Last revised on: 8/13/2013

The website located at http://mylapka.com/ (the “Site”) is a copyrighted work belonging to Lapka, Inc. (“Lapka”, “us”, and “we”). Lapka sells personal environment monitors that connect with your Device (defined below) to measure, collect and analyze certain qualities of your surroundings (each, a “Product”) and related Apps (defined below). These terms of use apply to the Site, Product, and App (collectively, the “Service”).

THESE TERMS OF USE (“AGREEMENT”) SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SERVICE. BY ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE SERVICE OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICE.

THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 11.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

  1. PRODUCT TERMS. The Purchase Terms and Conditions, available at http://about.mylapka.com/pem/legal/terms-and-conditions, apply to you if you purchase a Product from our Site. The Purchase Terms and Conditions are incorporated into, and deemed part of, this Agreement.

  2. APP TERMS AND SITE TERMS. The terms in this Section 2 apply to you if you download any of the mobile applications for the Product (each, an “App”) and/or use the Site (as applicable).

    1. Site License. Subject to the terms of this Agreement, Lapka grants you a non-transferable, revocable, non-exclusive, license to use the Site for your personal, noncommercial use.

    2. App License. Subject to the terms of this Agreement, Lapka grants you a non-transferable, non-exclusive, license to install and use the App, in executable object code format only, solely on your own wireless phone, tablet, or other mobile device (“Device”) and for your personal, noncommercial use of the Product. Notwithstanding anything to the contrary, all Apps are licensed, not sold, to you.

    3. Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or App; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or App; (c) you shall not access the Site or App in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or App shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or App content must be retained on all copies thereof. In addition, you agree not to use the Site or App to: (i) distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) interfere with, disrupt, gain unauthorized access to, or create an undue burden on servers or networks connected to the Site or App; or (iii) introduce software or automated agents or scripts to the Site or App to generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or App.

    4. Open Source Software. Certain items of independent, third-party code may be included in the App that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). Such Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in this Agreement restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.

    5. Modification. Lapka may cause App updates to be automatically downloaded onto your Device anytime you are using the App. You hereby consent to such downloading of such updates and such updating of your App. Lapka reserves the right, at any time, to modify, suspend, or discontinue the Site or App or any part thereof with or without notice. You agree that Lapka will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or App or any part thereof.

    6. Apple App Store Additional Terms and Conditions. The following additional terms and conditions apply to you if you are using an App from the Apple iTunes. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 2.6, the more restrictive or conflicting terms and conditions in this Section 2.6 apply, but solely with respect to the Apps from the Apple App Store.

      1. Acknowledgement: Lapka and you acknowledge that this Agreement is concluded between Lapka and you only, and not with the Apple, and Lapka, not the Apple, is solely responsible for the App and the content thereof. To the extent this Agreement provides for usage rules for the App that are less restrictive than the Usage Rules set forth for the App in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting the Apple term applies.

      2. Scope of License: The license granted to you for the App is limited to a non-transferable license to use the App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.

      3. Maintenance and Support: Lapka is solely responsible for providing any maintenance and support services with respect to the App, as specified in this Agreement (if any), or as required under applicable law. Lapka and you acknowledge that the Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

      4. Warranty: Lapka is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify the Apple, and the Apple will refund the purchase price for the App to you; and to the maximum extent permitted by applicable law, the Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Lapka’s sole responsibility.

      5. Product Claims: Lapka and you acknowledge that Lapka, not the Apple, is responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Lapka’s liability to you beyond what is permitted by applicable law.

      6. Intellectual Property Rights: Lapka and you acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Lapka, not the Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

      7. Legal Compliance: 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.

      8. Developer Name and Address: Lapka’s contact information for any end-user questions, complaints or claims with respect to the App is set forth in Section 11.8.

      9. Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using the App.

      10. Third Party Beneficiary: Lapka and you acknowledge and agree that the Apple, and the Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, the Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.

