Last Updated: 15 November 2016.
These Terms of Service (the “TOS” or “Agreement”) form a binding, legal agreement between Lookout, Inc. (“Lookout” or “we”) and you. By accepting this Agreement or using or accessing any Lookout Service, you acknowledge that you have read, understood and agree to be bound by all the terms and conditions of this Agreement. If you do not agree with this TOS, you are not permitted to access or use any Lookout Service(s) and must immediately stop doing so.
THIS AGREEMENT INCLUDES A BINDING ARBITRATION PROVISION AND WAIVES YOUR RIGHT TO PARTICIPATE IN CLASS ACTION CLAIMS. PLEASE READ THOSE PROVISIONS CAREFULLY AS THEY AFFECT YOUR LEGAL RIGHTS.
These Terms of Service are effective as of 15 November 2016.
You may need to create a Lookout account (“Account”) to place orders for or use certain Lookout Services (or some of their features). You understand that we may send notices, emails, statements, announcements and other account-related information to you using the information on your Account, and you hereby consent to us doing so. You represent and warrant that your Account information is accurate and complete, and you agree to keep your Account information (including any payment information) up-to-date, accurate and complete. You are solely responsible for the security of your Account, including for keeping any access credentials (such as user IDs, passwords and other access credentials) secure. You must not share your access credentials with any other person or entity and, in case of any security breach, you must promptly notify Lookout and change your access credentials immediately. You are solely responsible for all activities that occur on or through your Account, including any purchases. In no event will any Lookout Entity (as defined below) be responsible for any activity, damages, liability or losses arising out of or resulting from the unauthorised use of your Account or from your failure to keep your Account information and access credentials secure, accurate and complete.
3.1. Your Use Rights. Subject to the terms and conditions of this Agreement, Lookout grants you a personal, non-transferable, non-exclusive, non-sublicensable, limited, revocable licence to use the Lookout Service(s) that Lookout makes accessible to you (either itself or through a Distributor), provided you use the Lookout Service solely for your personal, non-commercial use and strictly in accordance with this Agreement and any applicable Guidelines, Documentation and Usage Limits (as defined below). You may use Lookout’s mobile apps only on those mobile devices that you legally own and control, and you understand and agree that Lookout may impose Usage Limits on your use as described below.
3.2. Premium Subscription. Lookout may make certain Lookout Services (such as our mobile apps or premium features) available to you for a fee (each such Lookout Service, a “Premium Subscription”). These Premium Subscription(s) are provided to you for a monthly, annual or other subscription term specified at the time you place your order (the “Subscription Term”). With respect to Premium Subscriptions, the rights granted to you above: (i) are subject to our receipt of payment of the applicable fees (either directly from you or from the Distributor through whom you purchased the product) and (ii) end when your Subscription Term is cancelled or terminated.
3.3. Documentation and Support. We may provide you with access to online FAQs, information, tips and other materials to help you use Lookout Services (the “Documentation”, currently available here). Any additional Lookout support services (such as email or phone support) are provided at our discretion, and you understand and agree that Lookout may discontinue and/or change its support services (including by modifying support hours and communication channels) at any time without liability to you. All Documentation and support services are provided “AS IS” without warranty of any kind. Lookout does not guarantee that errors will be resolved, that our Documentation or responses will be accurate or that responses will be timely. If you have obtained any Lookout Services from one of Lookout’s Distributors, that Distributor has no responsibility to provide you with any warranty, maintenance or support services with respect to the Lookout Services or for otherwise addressing any issue or claim with Lookout Services.
3.4. Usage Limits. You understand and agree that, from time to time and without liability to you, Lookout may establish and/or modify its general practices and usage limits regarding the Lookout Services (such practices and usage limits, the “Usage Limits”). Usage Limits may include the features included in a Premium Subscription package, limits on the number of devices that can be associated with an Account, the number of devices where our mobile app can be installed, and storage limits. The latest Usage Limits are generally available in our Documentation or in the Lookout Service itself. These Usage Limits may vary depending on how you receive Lookout Services, so please contact Lookout’s support with any questions.
