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Terms of Use – Providers

MOBILE/ONLINE APPLICATION & WEBSITE TERMS OF USE & END USER LICENSE AGREEMENT
PROVIDERS

Last Modified: October 27, 2023

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND
OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.

THESE TERMS OF USE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE
DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES.

Acceptance of the Terms of Use & End User License Agreement

These Terms of Use and End User License Agreement (“Terms of Use”) are entered into by and between you, as a Provider (defined herein) and PENG Communications, Inc. d/b/a Lokum (“ Lokum,” “Company,”
we,” or “us“). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Use“), govern your access to and use of (whether as a guest or registered user) our proprietary application, whether accessed via our website at lokumapp.com, or our web app at app.lokumapp.com, or our iOS or Android mobile app, downloaded and accessed directly, and in any case including any content, functionality, and services offered thereon, as well as all related documentation (collectively the “App”).

Please read these Terms of Use carefully before you start to use the App. By using the App or by clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, incorporated herein by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the App (in any form).

This App is offered and available to users who are individuals of 21 years of age or older, reside in the United States or any of its territories or possessions, and are appropriately licensed, independent, third-party providers of advanced practice medical services (“ Providers”), to whom these Terms of Use apply, as well as healthcare facilities that seek to contract with Providers for spot, ongoing, short- to mid-term, and/or permanent positions (such healthcare facilities, “ Facilities,” and such positions, regardless of duration or of contract/employment classification, “Jobs”), which Facilities are subject to our Terms of Use – Facilities. By using this App, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not download, install, access or use any form of the App. This App is not open to independent, third-party recruiters, staffing companies, or other individuals or entities seeking to solicit employment postings from, or recruit candidates for, healthcare facilities, and such individuals or entities are prohibited from using this site.

WE DO NOT EMPLOY, RECOMMEND, ENDORSE, TRAIN, VALIDATE (EXCEPT AS MAY BE SPECIFICALLY PROVIDED HEREIN), OR GUARANTEE ANY PROVIDERS OR FACILITIES (COLLECTIVELY, “USERS” AND EACH, A “USER”). LOKUM PROVIDES THE APP FOR USERS TO CONNECT WITH EACH OTHER ONLINE. EACH PROFESSIONAL USER IS SOLELY RESPONSIBLE FOR (1) DECIDING WHETHER TO INTERACT WITH AND FOR ANY INTERACTIONS WITH, ANY OTHER USER, (2) PROVIDING TRUE, ACCURATE, CURRENT AND COMPLETE REPRESENTATIONS REGARDING THEMSELVES, THEIR SKILLS, LICENSES, AND THE SUPERVISION MODELS FOR WHICH THEY QUALIFY, (3) CONDUCTING ALL NECESSARY DUE DILIGENCE BEFORE ACCEPTING A JOB OFFER, AND (4) COMPLYING WITH ALL APPLICABLE LAWS.  FURTHER, EACH   USER ACKNOWLEDGES AND AGREES THAT ANY AGREEMENT SUCH USER ENTERS INTO WITH ANOTHER USER IS AN AGREEMENT BETWEEN THEM AND WE HAVE NOT REVIEWED, ARE NOT PARTY TO, AND HAVE NO LIABILITY UNDER ANY SUCH AGREEMENT.

Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are  effective immediately when we post them (or at such later date as specified in writing), and apply to all access to and use of the App thereafter.  However, any changes to the dispute resolution provisions set out herein will not apply to any disputes for which the parties have actual notice on or before the date  the change is posted on the App.

Your continued use of the App following the posting of revised Terms of Use means that you accept and  agree to the changes. We will advise you via email or on the App of any material changes we have made to these Terms of Use, but you are also expected to check this page from time to time so you are aware  of any changes, as they are binding on you.

Accessing the App and Account Security

We reserve the right to withdraw or amend this App, and any service or material we provide on the App, in our sole discretion without notice. We will not be liable if for any reason all or any part of the App is     unavailable at any time or for any period. From time to time, we may restrict access to some parts of the App, or the entire App, to Users, including registered Users.

You are responsible for making all arrangements necessary to have access to the App, and to comply with these Terms of Use.

To access the App or some of the resources it offers, you may be asked to provide certain registration details or other information and set up an account. It is a condition of your use of the App that all

information you provide is correct, current, and complete. You agree that all information you provide, including, but not limited to, through the use of any interactive features on the App, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a username, password, or any other piece of information as part of   our security procedures, you must treat such information as confidential, and you must not disclose it to anyone. You also acknowledge that your account is personal to you and agree not to provide anyone with access to this App or portions of it using your username, password, or other security information.  You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session.

