofficial third party software);
  • Using multiple accounts for the same Service;
  • Sharing accounts between multiple users;
  • Using any techniques to alter or falsify a device’s location; and/or
  • Selling or trading accounts.

 

If we detect or reasonably suspect that you are using the Services for unauthorized uses or other forms of cheating, we reserve the right to suspend and/or terminate your account. We will not provide support to players who attempt to cheat. You agree that we may employ any lawful mechanisms to detect and respond to cheating, fraud, and other behavior prohibited under these Terms of Use, including checking your device for the existence of exploits or hacking and/or unauthorized software.

 

User Conduct: You are solely responsible for all video, images, information, data, text, code, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service, including any of the Apps.  The following are examples of the kind of content and/or use that is illegal or prohibited by Illumix.  You agree to not use the Service to:

 

  1. Email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Illumix, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Illumix or its users to any harm or liability of any type;
  2. Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or 
  3. Violate any applicable local, state, national or international law, or any regulations having the force of law; 
  4. Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  5. Solicit personal information from anyone under the age of 18;
  6. Harvest or collect email addresses or other personally identifiable information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
  7. Advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
  8. Further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
  9. Obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service. 
  10. Engage in or use any data mining, robots, scraping or similar data gathering or extraction methods.  
  11. Others?

 

Virtual Money and Virtual Goods: Certain Services and/or Apps permit the purchase of virtual currency (“Virtual Money“) and use of that Virtual Money to purchase virtual items or services expressly available for use in the respective Apps (“Virtual Goods”). Virtual Money is a category of Service Content (as defined below). You may access and purchase Virtual Goods for your personal, non-commercial use of the Services. You acknowledge that you do not acquire any ownership rights in or to the Virtual Money or Virtual Goods. Any balance of Virtual Goods or Virtual Money does not reflect any stored value and you agree that Virtual Money and Virtual Goods have no monetary value and do not constitute currency or property of any type. Virtual Money may be redeemed only for Virtual Goods and can never be sold, transferred, or exchanged for “real” money, “real” goods, or “real” services from us or anyone else. You agree that you will only obtain Virtual Money and/or Virtual Goods from us and through means provided by us, and not from any third party unless expressly authorized. Once you acquire a license to Virtual Money or Virtual Goods, you may not transfer them to another individual or account. Any such sale, transfer, or exchange (or attempt to do so) is prohibited, is a violation of these Terms and may result in cancellation of such Virtual Money or Virtual Goods or the termination of your Account.

 

During the term of your license to your Virtual Money, you may redeem your Virtual Money for selected Virtual Goods. As set forth below, all Virtual Money, Virtual Goods, and other Content is provided “as is,” without any warranty. You agree that all sales by us to you of Virtual Money and Virtual Goods are final and that we will not permit exchanges or refunds for any unused Virtual Money or Virtual Goods once the transaction has been made.

 

Generally, we have the right to offer, modify, eliminate, and/or terminate Virtual Money, Virtual Goods, the Content, and/or the Services, or any portion thereof, at any time, without notice or liability to you. If we discontinue the use of Virtual Money or Virtual Goods, we will provide at least 60 days advance notice to you by posting a notice through the Services or through other communications.

 

Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.  The Service is for your personal use.

Third Party Distribution Channels

Illumix offers Apps and related Software (as defined below) that may be made available through the Apple App Store, Google Play Store or other distribution channels (“Distribution Channels”).  If you obtain such Apps or Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel.  These Terms of Use are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services.

With respect to any Apps or Software that is made available for your use in connection with an Apple-branded product (such Apps or Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Use, the following terms and conditions apply:

  • Illumix and you acknowledge that these Terms of Use are concluded between Illumix and you only, and not with Apple Inc. (“Apple”), and that as between Illumix and Apple, Illumix, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
  • You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
  • Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
  • Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software. 
  • Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Illumix’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
  • Illumix and you acknowledge that Illumix, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  
  • In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Illumix and Apple, Illumix, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
  • 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.
  • If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Illumix as follows:

support@illumix.com

 

Illumix and you acknowledge and agree that Apple, and Apple’s subsidiaries are third party beneficiaries of these Terms of Use with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.


Third Party Websites 

The Service, including the Apps, may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Illumix has no control over such sites and resources and Illumix is not responsible for and does not endorse such sites and resources.  You further acknowledge and agree that Illumix will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource.   Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Illumix is not liable for any loss or claim that you may have against any such third party.

