Lolly List LLC (“Lolly List,” “we,” “us,” or “our”) welcomes you. We provide you access to our website, available at www.LollyList.com (the “Site”) and our accompanying mobile application (the “App” and, collectively with the Site, the “Platform”) subject to the following Terms of Use, which may be updated by us from time to time without notice to you. By accessing or using the Platform, you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Use and our Privacy Policy, which is hereby incorporated by reference (collectively, this “Agreement”). If you do not agree to any of these terms, then please do not use the Platform.
Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.
We provide Visitors and Registered Users with access to the Site as described below.
Visitors. A Visitor, as the term implies, is anyone who does not register with us but wants to explore the
Site. No login is required for Visitors. Visitors can: (i) view all publicly-available portions of the Platform;
and (ii) e-mail us.
Registered Users. Registered Users can do all the things that Visitors can do, and: (i) access additional
features and functionality available only to Registered Users; (ii) create, access, manage, and update their own
personal accounts on the Platform.
Lolly List is under no obligation to accept any individual as a Registered User and may accept or reject any
registration in its sole and complete discretion. In addition, Lolly List may deactivate or suspend any account
at any time, including, without limitation, if it determines that a Registered User has violated this Agreement.
We reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or any portion of
the Platform, without notice and without reason.
Our community, like any community, functions best when our users follow a few simple rules. By accessing the Platform, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
If you wish to become a Registered User and do not log in to the Platform using a third-party login provider (e.g., Facebook), you will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Registered User. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered or payments made through the Platform using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. Lolly List will not be liable for any loss or damage caused by any unauthorized use of your account.
The Platform contains material, such as videos, photographs, software, text, graphics, images, sound
recordings, and other material provided by or on behalf of Lolly List (collectively referred to as the “Content”).
The Content may be owned by us or by third parties. The Content is protected under both United States and foreign
laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or
to the Content, and you will not use the Content except as permitted under this Agreement. No other use is
permitted without prior written consent from us. You must retain all copyright and other proprietary notices
contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign,
license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of,
distribute, or otherwise use the Content in anyway for any public or commercial purpose. The use or posting of
the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
The trademarks, service marks, and logos of Lolly List (the “Lolly List Trademarks”) used and displayed on
the Platform are registered and unregistered trademarks or service marks of Lolly List. Other company, product,
and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party
Trademarks,” and, collectively with Lolly List Trademarks, the “Trademarks”). Nothing on the Platform
should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the
Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a
link to or from any Platform is prohibited unless establishment of such a link is approved in advance by us in
writing. All goodwill generated from the use of Lolly List Trademarks inures to our benefit.
Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal
laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use
of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and
every instance.
The Platform and our social media pages may allow you to post and upload content (collectively, “User
Content”).
You expressly acknowledge and agree that once you submit your User Content for inclusion into the Platform or our
social media pages, it will be accessible by others, and that there is no confidentiality or privacy with respect
to such User Content, including, without limitation, any personally identifying information that you may make
available. YOU, AND NOT LOLLY LIST, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER CONTENT THAT YOU UPLOAD, POST,
E-MAIL, OR OTHERWISE TRANSMIT VIA THE PLATFORM OR OUR SOCIAL MEDIA PAGES.
You retain all copyrights and other intellectual property rights in and to your own User Content. You do,
however,
hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to
modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute,
publicly display, publicly perform, and otherwise use or exploit (including for profit) your User Content and all
intellectual property and moral rights therein throughout the universe, in each case, by or in any means,
methods,
media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not
the
obligation, to use your User Content, your social media sign-in name, name, likeness, and photograph in
connection
with any use of the related User Content permitted by the previous sentence and/or to advertise and promote the
Platform, Lolly List, and our products and services. Without limiting the foregoing, you acknowledge and agree
that
uses of your User Content, sign-in name, name, likeness, and photograph permitted by the foregoing rights and
licenses may include the display of such User Content, sign-in name, name, likeness, and photograph adjacent to
advertising and other material or content, including for profit.
If you submit User Content to us, each such submission constitutes a representation and warranty to Lolly List
that
such User Content is your original creation (or that you otherwise have the right to provide the User Content),
that you have the rights necessary to grant the license to the User Content under the prior paragraph (including,
without limitation, any sensitive or personally identifiable information contained therein), and that it and its
use by Lolly List and its content partners as permitted by this Agreement does not and will not infringe or
misappropriate the intellectual property, privacy, or moral rights of any person or contain any libelous,
defamatory, or obscene material or content that violates our Community Guidelines.
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, ratings, feedback, questions, comments, suggestions, and the like, we shall be free to use any ratings data, ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
YOU ACKNOWLEDGE THAT LOLLY LIST DOES NOT REPRESENT OR WARRANT THAT THE CONTENT AND ANY OTHER DATA OR
INFORMATION
PROVIDED THROUGH THE PLATFORM WILL BE ACCURATE OR COMPLETE.
YOU ALSO ACKNOWLEDGE THAT THE PLATFORM MAY CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM
FAILURES. CONSEQUENTLY, THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY
WARRANTIES
OF ANY KIND, INCLUDING THAT THE PLATFORM OR CONTENT WILL OPERATE ERROR-FREE OR THAT THE PLATFORM, ITS SERVERS, OR
THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT
OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING,
COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE
LIABLE
FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS
INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM OR THE CONTENT, EVEN IF WE HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF
YOUR USE OF THE PLATFORM OR THE CONTENT SHALL BE LIMITED TO FIFTY UNITED STATES DOLLARS (US$50).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON
WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
The Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
Lolly List’s servers are based 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 Platform 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.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability. Sections 4-16 shall survive the termination of this Agreement.
Lolly List respects the intellectual property rights of others and attempts to comply with all relevant laws.
We
will review all claims of copyright infringement received and remove any Content deemed to have been posted or
distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any
Notification of Claimed Infringement which may be given under that Act is as follows:
This Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
In the event of a dispute arising under or relating to this Agreement, the Content, or the Platform (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 16 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York, Borough of Manhattan for purposes of any such action by us.
The following terms apply when you download the App from Apple’s App Store. These terms are in addition to all other terms contained in the Agreement.
Lolly List is a provider of “interactive computer services” as defined under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation, libel, product disparagement, and other claims arising out of any User Content is limited as described therein. We are not responsible for any User Content. We neither warrant the accuracy of the User Content nor exercise any editorial control over User Content, nor do we assume any legal obligation for editorial control of User Content or liability in connection with User Content, including any responsibility or liability for investigating or verifying the accuracy of any User Content.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.