Effective February 7, 2022
Acceptance of Agreement
By accessing, browsing and/or using the Mobile App, Website and/or the Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations. The terms and conditions of this Agreement form an essential basis of the bargain between you and Latitude, and this Agreement governs your use of the Mobile App, Website and the Services. Other aspects of the Mobile App and Services may be covered by other terms, conditions and agreements with Latitude or third parties such as financial institutions.
Use of Latitude
You may not use the Mobile App, Website and/or Services in any manner that may impair, overburden, damage, disable or otherwise compromise (i) Latitude’s Mobile App, Website and/or Services; (ii) any other party’s use and enjoyment of the Mobile App, Website and/or Services; or (iii) the services and products of any third parties including, without limitation, any device through which you access the Mobile App. You agree to comply with all applicable laws and regulations governing the downloading, installation and/or use of the Mobile App, including, without limitation, any usage rules set forth in the online Mobile App’s store’s terms of service.
Minimum Technology Requirements
To access and use the Mobile App and Services,you must have a mobile device with access to the Internet running Apple iOS 10.3 or higher. You must also have a valid mobile number and emailaddress, and sufficient storage space to install any required mobile application.Latitude’s mobile application is available on the Apple App Store (forApple devices).
Updates to Mobile App
From time to time, Latitude may automatically check the version of theMobile App installed on your authorized device and, if applicable, provide updates for the Mobile App (“Updates”). Updates may contain, without limitation, bug fixes, patches, enhanced functionality, plug-ins and new versions of the Mobile App. By installing the Mobile App, you authorize the automatic download and installation of Updates and agree to download and install Updates manually if necessary. Your use of the Mobile App and Updates will be governed by this Agreement (as amended by any terms and conditions that may be provided with Updates). Latitude reserves the right to temporarily disable or permanently discontinue any and all functionality of the Mobile App at any time without notice and with no liability to you.
You must be at least eighteen (18) years old to use the Mobile App and/or Services. By agreeing to this Agreement you represent and warrant to us: (i) that you are at least eighteen (18) years old; (ii) that you have not previously been suspended, removed or deactivated from the Mobile App and/or Services; (iii) that you are a legal resident of the United States; and (iv) that your registration and your use of the Mobile App and/or Services is in compliance with any and all applicable laws and regulations.
Overview of Services
Latitude offers a variety of services and features collectively referred to in this Agreement as the “Services.” These Services include, without limitation:
(a) Mobile Banking Services: A suite of services and features available to all Latitude members that open a Latitude demand deposit account (“Bank Account”) and Latitude debit Mastercard (“Latitude Card”) to help you view, manage and access your Bank Account (via the Mobile App) and Latitude Card. The Bank Account and Latitude Card are provided by Lewis and Clark Bank (the “Bank”), member FDIC, in partnership with Latitude. Your use of the Mobile Banking Services is governed by this Agreement. However, the Bank Account, Latitude Card and any transactions you make on your Bank Account or Latitude Card (including transactions you initiate through the Mobile Banking Services) are covered by the Latitude’s Deposit Agreement found within the Mobile App by clicking on “Profile,” “Disclosures,” then “Deposit Agreement.” There are no fees for accessing or using the Mobile Banking Services, however, as described in the Deposit Agreement, there is an annual account fee of $195 (or $16.25 per month) related to your Bank Account(the “Account Fee”).
(b) Preferred Services: A suite of services and features, as described within the Mobile App and Website, that are exclusive to Latitude members enrolled in our preferred tier (“Preferred Member”). There are no additional fees for accessing or using the Preferred Services.
(c) Premier Services: A suite of services and features, as described within the Mobile App and Website, that are exclusive to Latitude members enrolled in our premier tier (“Premier Member”). Subject to offer sand discounts, the Premier Services are $395 per year (the “Premier Fee”) for access to and use of such services.
(d) Carte Blanche Services: A suite of services and features, as described within the Mobile App and Website, that are exclusive to Latitude members enrolled in our carte blanche tier (“Carte Blanche Member”). Subject to offers and discounts, the Carte Blanche Services are $995 per year (the “Carte Blanche Fee”) for access to and use of such services.