We have the right to disable any username, password, or other identifier, whether chosen by you or    provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

License and Use of the App; Provider Responsibilities

License.  Subject to your compliance with these Terms of Use, we hereby grant you a limited, revocable, non-exclusive, non-transferable, non- assignable license to (a) download, install, and use the App for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device“) strictly in accordance with the App’s documentation; (b) access, browse, and view the aspects of our App made available to our Users, including Job postings, and to reproduce portions of our App available to Users for the sole purpose of using the App for your personal purposes.

Reservation of Rights. You acknowledge and agree that the App is provided under license, and not sold, to you. You do not acquire any ownership interest in the App under these Terms of Use, or any other rights thereto other than to use the App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms of Use. The Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms of Use.

Interactions with Other Users When interacting with other Users, including Facilities, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. You are solely responsible for your interactions with other Users. We nor our affiliates nor any third party provider are responsible for the conduct, whether online or offline, of any User.

Agreement to Receive Electronic, Telephone Communications.  In order to use our App for its intended purpose, you, we, and other Users will all use electronic means to communicate, whether via the App communications functions, via emails, or our notices posted on the App.  You hereby specifically (a) consent to receive communications from us and  from Facilities in which you have expressed an interest, as well as from Facilities in your area (including but not limited to) regarding potential opportunities, via email and/or text (standard text messaging rates may apply, for which you will be responsible) and/or telephone; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in a hardcopy writing. The foregoing does not affect your non-waivable rights.  Your consent to receiving communications as described this section does not apply to receiving marketing communications for other products or services (unrelated to your account) from   us or from third parties, which topic is addressed elsewhere and/or in our Privacy Policy.

Email Newsletters, In-App Surveys, and Text Notifications.

  •  Subscription to Email Newsletters. By accepting these Terms of Use, you consent to receiving email newsletters from Lokum. These newsletters may include updates on our services, promotional offers, and other relevant information. You may unsubscribe from these newsletters at any time by following the unsubscribe instructions provided in the emails.
  •  In-App Surveys. To enhance our services and improve the user experience, you agree to participate in in-app surveys from time to time. Your responses to these surveys are invaluable to us, and we appreciate your feedback. While participating is voluntary, your input greatly assists     us in making our services better.
  •  Text Notifications. By using our services and accepting these Terms of Use, you agree to receive text notifications or messages related to your account, service updates, and other pertinent information. Standard messaging rates or data charges may apply depending on your mobile carrier plan. You may opt-out of text notifications at any time by following the provided instructions in the messages.
  •  Application Notifications. By using our services and accepting these Terms of Use, you agree to receive app notifications or messages related to your account, service updates, and other pertinent information. You may opt-out of text notifications at any time by following the provided instructions in the messages.
  • Data Privacy. We are committed to safeguarding your privacy and personal information.
  • Opt-Out Preferences. Your preferences regarding email newsletters, in-app surveys, and text notifications can be managed through your account settings. You can update your preferences at any time to control the frequency and types of communications you receive.
  • Legal Compliance. We will always seek to comply with applicable data protection and privacy laws, including but not limited to the GDPR, CCPA, and the CAN-SPAM Act. For specific information about how we handle your data and your rights as a user, please review our Privacy Policy.
  • Contact Us. If you have any questions, concerns, or requests related to our communications or the use of your data, please contact us at [email protected].

Limited Verification; Obligation to Provide Accurate Information The only information that we will verify is that your National Practitioner Identifier (NPI) number matches your name, as found in the National Practitioner Database.  It is your responsibility to provide true, complete, current and accurate information, including but not limited to with respect to your skills, experience, credentials, and supervision models for which you are qualified, as well as to verify information provided to you by Facilities.

Non-Circumvention. Facilities, and not Providers, are required to pay certain fees for use of the App, including for each permanent hire, and Facilities are required to self-report this information.  However, it is a violation of our Terms of Use for a Facility to offer and also for a Professional to knowingly accept an offer outside of the App in circumvention of any obligation to pay such fees.  Where violations are surfaced, we may, at our option and in our sole discretion remove such Facilities and Providers from our App and close their accounts for a period of time or permanently, in addition to any other remedies we  may have in equity or under law.  We ask that if you encounter any such action by a Facility that you notify us promptly.

No Guarantees. You acknowledge and agree that we do not guarantee that Facilities will hire you, or that a Job will not be cancelled by the respective Facility, and there are no remedies in any such instance.

