Terms of Use for LifeSizer.com

Last updated: 12/31/11

Please Read Carefully Before Using this Website

Welcome to LifeSizer.com (the “LifeSizer Site”). The LifeSizer Site is owned by LifeSizer, Inc. (“LIFESIZER,” “we,” “us,” or “our”). Your use of the LifeSizer Site, and any of its services, is governed by these Terms of Use. BY USING THE LIFESIZER SITE OR ANY OF ITS SERVICES, YOU AGREE TO THESE TERMS OF USE, INCLUDING THE LIMITATIONS OF LIABILITY PROVISIONS IN THESE TERMS OF USE. If you do not accept these Terms of Use, you are not authorized use the Lifesizer Site or any of its services.

These Terms of Use apply to your use of the services on a beta (or free trial) basis, except that the provisions below regarding payment will not apply to such use.

1. Other Policies and Terms

By using the LifeSizer Site or any of its services, you also agree to our Privacy Policy and our Fees and Payment Policy, each of which are posted to the LifeSizer Site and are incorporated in (and made a part of) these Terms of Use by reference. In addition, we may offer certain services on or through the LifeSizer Site to which additional or different terms, conditions, rules or requirements (“Additional Terms”) will apply and you will be required to agree with those Additional Terms. These Terms of Use and applicable Additional Terms shall be read and interpreted, to the extent possible, so that there is no conflict between them. To the extent there is such conflict, the Additional Terms governing the applicable activity shall prevail as to that activity.

2. Eligibility

The LifeSizer Site and its services are intended for clients who are 18 years of age and older and are not intended for children under the age of 13. If you are under the age of 18, you will need your parents’ permission to use the services that require payment.

3. Our Proprietary Rights

The LifeSizer Site and its services contain proprietary and confidential information that is available only to registered users and is protected by applicable intellectual property and other laws. Excluding Client Documents (as defined below), the content on the LifeSizer Site, including without limitation, the image calibration data (e.g.., measruements), text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (collectively, “Materials”) and the trademarks, service marks and logos on the LifeSizer Site or its services (“Marks”), are owned by or licensed to LIFESIZER, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions.

4. Use of the Services

Subject to your full compliance with these Terms of Use, you may access and use the LifeSizer Site and its services and content, including the Materials, in the manner permitted by and subject to the terms of these Terms of Use. All rights not expressly granted are reserved by LIFESIZER and its suppliers and licensors. Except as expressly authorized by LIFESIZER, you agree not to download, modify, duplicate, rent, lease, loan, sell, distribute or create derivative works based on the LifeSizer Site or any of its services or contents (including the Materials), in whole or in part. You agree not to access the LifeSizer Site or its services by any means other than through the interface that is provided by LIFESIZER for use in accessing the LifeSizer Site and services.

5. Modifications

LIFESIZER reserves the right to modify or amend these Terms of Use at any time by notifying you of such changes via electronic communication, which may include posting the modified Terms of Use on the LifeSizer Site, or posting a notice of the modified terms to clients and users, or by e-mail to you, at our sole option. All changes will be effective upon our posting or sending the communication and will only affect your use of the services after the effective date of the change, unless we clearly express otherwise. You are encouraged to regularly visit these Terms of Use to review for any changes. Your use of the LifeSizer Site or any of its services after LifeSizer provides notice of such changes as provided in this paragraph shall be deemed your approval of such changes. However, if you have already paid for services for a particular project (“Project”), then the Terms of Use that were in force at the time of your payment for that Project will remain in effect for that Project. Any new Projects submitted and paid for after the effective date of changes to these Terms of Use is subject to the new terms.

The LifeSizer Site and its services are continually under development and changes to the LifeSizer Site and the services, including adding or deleting services and/or features, may be made at any time. You agree that LIFESIZER shall not be liable to you or to any third party for any such modification of the LifeSizer Site, its services or these Terms of Use and your sole remedy for such modification is for you to terminate your right to access and use the LifeSizer Site and services as provided below.