(a) Account Creation. To access Latitude’s Mobile App and/or Services, you must: (i) receive an invite code from us or an existing member to access our Mobile App; and (ii) create an account with Latitude(“Latitude Account”) through our Mobile App with the option of enrolling as (a) a Preferred Member for free, or (b) either a Premier Member or Carte Blanche Member for a fee. In terms of opening your Latitude Account, you must create a Login ID and password to access the Mobile App and Services. You agree that the information you provide to Latitude on registration, and at all other times, and to the Bank (“Member Information”), will be true, accurate, current, and complete, and that you will keep this Member Information accurate and up-to-date at all times. You also agree not to disclose your password to anyone else, and agree that you will be solely responsible for any activities or actions taken under your Bank Account, whether or not authorized by you. Please notify us immediately of any unauthorized use of your password or other Member Information. We are not liable for any loss or damage from your failure to comply with these requirements. You further represent that you are a legal owner of, and that you are authorized to provide us with, all Member Information and other information necessary to facilitate your use of the Mobile App and/or Services.
(b) Identity Verification. In order to use certain Services, Latitude may be required to verify your identity. Thus, you hereby authorize Latitude, directly or through third parties, to make any inquiries we consider necessary to validate your identity and/or authenticate your identity and Member Information. This may include asking you for further information and/or documentation about your identity, or requiring you to take steps to confirm ownership of your email address, wireless/cellular telephone number or financial instruments, and verifying your information against third party databases or through other sources. If you do not respond to such inquiries or we cannot verify your identity, we can refuse to allow you to use the Mobile App and/or Services.
(c) Third-Party and Latitude Account Information. To use the Mobile App and/or Services, you may direct Latitude to retrieve your Bank Account transaction history, balance information, and/or other information maintained by third-parties with which you have relationships, maintain accounts or engage in financial transactions (“Third-Party Account Information”). This includes information maintained by the Bank for Bank Accounts and related products and services. Latitude works with one or more third-party service providers to access this Third-Party Account Information. We will use this information to provide you with the Services you request, for our own internal business purposes and to offer you other Latitude products and services that may be of interest to you. By using the Services, you authorize Latitude to access this information maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. With the exception of information related to your Bank Account or Latitude Account, Latitude does not review the Third-Party Account Information for accuracy, legality or non-infringement, and Latitude is not responsible for your Third-Party Account Information or products and services offered by or on third-party sites. You acknowledge that any Third Party Account Information that is displayed through the Services will be the information we most recently accessed, and that this information may not reflect pending transactions or other recent activity.
(d) Limitations. You may not create more than one (1) Bank Account, and each unique mobile device may not be associated with more than one (1) Latitude Account. Members who attempt to associate an excessive number of mobile devices with a single Latitude Account may be deemed to have violated this Agreement to the extent they are deemed by Latitude to have abused the Services, and may be subject to suspension or closure.
Membership and Annual Fees
As part of creating your Latitude Account, you have the option of enrolling in one of our free or paid membership plans. You have the option of enrolling: (i) for free as a Preferred Member, or (ii) for a fee as either a Premier Member or Carte Blanche Member.
(a) Preferred Member. Preferred Members get access to the Mobile Banking Services and Preferred Services. There are no fees for accessing or using the Mobile Banking Services and/or Preferred Services, however, per the Deposit Agreement, you must pay the Account Fee related to your Bank Account. The Account Fee is payable on the day you open your Bank Account as a Preferred Member, and each anniversary of such day thereafter (the “Renewal Date”), until: (i) such Bank Account is terminated by us or by you; or (ii) at your option, you upgrade to a paid membership as either a Premier Member or Carte Blanche Member, and the Account Fee is waived.