 

Social Networking Services

You may enable or log in to the Service via various online third party services, such as social media and social networking services like Facebook or Twitter (“Social Networking Services”). By logging in or directly integrating these Social Networking Services into the Service, we make your online experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for or log into Social Networking Services on the websites of their respective providers. As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to such Social Networking Services, and we will use, store and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating these Social Networking Services and Illumix’s use, storage and disclosure of information related to you and your use of such services within Illumix (including your friend lists and the like), please see our Privacy Policy at https://illumix.com/privacy-policy/. However, please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third parties, and Illumix shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service. 

 

In addition, Illumix is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Illumix is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Illumix enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.

 

Indemnity and Release

You agree to release, indemnify and hold Illumix and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Use or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

 

Disclaimer of Warranties

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ILLUMIX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

 

ILLUMIX MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

 

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT ILLUMIX WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ILLUMIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL ILLUMIX’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID ILLUMIX IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). 

 

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE. 

 

IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY.  IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.


Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

 

 

  • Agreement to Arbitrate

 

 

This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Use as the “Arbitration Agreement.”  You agree that any and all disputes or claims that have arisen or may arise between you and Illumix, whether arising out of or relating to these Terms of Use (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify.  Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Use, you and Illumix are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

 

 

  • Prohibition of Class and Representative Actions and Non-Individualized Relief

 

 

YOU AND ILLUMIX AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.  UNLESS BOTH YOU AND ILLUMIX AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.  ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.  

 

 

  • Pre-Arbitration Dispute Resolution

 

 

Illumix is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at support@illumix.com.  If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”).  The Notice to Illumix should be sent to [Address] (“Notice Address”).  The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought.  If Illumix and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Illumix may commence an arbitration proceeding.  During the arbitration, the amount of any settlement offer made by Illumix or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Illumix is entitled.

 

 

  • Arbitration Procedures

 

 

Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement.  For information on the AAA, please visit its website, http://www.adr.org.  Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration.  If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration.  The arbitrator must also follow the provisions of these Terms of Use as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Use and applicable law.  Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

 

Unless Illumix and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances.  If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Illumix agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules.  If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

 

 

  • Costs of Arbitration

 

 

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement.  If the value of the relief sought is $75,000 or less, at your request, Illumix will pay all Arbitration Fees.  If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Illumix will pay your portion of such fees.  In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Illumix will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

 

 

  • Confidentiality

 

 

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

 

 

  • Severability

 

 

If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified.  If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Use will continue to apply.

 

 

  • Future Changes to Arbitration Agreement

 

 

Notwithstanding any provision in these Terms of Use to the contrary, Illumix agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Illumix written notice within thirty (30) calendar days of the change to the Notice Address provided above.  By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Use (or accepted any subsequent changes to these Terms of Use).

 

Suspension and Termination

Although Illumix is not obligated to monitor access to or use of the Services, Apps, or Service Content or to review or edit any Service Content, we have the right to do so for the purpose of operating the Services and Apps, to ensure compliance with these Terms of Use, and to comply with applicable law or other legal requirements. You agree that Illumix, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Illumix believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Use. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Illumix may also, in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Use may be effected without prior notice, and acknowledge and agree that Illumix may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Illumix will not be liable to you or any third party for any termination of your access to the Service.

 

User Disputes

You agree that you are solely responsible for your interactions with any other user in connection with the Service and Illumix will have no liability or responsibility with respect thereto.  Illumix reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

 

General

These Terms of Use constitute the entire agreement between you and Illumix and govern your use of the Service, superseding any prior agreements between you and Illumix with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Use will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Illumix agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Mateo County, California. The failure of Illumix to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Use without the prior written consent of Illumix, but Illumix may assign or transfer these Terms of Use, in whole or in part, without restriction. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Use or other matters by displaying notices or links to notices generally on the Service.

 

Your Privacy 

At Illumix, we respect the privacy of our users. For details please see our Privacy Policy at https://illumix.com/privacy-policy/.  By using the Service, you consent to our collection and use of personal data as outlined therein.

 

 

Questions?  Concerns?  Suggestions?
Please contact us at support@illumix.com to report any violations of these Terms of Use or to pose any questions regarding these Terms of Use or the Service.