  3. ENVIRONMENTAL DATA AND LOCATION DATA TERMS. When you use the Product, we will collect the data generated by the Product, e.g., organic, radiation, temperature, humidity, and EMF data you collect (“Environment Data”). The App includes a geo-location feature, which may use geo-location technology to approximate the location of your Device (“Location Data”). We use Location Data to record Environmental Data for various locations. This Location Data feature is optional, however, if you choose not to allow the App to access your Device’s location, certain features of the App may not be available. We are not responsible for your Environmental Data or Location Data. We not obligated to backup any Environmental Data or Location Data and they may be deleted at anytime. If you opt-in to sharing your Environment Data, we may share your Environment Data and Location Data publicly, including in the Lapka Environmental Map http://map.mylapka.com.

  4. OWNERSHIP AND OTHER TERMS.

    1. No Support or Maintenance. You acknowledge and agree that Lapka will have no obligation to provide you with any support or maintenance in connection with the Service.

    2. Ownership. You acknowledge that all right, title and interest in the Site and App are owned by Lapka or Lapka’s licensors and all intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Service are owned by Lapka or Lapka’s licensors. Other than the limited license above, the provision of the Site and App does not transfer to you or any third party any intellectual property rights. Lapka and its suppliers reserve all rights not granted in this Agreement.

    3. Feedback. If you provide Lapka any feedback or suggestions regarding the Service (“Feedback”), you hereby assign to Lapka all rights in the Feedback and agree that Lapka shall have the right to use such Feedback and related information in any manner it deems appropriate. Lapka will treat any Feedback you provide to Lapka as non-confidential and non-proprietary. You agree that you will not submit to Lapka any information or ideas that you consider to be confidential or proprietary.

  5. INDEMNITY. You agree to indemnify and hold Lapka (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Service, (b) your violation of this Agreement; or (c) your violation of applicable laws or regulations. Lapka reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Lapka. Lapka will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

  6. THIRD PARTY SITES. The Site might contain links to third party websites (“Third Party Sites”). Such Third Party Sites are not under the control of Lapka and Lapka is not responsible for any Third Party Sites. Lapka provides these Third Party Sites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. When you link to a Third Party Site, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.

  7. LIMITED WARRANTY AND WARRANTY DISCLAIMERS. THE SITE AND APP ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE AND APP, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

  8. LIMITATION ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT, LOSS DATA, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR APP, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SITE OR APP (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), IN EXCESS OF THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID LAPKA FOR THE PRODUCT. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.

  9. APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE ABOVE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTIONS TO JURISDICTIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

  10. TERM AND TERMINATION. Subject to this Section, this Agreement will remain in full force and effect while you use the Service. We may (a) suspend your rights to use the Site and/or App or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or App in violation of this Agreement. Upon termination of this Agreement, your right to access and use the Site and App will terminate immediately. Lapka will not have any liability whatsoever to you for any termination of this Agreement. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 1, 2.3 - 2.6, and 3 - 11.

  11. General

    1. Changes to Terms of Use. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Service. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

    2. Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.

      1. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Lapka and our employees, agents, successors, or assigns, regarding or relating to these the Service or this Agreement, shall exclusively be settled through binding and confidential arbitration.

      2. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.

      3. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

      4. You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.

      5. Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.

      6. With the exception of subparts (1) and (2) in the paragraph 11.2(d) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 11.2s(d) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco, California.

      7. Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided Lapka with written notice prior to the date of termination.

      8. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.

      9. Any and all controversies, disputes, demands, counts, claims, or causes of action between you and Lapka and our employees, agents, successors, or assigns, regarding or relating to these the Service or this Agreement, shall exclusively be governed by the internal laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

    3. Export. The Product and App may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Lapka, or any products utilizing such data, in violation of the United States export laws or regulations.

    4. Disclosures. Lapka is located at the address in Section 11.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

    5. Electronic Communications. The communications between you and Lapka use electronic means, whether you use the Site or send us emails, or whether Lapka posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Lapka in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Lapka provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.

    6. Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Lapka is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Lapka’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Lapka may freely assign this Agreement. The terms of this Agreement shall be binding upon assignees.

    7. Copyright/Trademark Information. Copyright © 2013, Lapka, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

    8. Contact Information.

      Lapka, Inc.
      391 Sutter Street Suite 303
      San Francisco, CA, 94108
      347 320 9241
      info@mylapka.com