By closing your Bank Account as a Preferred Member, you will be cancelling your access to the Preferred Services as well as the Mobile Banking Services, and you will be reimbursed up to $16.25 (subject to adjustments for discounts, etc.) for each whole month prior to the Renewal Date that we did not earn the Account Fee on your Bank Account. For example, if you paid the Account Fee on January 4, and you close your Bank Account on March 15 of the same year, we will refund you $146.25 (or $16.25 for each month from April to December). However, if you upgrade from a Preferred Member to either a Premier Member or Carte Blanche Member, on the date your membership is upgraded (the “Upgrade Date”), your Account Fee will be waived, and you will then: (i) receive a prorated reimbursement for each whole month prior to the Renewal Date that we did not earn the Account Fee on your Bank Account; and (ii) be required to pay the full fee for either the Premier Services or Carte Blanche Services. For example, if you are a Preferred Member and pay your Account Fee on January 4, and then upgrade to a Premier Member on March 15 of the same year, on the Upgrade Date we will: (i) reimburse you $146.25 for your Account Fee (or $16.25 for each month from April to December); and (ii) charge you $395 for your Premier Fee on such date, and each anniversary of the Upgrade Date thereafter, until (a) your membership as a Premier Member is terminated by us or by you, or (b) you optionally downgrade to become a Preferred Member (for a free membership), or upgrade to become a Carte Blanche Member (for another paid membership).
(b) Premier Member. Premier Members get access to the Mobile Banking Services, Premier Services and receive a waiver for the Account Fee related to your Bank Account. There are no fees for accessing or using the Mobile Banking Services, however, you must pay the Premier Fee for your access to and use of the Premier Services. The Premier Fee is payable on the day you open your Latitude Account as a Premier Member, and each anniversary of such day thereafter (the “Premier Renewal”), until: (i) your membership as a Premier Member is terminated by us or by you; or (ii) you optionally downgrade to become a Preferred Member (for a free membership), or upgrade to become a Carte Blanche Member (for another paid membership).
By closing your Latitude Account as a Premier Member, you will be cancelling your access to the Premier Services as well as the Mobile Banking Services, and you will be reimbursed up to $32.92 (subject to adjustments for discounts, etc.) for each whole month prior to the Premier Renewal that we did not earn the Premier Fee. For example, if you paid the Premier Fee on January 4, and you cancel your membership as a Premier Member on March 15 of the same year, we will refund you $296.28 (or $32.92 for each month from April to December).
However, if you downgrade from a Premier Member to a Preferred Member, on the date your membership is downgraded (the “Downgrade Date”), your Account Fee will be reinstated, and you will then: (i) receive a prorated reimbursement for each whole month prior to the Premier Renewal that we did not earn the Premier Fee; and (ii) be required to pay the full Account Fee related to your Bank Account. For example, if you are a Premier Member and pay your Premier Fee on January 4, and then downgrade to a Preferred Member on March 15 of the same year, on the Downgrade Date we will: (i) reimburse you $296.28 for your Premier Fee (or $32.92 for each month from April to December); and (ii) charge you $195 for the Account Fee related to your Bank Account as a Preferred Member on such date, and each anniversary of the Downgrade Date thereafter, until: (i) such Bank Account is terminated by us or by you; or (ii) at your option, you upgrade to a paid membership as either a Premier Member or Carte Blanche Member, and the Account Fee is waived.
Furthermore, if you upgrade from a Premier Member to a Carte Blanche Member, on the Upgrade Date you will: (i) receive a prorated reimbursement for each whole month prior to the Premier Renewal that we did not earn the Premier Fee; and (ii) be required to pay the full Carte Blanche Fee. For example, if you are a Premier Member and pay your Premier Fee on January 4, and then upgrade to a Carte BlancheMember on March 15 of the same year, on the Upgrade Date we will: (i) reimburse you $296.28 for yourPremier Fee (or $32.92 for each month from April to December); and (ii) charge you $995 for your CarteBlanche Fee on such date, and each anniversary of the Upgrade Date thereafter, until (a) your membershipas a Carte Blanche Member is terminated by us or by you, or (b) you optionally downgrade to become aPreferred Member (for a free membership) or Premier Member (for another paid membership).
(c) Carte Blanche Member. Carte Blanche Members get access to the Mobile Banking Services, Carte Blanche Services and receive a waiver for the Account Fee related to your Bank Account. There are no fees for accessing or using the Mobile Banking Services, however, you must pay the Carte Blanche Fee for youraccess to and use of the Carte Balance Services. The Carte Blanche Fee is payable on the day you openyour Latitude Account as a Carte Blanche Member, and each anniversary of such day thereafter (the “Carte Blanche Renewal”), until: (i) your membership as a Carte Blanche Member is terminated by us or by you; or (ii) you optionally downgrade to either a Preferred Member (for a free membership) or Carte Blanche Member (for another paid membership).