3.5. Updates and Product Changes. Unless otherwise specified by Lookout in writing, this Agreement will also govern any bug fixes, patches, maintenance releases, upgrades and updates to Lookout Services that Lookout develops and makes available to you (“Updates”), and such Updates will be considered “Lookout Services” under this Agreement. However, you understand and agree that Lookout has no obligation to provide you with Updates and that any Updates may be made available for a fee or under different or additional terms and conditions, as determined by Lookout. Lookout Services consisting of installable software (such as our mobile app) may update automatically on your device once a new version or feature is available, and you consent to such automatic Updates. We are constantly changing and improving our Lookout Services, so we reserve the right without liability to you to add or remove functionalities or features, to modify Lookout Services and to suspend or stop a Lookout Service altogether.
3.6. General Restrictions. You must not (and agree not to permit, induce, assist or encourage anyone else to): (i) rent, lease, sell, offer to sell, distribute, transfer or sublicence any Lookout Service; (ii) permit anyone else to use or access your Account or any Lookout Service licenced to you (including by sharing your access credentials or licence keys); (iii) use any Lookout Service (or any component thereof, including any results or output derived from a Lookout Service) to power or support any other site, software, product or service, or otherwise for any other person or entity’s benefit; (iv) integrate, include or provide any Lookout Service (or any component thereof, including any results or output derived from a Lookout Service) in or as part of another site, software, product or service; (v) execute Lookout's mobile apps in any environment (including any emulated environment) other than on personal mobile device(s) that you legally own and control; (vi) modify, alter, tamper with or create any derivative work of any Lookout Service (or any feature or component thereof), or use or access any Lookout Service to attempt to create a substitute or similar product; (vii) attempt to decipher, decompile, disassemble, reverse engineer, or otherwise obtain the source code, underlying ideas, algorithms, file formats, or non-public APIs of any component of a Lookout Service (including executable and configurable content or any data from Lookout’s security cloud service), except where permitted by law (and then only with advance notice to Lookout); (viii) without our prior written permission, perform tests on a Lookout Service, publicly disseminate test-related information about a Lookout Service, or otherwise use or access any Lookout Service as a research tool or for competitive intelligence purposes (including to verify a set of known results); (ix) make more copies of any Lookout installable software than are reasonably required to support your authorised use; (x) access or use a Lookout Service in a way that avoids incurring applicable fees or hiding usage; (xi) re-download or re-access any Lookout Services after we have terminated your licence, subscription or Account; or (xii) obscure any proprietary or other notices contained in any component of the Lookout Service (including any results or output). You understand and agree that any violations of these restrictions will constitute a breach of this Agreement and a violation of Lookout’s intellectual property rights.
4.3. Responsibility for User Data and User Content. You are solely responsible for User Content, User Data and your use of Lookout Services. We do not endorse User Content or User Data, have no obligation to monitor any User Content or User Data, and assume no responsibility whatsoever for these materials. In all cases, Lookout reserves the right to remove or disable access to any User Content or User Data without liability to you for any or no reason, including to account for changes to Lookout Services or Usage Limits or to prevent breaches of this Agreement, harm to other users, or liability to third parties. Lookout may take these actions without prior notification to you or any third party. Removal or disabling of access to these materials shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content or User Data. You are solely responsible for maintaining additional backups of User Content and any User Data, and Lookout is not responsible for loss or destruction of these materials.
4.4. DMCA. If you are the owner of content, please note that it is our policy to respect the legitimate rights of copyright and trademark owners and (in appropriate circumstances) terminate the Accounts of users who infringe the intellectual property of others, including repeat infringers. We will respond to clear notices of alleged infringement in accordance with our DMCA Policy.
5.1. Legal Consent. You may use a Lookout Service only if you can form a binding contract with Lookout and are not a person barred from receiving the Lookout Service under the laws of the United States or other applicable jurisdiction. You represent and warrant that: (i) you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent and (ii) are fully able and competent, and have the legal power, capacity and authority, to enter into this Agreement and to abide by and comply with it. In any event, if you are under 13, you are not permitted to use any Lookout Service.
5.2. Acceptable Use. You agree to abide by our Acceptable Use Policy (available below) and represent and warrant that the User Data, User Content and your use of any Lookout Service will not: (i) violate any local, state, federal or international law, rule or regulation; (ii) harm any person or entity; (iii) infringe any person or entity’s rights (including intellectual property, privacy, publicity and other rights); or (iv) violate this Agreement. You further represent and warrant that you have all rights, releases and permissions needed to: (x) permit you to use the Lookout Services (including, where applicable, to manage devices in a group plan) and (y) grant us the licences, rights and consents under this Agreement (including as provided in Section 4 above).