6. Registration; Account Information

You must register to use the services as a client of the LifeSizer Site. By registering, you represent, warrant and covenant that you will: (a) provide true, accurate, current and complete information about yourself as prompted by our registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or if LIFESIZER has a reasonable ground to suspect that such information is untrue, inaccurate, not current or incomplete, LIFESIZER has the right to suspend or terminate your account and refuse any and all current or future use of the LifeSizer Site and its services.

You may only have one active client account on the LifeSizer Site at any given time. You may not transfer your account to any third party without LIFESIZER’s prior written consent. You will be assigned, or you must choose, a user name and password for access to and use of the LifeSizer Site and its services. You are responsible for maintaining the confidentiality of your user name and password and for all activities that occur through use of your account or under your user name and/or password. You agree to promptly notify us of any unauthorized use of your user name, password or any other breach of security that you become aware of involving or relating to the LifeSizer Site and its services by emailing us at info@lifesizer.com. In order to maintain the security of your account, we recommend that you exit from your account at the end of each session, in particular when using a public or shared computer. We explicitly disclaim liability for any and all losses and damages arising from your failure to comply with this section.

7. Client Documents; Your Proprietary Rights and Obligations

As between you and us, all pictures and other content that you upload as part of your account to the LifeSizer Site or services (collectively, “Client Documents”) will remain your intellectual property, excluding any measurement or image calibration information which is the sole property of LIFESIZER.

You agree that by submitting Client Documents to the LifeSizer Site and its services, you grant to LIFESIZER and its providers, suppliers, licensors and agents a royalty-free, worldwide, full paid-up, irrevocable, non-exclusive right and license to store, use, reproduce, display, modify and distribute, in accordance with these Terms of Use, your Client Documents as part of the operation of the LifeSizer Site and its services, including for technical maintenance, software development, promotion, affiliate programs, debugging, and backup purposes. You acknowledge and agree that we may use third party technical service providers, such as hosting providers and storage or server operators, third party payment processors, web hosting services providers and web analytics (“Service Providers”), who may have access to your Client Documents solely for purposes of providing services to LIFESIZER and who will not be permitted to otherwise use your Client Documents without your prior consent.

If you submit any Client Document to a Project, you further grant to LIFESIZER and Service Providers a royalty-free, worldwide, full paid-up, irrevocable, non-exclusive right and license to use, reproduce, modify and create derivative works of such Client Document in connection with the LifeSizer Site or services.

You represent that you have the right to provide, and allow use pursuant to these Terms of Use, all Client Documents to the LifeSizer Site and its services without violation of any third party rights, these Terms of Use or any laws or regulations. You acknowledge that LIFESIZER does not pre-screen Client Documents, but that LIFESIZER and its designees have the right (but not the obligation) to refuse or remove any Client Documents from the LifeSizer Site and its services that violates these Terms of Use, as determined by LIFESIZER in its discretion. LIFESIZER is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Documents.

You acknowledge and agree that LIFESIZER may preserve or disclose Client Documents 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; (b) enforce the LifeSizer Site and its Terms of Use; (c) respond to claims that any Client Documents violates the rights of third parties; or (d) protect the rights, property, or personal safety of LIFESIZER, its agents, Service Providers, clients, or others.

You understand that the technical processing and transmission of the LifeSizer Site and its services, including your Client Documents, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