By closing your Latitude Account as a Carte Blanche Member, you will be cancelling your access to the Carte Blanche Services as well as the Mobile Banking Services, and you will be reimbursed up to $82.92 (subject to adjustments for discounts, etc.) for each whole month prior to the Carte Blanche Renewal that we did not earn the Carte Blanche Fee. For example, if you paid the Carte Blanche Fee on January 4, and you cancel your membership as a Carte Blanche Member on March 15 of the same year, we will refund you $746.25 (or $82.92 for each month from April to December).
However, if you downgrade from a Carte Blanche Member to a Premier Member or Preferred Member, on the Downgrade Date, you will then: (i) receive a prorated reimbursement for each whole month prior to the Carte Balance Renewal that we did not earn the Carte Blanche Fee; and (ii) be required to pay the full (a) Account Fee related to your Bank Account, or (b) the Premier Fee. For example, if you are a Carte Blanche Member and pay your Carte Blanche Fee on January 4, and then downgrade to a Premier Member on March 15 of the same year, on the Downgrade Date we will: (i) reimburse you $746.25 for your Carte Blanche Fee (or $82.92 for each month from April to December); and (ii) charge you $395 for your Premier Fee on such date, and each anniversary of the Downgrade Date thereafter, until (a) your membership asa Premier Member is terminated by us or by you, or (b) you optionally downgrade to become a PreferredMember (for a free membership) or upgrade to a Carte Blanche Member (for another paid membership).
Latitude Rewards Program
From time-to-time Latitude may offer a rewards program (the “Rewards Program”) to enable eligible members to receive points and/or cash back for certain actions (“Rewards”). Rewards will generally be reflected in the Mobile App, subject to delays, after completing a “Qualified Action”. A “Qualified Action”, which may include specified purchases, offers, referrals, etc., is an action conducted in accordance with the terms of such action (which may include, but not limited to, a minimum transaction amount, expiration date, any other additional terms or limitations associated with the action) and this Agreement.
By providing us with a telephone number for a cellular phone or other wireless device, you agree to receive autodialed and pre-recorded, non-marketing, service-related text messages from or on behalf of Latitude at the phone number provided. You further consent to receiving autodialed and pre-recorded text messages from or on behalf of Latitude at the number provided for marketing or promotional purposes. You understand that consent to marketing-related messages is not a condition of using the Services. Standard message and data rates may apply to both non-marketing and marketing-related messages.
By agreeing to this Agreement, you agree to receive push notifications from us. You can opt out of receiving push notifications through your Mobile App settings. Please note that opting out of receiving push notifications may impact your use of the Services.
Third Party Websites
The Services, including our Website, may contain links to third-party websites and applications. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply our endorsement of, sponsorship of, or affiliation with the linked site. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties’ services or websites.
Latitude does not claim ownership of the content that you provide, upload, submit or send through the Services or to Latitude. You understand and agree that all materials transmitted on or through the Services are the sole responsibility of the sender, not Latitude, and that you are responsible for all material you provide, upload, submit or send to or through the Services. When you provide content to Latitude or through the Services, you grant Latitude (and parties that we work with) a non-exclusive, irrevocable, royalty-free, transferable, and worldwide license to use your content and associated intellectual property and publicity rights in any manner and for any purpose, including to improve the Services and create other products and services. Latitude will not compensate you for any of your content. You acknowledge that Latitude’s use of your content will not infringe any intellectual property or publicity rights. Further, you acknowledge and warrant that you own or otherwise control all of the rights of the content you provide, and you agree to waive your moral rights and promise not to assert such rights against Latitude.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Services (“Feedback”), then you hereby grant Latitude an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty free right to exploit the Feedback in any manner and for any purpose, including to improve the Services and create other products and services.