5.4. Third Party Products. Some Lookout Services may link to, be installed on or be provided with products, apps, software, add-ons, extensions, websites, online services, features, functionality and/or content that is owned or controlled by third parties (such items, the “Third Party Products”). Third Party Products may be governed by terms of service, privacy policies, and other agreements between you and the provider of such products, and you agree to review and abide by such terms and policies.
5.5. Other Service-Specific Terms. Our Lookout Services are very diverse, so sometimes we may post or provide additional terms, conditions and guidelines (collectively, the “Guidelines”) applicable to a particular Lookout Service (or particular features). If you access or use such Lookout Services, those Guidelines become part of your agreement with us and are incorporated by reference into this Agreement.
6.1. Fees. If you place an order for a Premium Subscription, you agree to pay the applicable fees up front for the entire Subscription Term. All fees and charges are non-refundable and non-creditable, and there are no refunds or credits for partially used Subscription Terms.
6.2. Billing Methods. If you order Premium Subscription from Lookout using your credit card, we will automatically charge the applicable fees plus any applicable taxes to your credit card for the entire Subscription Term. If your credit card reaches its expiry date, your continued use of the Premium Subscription constitutes your authorisation for us to continue billing that credit card and you remain responsible for any uncollected amounts. If you order any Lookout Services from a Distributor (such as from your wireless operator using carrier billing, by purchasing our mobile app using app-store billing or by purchasing a licence key from a Distributor), you may make applicable payments to the Distributor subject to the terms and conditions between you and that Distributor, but your use of Lookout Services remains subject to this Agreement.
6.3. Trials. From time to time, we may offer trials of Premium Subscriptions for a specified period without payment or at a reduced rate (a “Trial”). Lookout reserves the right, in its discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law. We may automatically start to charge you for the applicable Premium Subscription on the first day following the end of the Trial, unless you cancel as described in the “Automatic Renewals” section below.
6.4. Failure to Pay. If you fail to timely pay any fees, if we are unable to process your payment, or if we do not receive our corresponding payment from the Distributor from whom you purchased the Premium Subscription, Lookout at its option may suspend or terminate your right to use the Premium Subscription, without liability to you. Regardless of such termination or suspension, you will be responsible for paying all past due amounts.
6.5. Automatic Renewals. Unless otherwise specified by us at the time you place your order, your Subscription Term for a Premium Subscription is auto-recurring and will automatically renew for additional terms of the same length. You authorise Lookout to immediately begin charging the payment method provided and to continue to do so for any renewed Subscription Term until you cancel. You may cancel an upcoming Subscription Term renewal on your Lookout Account page (or through the account page on the applicable app store), but you must do so before your renewal date to avoid incurring additional fees. If you fail to cancel before the renewal date, you will be responsible for paying fees for the renewed Subscription Term. Please note that if you elect to cancel during a Subscription Term, we will not issue a refund or credit for the remaining portion of your then-current Subscription Term.
7.1. Termination and Suspension. We may terminate or suspend your Account and/or your access to the Lookout Services, without prior notice and without liability, for any or no reason, including if we determine in good faith that: (a) you have violated this Agreement, (b) you have infringed third party rights or any applicable laws, rules or regulations, (c) you are no longer actively using the Lookout Service, or (d) you have failed to pay fees owed to Lookout. These remedies are in addition to any other remedies Lookout may have at law, in equity or otherwise. We will make a reasonable attempt to notify you of any termination or suspension of your access to the Lookout Services using the information on your Account or through the Lookout Service itself. However, we reserve the right to terminate access to Lookout Services at any time, with or without notice.
7.2. Effect of Termination. You acknowledge and agree that upon suspension, termination or expiry your ability to access User Content and/or User Data will cease and that Lookout will have no obligation to store any such items or provide them to you. If we terminate your access to Lookout Service(s), your licence rights shall terminate and you must: (i) immediately cease any use of the applicable Lookout Service(s) and (ii) delete (or, at our request, return) any and all copies you have of the applicable Lookout Service (if any).