8. Prohibited Activities and Content

You agree that you will not, nor will you permit any third party to: (a) license, sublicense, resell, transfer, or assign to a third party your right to use the LifeSizer Site and its services, nor operate as a service bureau or otherwise use the LifeSizer Site and its services on behalf of or for the benefit of a third party; (b) modify, copy or create derivative works from the LifeSizer Site and its services or any of its Material other than Client Documents; (c) attempt to access, decompile or reverse engineer the software and technology through which LIFESIZER provides the LifeSizer Site and its services, or use the LifeSizer Site and its services to create or modify a competitive product or service; (d) except with LIFESIZER’s prior express permission or if conducted for purposes of adding LifeSizer functionality to your site as a client of LifeSizer, create Internet “links” to the LifeSizer Site and its services or “frame” or “mirror” the LifeSizer Site and its services on any other server or wireless or Internet-based device; (e) attempt to gain unauthorized access to the LifeSizer Site and its services or any content or the networks or systems through which LIFESIZER provides the LifeSizer Site and its services, including access to the LifeSizer Site and its services by any means other than the interface provided by LIFESIZER for use in accessing the LifeSizer Site and its services, or use any unauthorized means to modify or reroute the LifeSizer Site or services (or attempt to do so); (f) use the LifeSizer Site and its services in any manner which could damage, disable, overburden, or impair the LifeSizer Site and its services or interfere with any other party’s use and enjoyment of the LifeSizer Site and its services, or send or store material containing software viruses, worms, Trojan horses or other harmful code; (g) use the LifeSizer Site and its services for an illegal purpose or in furtherance or encouragement of illegal activities, or (h) to post, upload, transmit, submit or store Client Documents (or to engage in behavior or otherwise use the LifeSizer Site or services in a manner) that is harassing, infringing, libelous, invasive of another’s privacy, harmful, threatening, fraudulent, deceptive, obscene, or otherwise unlawful or tortious, or that would give rise to civil liability, including without limitation to sending, transmitting or using the LifeSizer Site or services in any manner associated with any unsolicited bulk messages or unsolicited commercial messages (“spam”).

You may not remove, deface or obscure any of our or our providers’, suppliers’ or licensors’ copyright, trademark and other proprietary notices on, in or associated with the LifeSizer Site and its services.

9. Third Parties

The LifeSizer Site may link to and present content from third party sites not owned or controlled by LIFESIZER. You also acknowledge and agree that the LifeSizer Site and services will be used by other clients and users. LIFESIZER is in no way liable for the actions of any other clients or users of the LifeSizer Site or services, or for the contents of any third party web sites. The opinions expressed by other clients or users do not necessarily represent those of LIFESIZER, nor is LIFESIZER responsible in any way for the words or actions of such persons or entities.

10. Payment

You agree to pay all applicable fees, if any, for your access to and use of the LifeSizer Site and services, as specified in LIFESIZER’s then-current Fees and Payment Policy. Unless otherwise provided in the Fees and Payment Policy, payment for all services is due at the time the service is requested.

LIFESIZER may change the fees and other aspects of the Fees and Payment Policy at any time by providing 30 days’ prior notice, effective upon posting. All fees are exclusive of sales, use, excise or any other taxes, and you are responsible for all such taxes except those based on LIFESIZER’s net income or assets. Payment obligations cannot be cancelled, and no payments are refundable. You must provide LIFESIZER with valid credit card information when registering for the LifeSizer Website and its services, and you must notify LIFESIZER in advance of any change in that information. Where applicable, LIFESIZER charges and collects in advance for use of the LifeSizer Website and its services. LIFESIZER will automatically renew and bill your credit card or issue an invoice to you each month or as otherwise mutually agreed upon. Failure by LIFESIZER to receive payment in full when due will entitle us to suspend or terminate your account.

11. Refusal and Termination of Services

LIFESIZER reserves the right to refuse service to any client at any time and for any reason. Such refusal may include, but is not limited to, Projects involving materials that LIFESIZER determines to be violent, obscene, or offensive; to advocate violent or illegal activity; to contain (or have the potential to contain) any computer viruses; or to contravene any law, statute, or ordinance; or that otherwise violates these Terms of Use.

Should any client act in a manner that we determine to be threatening, violent, disruptive, or offensive toward us, a Service Provider, another client, or any third party, LIFESIZER reserves the right to terminate any and all services then in progress prior to its completion, and the client’s account.

You further acknowledge and agree that LIFESIZER may terminate your account and delete Client Documents if you have not used the LifeSizer Site or its services for a period of three months, or otherwise pursuant to the Fees and Payment Policy.

You may terminate your use of the LifeSizer Site and its services at any time. If you are paying for a subscription service, any such termination is effective only upon written notice to LIFESIZER in accordance with these Terms of Use. Otherwise, you will be billed, and you will be liable for payment, for such subscription services in accordance with the Fees and Payment Policy, even if you actually stop using the LifeSizer Site and services.