BY USING THE SERVICES YOU AGREE NOT TO:
(a) breach this Agreement or any other agreement between you and Latitude or violate any Latitude policy;
(b) access or use any part of the Services for any non-personal, commercial purpose;
(c) access or use the Services for any illegal purpose or violate any law, statute, ordinance, or regulation;
(d) attempt to gain unauthorized access to any other member’s Bank Account and/or Latitude Account;
(e) modify or attempt to modify or in any way tamper with, circumvent, disable, damage or otherwise interfere with the Services;
(f) access or use the Services in a way that may infringe upon the intellectual property or other rights of any third party, including, without limitation, trademark, copyright, privacy, or publicity rights;
(g) provide false, inaccurate or misleading information;
(h) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services or any part thereof (including any Application), except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
(i) modify, adapt, translate or create derivative works based upon the Services or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law;
(j) copy, distribute, transfer, sell or license all or part of the Services;
(k) transfer the Application to, or use the Application on, a device other than the Authorized Device;
(l) intentionally interfere with or damage operation of the Services or any member’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
(m) take any action to circumvent, compromise or defeat any security measures implemented in the Services;
(n) use the Services to access, copy, transfer, retransmit or transcode information, Latitude logos, marks, names or designs or any other content in violation of any law or third party rights; and/or
(o) remove, obscure, or alter Latitude’s (or any third party’s) copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed through the Services.
Modification of Agreement
Latitude reserves the right, in its sole discretion, at any time to modify, augment, limit, suspend, discontinue or terminate any or all of the Services without advance notice. All modifications and additions to the Services shall be governed by this Agreement, unless otherwise expressly stated by Latitude inwriting. Latitude may, from time to time, modify the Agreement. Please check this Agreement periodically for changes. Your continued use of the Services after the changes become effective constitutes your binding acceptance of such changes. In the event that a change to this Agreement materially modifies your rights or obligations, we will make an effort to notify you of the change, such as by sending you an email to the address we have on file for you, or presenting a pop-up window or other notification to you through the Services when you log in to the Mobile App, and we may require that you accept the modified Agreement in order to continue to use the Services. Immaterial modifications are effective upon publication, and material changes will be effective upon the earlier of (a) continued use of the Services with actual knowledge of the modification, or (b) thirty (30) days following the change. For the avoidance of doubt, disputes arising hereunder will be resolved in accordance with the Agreement in effect that the time the dispute arose. You can determine when this Agreement was last revised by referring to the “EFFECTIVE DATE”.
This Agreement is effective beginning when: (i) you accept the Agreement; (ii) first download, install or access the Mobile App; or (iii) use the Services, and ending when terminated as described below.
(a) Termination by Latitude. Without limiting other remedies, Latitude may immediately terminate or suspend your access to and/or use of the Services and remove, subject to any regulatory retention requirements, any material from the Services or our servers, in the event that you breach this Agreement. Notwithstanding the foregoing, we also reserve the right to terminate, limit or suspend your access to or use of the Services at any time and for any reason or no reason, including: (i) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of Latitude or any third party; or (ii) in connection with any general discontinuation of the Services. We also reserve the right to modify the Services at any time without notice to you. We will have no liability whatsoever on account of any change to the Services or any suspension or revocation of your access to or use of the Services.
(b) Termination by You. You may terminate acceptance of this Agreement at any time by closing your Latitude Account (thereby closing your Bank Account and access to the Services) and permanently deleting the Application in its entirety from the authorized device, whereupon (and without notice from Latitude)any rights granted to you herein will automatically terminate. If you fail to comply with any provision of this Agreement, any rights granted to you herein will automatically terminate. In the event of such termination, you must immediately delete the Application from the authorized device.
Effect of Termination
Intellectual Property Rights
You hereby acknowledge that Latitude owns all rights, title and interest in and to the Services and to any and all proprietary and confidential information contained therein (“Latitude Information”). The Services and Latitude Information, including visual interfaces, graphics, design, compilation, information, computer code (including source /code or object code), products, software, services, look-and-feel, and all other elements of the Services, are protected by applicable intellectual property and other laws, including patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
(a) Latitude respects the intellectual property rights of others and expects you to do the same. Accordingly, we will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or through the Services infringe your copyright, you may request removal of those materials (or access to them) from the Services by submitting written notification to our Copyright Agent (designated below).
(b) In accordance with the Digital Millennium Copyright Act of 1998, (17 U.S.C. § 512) (“DMCA”) the text of which may be found on the U.S. Copyright Office website here
, the written notice (the “DMCA Notice”) must include substantially the following:
(i) your full legal name, telephone number, and email address;
(ii) and physical or electronic signature;
(iii) identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Services, a representative list of such works;
(iv) identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
(v) a statement by that you have a good faith belief that the disputed use has not been authorized by the copyright owner, its agent, or the law;
(vi) a statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
(vii) your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf.