7.3. Survival. All terms and conditions of this Agreement will survive any suspension, termination or expiry, except for the rights granted to you under Section 3.1 (Your Use Rights).
8.1. Lookout Technology. Notwithstanding any use of the words “purchase”, “sale” or similar terms, the Lookout Services are being licenced to you, not sold. Notwithstanding anything to the contrary herein, Lookout (or the Lookout Entities, as applicable) retain all rights, title and interest (including all intellectual property rights) in and to the Lookout Services, any content, data, results, information, analysis or output generated by or that you obtain from a Lookout Service, and any Updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback. Lookout reserves any licences not expressly granted herein.
8.2. Open Source. Sometimes Lookout may provide you with software, such as mobile apps, that may include components subject to a so-called “open source” software licence (such components, “Open-Source Components”). To the extent required by the licence terms covering the Open-Source Components, those licence terms will apply in lieu of the licence terms and restrictions of Section 3; however, the remaining sections of this Agreement, including Section 9 (Disclaimers and Limitations of Liability), will continue to apply to all components of the Lookout Services, including Open-Source Components.
Please read the following provisions carefully, as they limit the liability of Lookout Entities. “Lookout Entities” means: (i) Lookout, its parents, subsidiaries, affiliates and related companies (collectively, the “Lookout Companies”); (ii) the Lookout Companies’ officers, directors, employees, agents, contractors and representatives; and (iii) the Lookout Companies’ Distributors, licensors, suppliers, service providers and data providers (including without limitation our providers of hosted services and Identity Protection Services), and their parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, contractors, representatives and data providers.
9.1. Disclaimers. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH LOOKOUT SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND EACH LOOKOUT ENTITY DISCLAIMS ANY AND ALL WARRANTIES (WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE), INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE LOOKOUT ENTITIES (AND EACH OF THEM) DO NOT REPRESENT, WARRANT OR GUARANTEE THAT ANY LOOKOUT SERVICE (INCLUDING ANY CONTENT, DATA, RESULTS, INFORMATION OR OUTPUT THEREIN OR OBTAINED THEREFROM): (A) WILL BE ACCURATE, COMPLETE, TIMELY, CURRENT, SECURE (INCLUDING FROM UNAUTHORISED ACCESS), RELIABLE, UNINTERRUPTED, ERROR-FREE OR MAINTAINED WITHOUT LOSS OR (B) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOU AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, LOOKOUT AND THE OTHER LOOKOUT ENTITIES WILL NOT BE LIABLE IN WHOLE OR IN PART FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED BY YOUR USE OF A LOOKOUT SERVICE OR THE CONTENT, DATA, RESULTS, INFORMATION OR OUTPUT THEREIN OR OBTAINED THEREFROM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU.
9.2. Limitations of Liability. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW: (A) IN NO EVENT WILL LOOKOUT OR ANY OTHER LOOKOUT ENTITY BE LIABLE FOR ANY LOSS OF USE, PROFITS OR BUSINESS; DAMAGE INVOLVING ANY DEVICE, EQUIPMENT, SYSTEM, CONTENT OR DATA (INCLUDING FOR LOSS, THEFT OR UNAUTHORISED ACCESS TO SUCH ITEMS); COSTS OF SUBSTITUTE PRODUCTS OR SERVICES; REPUTATIONAL HARM; OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF THE LOOKOUT ENTITY KNOWS OF THE POSSIBILITY OF SUCH DAMAGES AND (B) WITHOUT LIMITING THE FOREGOING, LOOKOUT’S AND THE OTHER LOOKOUT ENTITIES’ TOTAL, COLLECTIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE LOOKOUT SERVICES, IF ANY, SHALL NOT EXCEED IN AGGREGATE THE GREATER OF FIFTY US DOLLARS ($50 US) OR THE FEES ACTUALLY PAID BY YOU FOR THE APPLICABLE LOOKOUT SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
9.3. Third Party Products. THE LOOKOUT ENTITIES: (A) DO NOT ENDORSE, WARRANT OR SUPPORT THIRD PARTY PRODUCTS AND (B) DISCLAIM ANY RESPONSIBILITY AND LIABILITY (INCLUDING FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL AND OTHER DAMAGES OF ANY TYPE) ARISING FROM OR RELATING TO THIRD PARTY PRODUCTS OR THEIR BEHAVIOUR, FEATURES OR CONTENT.