Upon any termination, we will be under no obligation to provide a monetary refund to the client. If we determine in our sole discretion that a refund is warranted, we will prorate the refund in light of the services already performed and will deduct from it any costs that have been incurred in processing the Project to the point of termination.

In addition, upon termination, except where we terminate your account for your breach, non-use or otherwise for cause, we will provide you with seven days to retrieve Client Documents from the LifeSizer Site. After such 7-day period, and in all other cases, we reserve the right to permanently delete all such Client Documents and to terminate your access to and use of the services.

12. Quality of Service; Limitation of Liability

LIFESIZER will use commercially reasonable efforts to enlist the work of highly qualified Service Providers to render professional services. Nonetheless, we cannot guarantee that documents and services will meet all of your expectations, or that document and services will be entirely error free. While reasonable efforts are made to keep the LifeSizer Site accurate and current, LIFESIZER assumes no liability for any inaccuracies in the LifeSizer Site or any of its services or for any damages that may result from the use of information posted on the LifeSizer Site or any of its services. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE LIFESIZER SITE AND ALL OF ITS SERVICES IS AT YOUR OWN RISK. As part of this assumption of risk, you acknowledge and agree that you are responsible for providing accurate and complete information when submitting your Project to us and for reviewing all materials returned to you as part of that project.

If you are not satisfied with the services, you are encouraged to immediately inform LIFESIZER by email at info@lifesizer.com. At no time, however, are we obligated to issue a monetary refund, nor are we liable for damages in connection with any defect, perceived or real, in the services rendered.

You understand that the words and opinions of other clients and users of the LifeSizer Site and services are not necessarily those of LIFESIZER, and LIFESIZER does not and cannot accept responsibility for such words or opinions.

You further agree that neither LIFESIZER nor any Service Provider in any way guarantees a particular outcome as a result of the use of its services.

In accepting these Terms of Use, you expressly agree that you understand the limitations of liability set forth in these Terms of Use and, further, agrees that you will not seek damages against LIFESIZER or its agents, suppliers, licensors or Service Providers for any perceived or real defect in the documents provided or services rendered, or for any consequences of such a defect.

To the MAXIMUM extent permitted under applicable law, under no circumstances, including, but not limited to, negligence, shall LIFESIZER OR ANY OF ITS LICENSORS, SUPPLIERS, AGENTS OR SERVICE PROVIDERS be liable for any INCIDENTAL, INDIRECT, punitive, special or consequential damages that result from the use of, OR THE INABILITY TO USE, THE LIFESIZER SITE OR SERVICES, even if WE HAVE been advised of the possibility of such damages.

In any event, if the above limitations and exclusions are not enforceable or do not apply, LIFESIZER’s aggregate liability otherwise in connection with the LifeSizer Site and its services shall not exceed the amounts, if any, actually paid by you to LIFESIZER for the LifeSizer Site and its services in the 12-month period prior to the event giving rise to such liability.

Exclusions and Limitations

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF USE WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

13. Disclaimer of Warranties

The LifeSizer Site AND SERVICES ARE provided ON AN “as is” AND “AS AVAILABLE” BASIS and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, LIFESIZER disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. WE DO not warrant that the LifeSizer Site OR SERVICES, OR ANY PORTION OF EITHER, will be error-free, that defects will be corrected or that thE SITE, THE SERVICES or the server, NETWORK OR OTHER SOFTWARE AND EQUIPMENT that makes IT available are free of viruses or other harmful components. WE DO NOT make any representations or warranties regarding the use or the results of the use of the LifeSizer Site OR SERVICES in terms of THEIR correctness, accuracy, reliability or otherwise.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LIFESIZER, ANY AGENT OR ANY SERVICE PROVIDER OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF USE.

14. Indemnification

You agree to indemnify and hold LIFESIZER, its employees, suppliers, licensors, agents and its Service Providers (and its and their successors, officers, directors and employees) harmless from and against any and all claims, demands, costs, liabilities, judgments, losses, expenses and damages (including attorneys’ fees) arising out of, in connection with, or related to (a) your use of the LifeSizer Site or any of its services, including without limitation any problems arising from technical difficulties (including, but not limited to, the transmission of computer viruses and the interruption of services), any fraudulent use of a credit card or other payment method used to purchase services, or any violation of these Terms of Use; or (b) any Client Documents or any other data, software, services or other materials that you use in connection with your access or use of the LifeSizer Site or services, including without limitation any claim that such data, software, services or other materials, or any part thereof, infringes, misappropriates, or otherwise violates any copyright, patent, trade secret, trademark or other legal right of any third party.