(c) Our designated Copyright Agent to receive DMCA Notice can be contacted at firstname.lastname@example.org
(d) If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
To the fullest extent permitted by law, you agree to indemnify, defend and hold Latitude and all of its successors, parents, subsidiaries, affiliates, officers, directors, stockholders, investors, employees, agents, representatives and attorneys and their respective heirs, successors and assigns (collectively, the “Indemnified Parties”), harmless from and against any and all claims, liabilities, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties arising out of or relating to (i) your access to, use of or alleged use of the Services; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You shall cooperate as fully as reasonably required in the defense of any such claim. Latitude reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You agree not to settle any matter without the prior written consent of Latitude.
Miscellaneous and Entire Agreement
If any portion of this Agreement is deemed unlawful, void, or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void, or unenforceable, but only that portion of this Agreement that is unlawful, void, or unenforceable shall be stricken from this Agreement. If we do not exercise or enforce any legal right or remedy that is contained in the Agreement, such decision on our part will not serve as a formal waiver of our rights. Those rights or remedies will still be available to us. All covenants, agreements, representations, and warranties made in this Agreement shall survive your acceptance of this Agreement and its termination. By using the Website, Mobile Appand/or Services, you warrant and represent that you are competent to enter this binding Agreement.
Disclaimers; No Warranties
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS REQUIRED BY LAW, LATITUDE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. SPECIFICALLY, BUT WITHOUT LIMITATION, LATITUDE DOES NOT WARRANT THAT: (1) THE INFORMATION PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE CORRECT, ACCURATE, UP-TO-DATE, OR RELIABLE; (2) THE SERVICES BE UNINTERRUPTED OR ERROR-FREE; (3) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED BY OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; OR (4) ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE INDEMNIFIED PARTIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE INDEMNIFIED PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE WHERE SUCH DAMAGES RESULT FROM: (i) YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICES, OR (ii) ANY PURCHASE OF A THIRD PARTY PRODUCT OR SERVICE BASED ON INFORMATION CONTAINED IN THE LATITUDE SERVICES, INCLUDING THE AVAILABILITY OF A COUPON. YOU SPECIFICALLY ACKNOWLEDGE THAT THE INDEMNIFIED PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE INDEMNIFIED PARTIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You agree that any dispute between you and Latitude arising out of or relating to this Agreement or the Services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
(a) Governing Law - Except as otherwise required by applicable law, the Agreement and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles. These laws will apply no matter where in the world you live, but if you live outside of the United States, you may be entitled to the protection of the mandatory consumer protection provisions of your local consumer protection law.
(b) Informal Dispute Resolution - We want to address your concerns without needing a formal legal case. Before filing a claim against Latitude, you agree to try to resolve the Dispute informally by contacting email@example.com. We will try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Latitude may bring a formal proceeding.
(c) We Both Agree To Arbitrate - You and Latitude agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
(d) Opt-out of Agreement to Arbitrate - You can decline this agreement to arbitrate by contacting firstname.lastname@example.org within 30 days of first accepting this Agreement and stating that you (include your first and last name) decline this arbitration agreement.
(e) Arbitration Procedures - The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes then in effect. Arbitration will be handled by a sole arbitrator in accordance with those rules. The arbitration will be held in the United States county where you live or work, Los Angeles, California, or any other location we agree to.
(f) Arbitration Fees - The AAA rules will govern payment of all arbitration fees. If the value of your claim does not exceed $10,000, Latitude will pay for the reasonable filing, administrative, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
(g) Exceptions to Agreement to Arbitrate - Either you or Latitude may assert claims, if they qualify, in small claims court in Los Angeles, California, or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
(h) No Class Actions - You may only resolve Disputes with Latitude on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement.
(i) Judicial Forum for Disputes - Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, you and Latitude agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Los Angeles, California. Both you and Latitude consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
(j) Limitation on Claims - Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or the Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
In the event of termination of this Agreement or the Services, the terms in this Agreement that by their nature are continuing shall survive such termination, including but not limited to the indemnification and hold harmless obligations, disclaimers and limitations of liabilities.
If you have any questions regarding Latitude, the Services, or this Agreement please email us at email@example.com.