9.4. Other Terms. THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS SECTION 9 APPLY IN NEW JERSEY BUT MAY NOT APPLY IN OTHER JURISDICTIONS TO THE EXTENT PROHIBITED BY THOSE JURISDICTION’S LAWS. IF THOSE JURISDICTION’S LAWS ARE FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 9 SHALL APPLY ONLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH APPLICABLE LAW. WARRANTIES REQUIRED UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 9 WILL SURVIVE AND APPLY TO ANY CLAIMS, DAMAGES AND LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ANY LOOKOUT SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), AND EVEN IF ANY LIMITED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You agree to indemnify and hold Lookout and the Lookout Entities harmless from and against any third-party claims, proceedings and demands and related losses, costs, damages, liabilities and expenses (including defence costs and reasonable legal fees) arising out of or related to: (a) your use or misuse of Lookout Service(s); (b) your breach of any provision of this Agreement; or (c) your violation or alleged violation of any law or third-party right (including without limitation any intellectual property, privacy, publicity or other right). You further agree to defend Lookout and the Lookout Entities against any such claims at our request, but we have right to assume the exclusive defence and control of such claims. You must notify us of any such claims immediately and cooperate with Lookout in any defence. When you are defending a claim, Lookout may participate in the defence through counsel of our own choosing and you must not make any admissions, take positions adverse to Lookout or settle any claim without our prior written consent.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. You and Lookout agree that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section is intended to be interpreted broadly and governs any and all disputes including but not limited to claims arising out of or relating to this Agreement, any Lookout Services, and/or any aspect of the relationship between us, whether such claims are based in contract, tort, statute, fraud, misrepresentation or any other legal theory, arose before this Agreement or any prior agreement, or arose after the termination of this Agreement. The only exceptions to this mandatory arbitration provision are described in the “Exceptions” subsection below. By agreeing to this Agreement or using any Lookout Service, you agree to resolve any and all disputes with Lookout as follows:
11.1. Initial Dispute Resolution. Most disputes can be resolved without resorting to litigation. Before initiating an arbitration, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Lookout support department. You can reach Lookout’s support department at email@example.com.
11.3. Class Action Waiver. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND LOOKOUT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The parties further agree that the JAMS Rules referenced above shall exclude any rules or procedures governing or permitting class actions. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth in this Arbitration and Class Action Waiver section shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
11.4. Costs. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Lookout will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Lookout will pay the fees invoiced by JAMS, including the filing fees and arbitrator and hearing expenses they invoice. You are responsible for your own legal fees unless the arbitration rules and/or applicable law provide otherwise.
11.5. Location of Arbitration. If you are a resident of the United States, any arbitration hearings may take place in the county where you reside at the time of filing or in another location mutually agreed by the parties. For residents outside the United States, any arbitration shall be initiated in the State of California, United States of America, and you and Lookout agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. If your claim is for $50,000 or less, either party may choose to attend a hearing telephonically, videographically or in person. Hearings may also take place telephonically or videographically as provided for in the applicable JAMS Rules.
11.7. 30-Day Right to Opt Out: You have the right to opt out and not be bound by this Arbitration and Class Action Waiver section by sending (from the email address registered to your Account) written notice of your decision to opt out to firstname.lastname@example.org with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT" and your full legal name. The notice must be sent within thirty (30) days of your first use of the Lookout Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of this mandatory arbitration provision. If you opt out of these arbitration provisions, Lookout also will not be bound by them.
11.8. Changes to This Section: If you have not opted-out of this Arbitration and Class Action Waiver section and Lookout makes any future change to this section (other than a change to our notice address), you may reject any such change within 30 days of the change by sending us written notice (from the email address registered to your Account) to email@example.com with the subject line “OPT OUT OF CHANGES TO ARBITRATION AND CLASS ACTION WAIVER” and your full legal name. If you opt out of changes to this section, Lookout also will not be bound by those changes, and the parties agree to arbitrate any dispute in accordance with the Arbitration and Class Action Waiver section in effect prior to such rejected change. If a court or arbitrator decides that this paragraph is not enforceable or valid, then this paragraph shall be severed from the rest of this Arbitration and Class Action Waiver section, and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Lookout Services.