15. Governing Law; Dispute Resolution

These Terms of Use shall be governed in accordance with the laws of California, without regard to its principles of conflict of laws.

Any dispute, controversy or claim arising out of or relating to the use of the LifeSizer Site, any of its services or these Terms of Use, including any breach thereof, shall be submitted to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Any arbitration shall be conducted in San Francisco, California. Judgment on the award rendered may be entered in any court having jurisdiction thereof.

Without limiting the foregoing, where LIFESIZER or you makes a good faith determination that a breach of these Terms of Use by the other (including infringement of intellectual or proprietary rights) is such that a temporary restraining order or other injunctive relief is the only appropriate and adequate remedy, such action may proceed without first resorting to arbitration as described herein.

16. Electronic Communications

The information communicated through the LifeSizer Site and its services constitutes an electronic communication. When you communicate with us through the LifeSizer Site and its services or the Site or other forms of electronic media, such as e-mail, you are communicating with us electronically. You agree that we may communicate electronically and that such communications, as well as notices, disclosures, agreements and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by us.
Notices and communications to LIFESIZER must be sent to info@lifesizer.com.

17. Jurisdictional Issues

This LifeSizer Site and its services is controlled and operated by LIFESIZER by its and its suppliers and licensors offices in the United States. LIFESIZER makes no representation that materials in the LifeSizer Site and its services are appropriate or available for use in all locations worldwide. You are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the LifeSizer Site and its services from jurisdictions where the contents of the LifeSizer Site and its services are illegal or penalized is prohibited.

18. Feedback

If you provide to us in any way any suggestions or comments regarding the LifeSizer Site or any of its services, features or aspects, you agree that we (and our providers, suppliers and licensors) may use, share, commercialize and exploit any and all such feedback without obligation or liability to you or any third party, in perpetuity. You agree not to submit any feedback that is subject to any third party rights.

19. Miscellaneous

These Terms of Use, and documents referenced and incorporated in and made a part of these Terms of Use, constitute the entire agreement between you and LIFESIZER with respect to the subject matter hereof, and supersedes any and all prior agreements and understandings, whether written or oral, between LIFESIZER and you with respect thereto.

The section and paragraph headings appearing in these Terms of Use are inserted only as a matter of convenience and in no way define, govern, limit, modify or construe the scope or extent of the provisions of these Terms of Use. As used in these Terms of Use, the words “including”, “for example” and derivatives such as “e.g.,” shall mean “including without limitation”.

You agree that the terms of the Uniform Computer Information Transactions Act, to the extent applicable to the Website and your access and use thereof, if at all, shall not apply to these Terms of Use.

If any portion of these Terms of Use is deemed invalid, void or for any reason unenforceable, such portion shall be deemed severable and shall not affect the validity and enforceability of the remaining terms of these Terms of Use. No waiver of any of any right under these Terms of Use shall be deemed to be a waiver of any preceding or subsequent right or other provision and no delay or omission in exercising any such right shall be deemed a waiver of such right.

A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use, to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms of Use or your access to and use of the LifeSizer Site and its services must be filed within one year after such claim or cause of action arose or be forever barred.

These Terms of Use are personal to you and you may not assign these Terms of Use, or your rights or obligations hereunder, to any third party, without LIFESIZER’s consent. Any attempted assignment in contravention of these Terms of Use will be null and void. Any provision of these Terms of Use (including all other incorporated terms, conditions, rules, guidelines and requirements) intended by its terms to survive the expiration, termination or cancellation of your relationship with LIFESIZER and the LifeSizer Site and its services, or of the expiration, termination or cancellation the LifeSizer Site operations, including its product, services and activities, shall survive any such expiration, termination or cancellation.