11.9. Additional Terms. The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. This Arbitration and Class Action Waiver section shall survive any termination of your Account, the Lookout Services or this Agreement.
12.1. Governing Law and Jurisdiction. This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted. Except for the claims specified in Section 11.6 (Exceptions) above, any claim or dispute that is not subject to arbitration must be resolved by the state or federal courts for San Francisco County, California, and the parties hereby submit to the jurisdiction of such courts and waive any jurisdictional and venue defences otherwise available.
12.3. Amendments. Lookout reserves the right, at its sole discretion, to modify this Agreement, at any time and without prior notice. If we modify this Agreement, we will post the modification on the Lookout website and/or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Lookout Services after we have posted a modification on the Lookout Services or have otherwise provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Lookout Services. Notwithstanding the foregoing, changes to Section 11 (Arbitration and Class Action Waiver) shall be governed by Section 11.8 (Changes to this Section).
12.4. Waivers. The failure of Lookout to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by an arbitrator court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
12.5. Assignments. This Agreement (and any rights and licences granted herein) may not be assigned by you, and any assignment by you is void. Lookout may assign or delegate this Agreement without restriction, including to an affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets.
12.8. US Government Use. The Lookout Services are commercial computer software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Lookout Services, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Lookout Services were developed fully at private expense. All other use is prohibited.
12.9. Export Restrictions. The Lookout Services are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to or use of the Lookout Services. You shall not (and shall not allow any third party to) remove or export from the United States or allow the export or re-export of any part of the Lookout Services or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the US Commerce Department’s Table of Denial Orders or US Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export licence or other governmental approval at the time of export or re-export without first obtaining such licence or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of the United States or any foreign government, agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) that none of User Content or User Data is controlled under the US International Traffic in Arms Regulations. The Lookout Services may not be used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.
12.10. Third Party Rights. This Agreement is between you and Lookout only, not with any of our Distributors, and our Distributors are not responsible for the Lookout Services or the content thereof. However, you acknowledge and agree that Lookout Entities are intended beneficiaries of the Agreement and have the right to enforce the Agreement directly against you. Except as specified in this Section, there are no third-party beneficiaries of this Agreement.
12.11. Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, then the provision shall be performed and enforced to the maximum extent permitted by law, and the remaining provisions of this Agreement shall continue to remain in full force and effect.
12.12. Miscellaneous. As used herein “including” means “including without limitation” and examples are provided for clarification only and are not intended to be restrictive. Except where this Agreement expressly states that a remedy is exclusive, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
Acceptable Use Policy
Last Update: 15 November 2016
This document is our Acceptable Use Policy. It is part of our Terms of Service (currently available at https://www.lookout.com/legal/terms) and applies to all Lookout Services (as that term is defined in our Terms of Service). By accepting our Terms of Service or using or accessing any Lookout Service, you agree to comply with this policy. In connection with your use of any Lookout Service, you agree not to:
Without limiting any other remedies available to it, Lookout may in its sole discretion suspend or terminate access to the Lookout Service for violations of this Acceptable Use Policy (as determined by Lookout), to prevent harm to other parties, or to preserve our security, availability or integrity.
Last Update: 15 November 2016
Lookout respects intellectual property rights and expects its users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Lookout’s Copyright Agent with a notice containing the following information: (i) an electronic or physical signature of the person authorised to act on behalf of the owner of the copyright or other intellectual property interest that has allegedly been infringed; (ii) specific identification of each copyrighted work or other intellectual property that you claim has been infringed; (iii) identification of where the allegedly infringement material resides on the Lookout Service, (please be as detailed as possible and include a URL where applicable); (iv) contact information for the complaining party, including name, address, telephone number and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorised by the copyright owner, its agent, or the law; and (vi) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright or intellectual property owner or authorised to act on the copyright or intellectual property owner's behalf.
You may send your claims of copyright or other intellectual property infringement to Lookout’s Copyright Agent: (a) by post to Lookout – Copyright Agent, 1 Front St #2700, San Francisco, CA 94111 or (b) by email to firstname.lastname@example.org, ATTN: COPYRIGHT AGENT.