Representations and Warranties. You represent and warrant that:

  • You are duly licensed (as applicable) and have the experience, qualifications, and ability to perform each Job you accept;
  • You will use your best efforts to perform the professional services for any Job that you accept in accordance with the Job specifications on the App and as may be further detailed (or even changed) by the respective Facility;
  • You understand that you are not our agent or representative and you are not authorized to make any representation, contract or commitment on our behalf, and agree not do so;
  • Any health-care related license (each, a “ License”) you provide on the App is valid and you will timely renew for so long as you apply to any Jobs hereunder; and
  • You will promptly notify us and all Facilities that you have an active agreement with if you: (a) become barred from practicing in any jurisdiction, (b) lose any of your Licenses, (c) are facing  disciplinary actions, or (d) make any material changes to your profile.

Acknowledgements. You acknowledge and agree that:

  • THERE IS NO EMPLOYMENT, CONSULTING, CONTRACTOR, PARTNERSHIP, OR JOINT VENTURE RELATIONSHIP WHATSOEVER BETWEEN YOU AND US;
  • we are not an employment service or agency and we have no obligation to secure employment for any Provider, and as such, you will not be entitled to any of the benefits that we provide to our employees, such as group insurance, health insurance, workers compensation insurance,   general liability insurance, and automobile liability insurance;
  • you are solely responsible for any insurance coverage for which you are legally required to maintain, have represented that you maintain, or that you undertake to maintain as part of any agreement with any Facility;
  • you are solely responsible for all tax returns and payments required to be filed with or made to any U.S. federal, state, or local tax authority with respect to your receipt of compensation from any Facility; and
  • you are solely responsible for complying with all applicable state and federal laws, including laws governing self- employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on compensation paid to you by any Facility.

Intellectual Property Rights

The App and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the App for your personal, non-commercial use only in order to access, apply for, and accept prospective Jobs from Facilities.

You must not copy, reproduce, distribute, modify, translate, adapt, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit our App or any of the material on our App, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the App for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
  • You may download a single copy to your computer or Mobile Device solely for your own personal, non-commercial use, in accordance with these Terms of Use.
  • If we provide social media features with certain content, you may take such actions as are enabled by such features.

You must not:

  • Modify copies of any materials from this site;
  • Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part thereof;
  • Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including any copy thereof;
  • Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time; or
  • Remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App.

You must not access or use for any commercial purposes any part of the App or any services or materials available through the App.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the App, or otherwise violate the foregoing, in breach of these Terms of Use, your right to use the App will stop immediately and you must, at our option, return or destroy any copies of the materials. No  right, title, or interest in or to the App or any content on the App is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the App not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

Trademarks

The Company name, the terms Lokum and Lokumapp and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not   use such marks without the prior written permission of the Company. All other names, logos, product    and service names, designs, and slogans on this App are the trademarks of their respective owners.

Prohibited Uses

You may use the App only for lawful purposes and in accordance with these Terms of Use. You agree not to use the App:

  • In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
  • To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out below.
  • To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
  • To impersonate or attempt to impersonate the Company, a Company employee, another User, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the App, or which, as determined by us, may harm the Company or users of the App, or expose them to liability.

Additionally, you agree not to :

  • License, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the App or any portion thereof.
  • Use the App in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the App, including their ability to engage in real time activities through the App.
  • Use any robot, spider, or other automatic device, process, or means to access the App for any purpose, including monitoring or copying any of the material on the App.
  • Use any manual process to monitor or copy any of the material on the App, or for any other purpose not expressly authorized in these Terms of Use.
  • Use any device, software, or routine that interferes with the proper working of the App.
  • Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the App, the server on which the App, or any part thereof, is stored, or any server, computer, or database connected to the App.
  • Attack the App via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the App.

Portions of our platform may include software that is subject to various “open source” or “free” licenses (“Open Source Software”). Open Source Software is subject to the terms and conditions imposed by the licensors of that Open Source Software (“Open Source Terms”). You agree that your use of Open Source Software is subject to and governed by the applicable Open Source Terms. To the extent of any conflict between any Open Source Terms and these Terms of Use, the Open Source Terms shall prevail in connection with the related Open Source Software. Notwithstanding anything to the contrary herein, we do not make any warranty with respect to Open Source Software.

User Contributions

The App may contain opportunities to provide personal information, profiles, your resume, and other interactive features (collectively, “Interactive Services“) that allow Users to post, submit, publish, display, or transmit to other Users (hereinafter, “post“) content or materials (collectively, “User Contributions“)    on or through the App.

All User Contributions must comply with the Content Standards set out below.

By providing any User Contribution on the App, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material according to your account settings.

You represent and warrant that:

  • You own or control all rights in and to the User Contributions and have the right to grant the   license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
  • All of your User Contributions do and will comply with these Terms of Use.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other User.

Feedback

You agree that submission of any ideas, suggestions, comments, and proposals to us (“ Feedback”) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit Feedback. You hereby grant to the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner all Feedback, and to sublicense the foregoing rights, in connection with the operation, maintenance, and enhancement of our App or our services.

Monitoring and Enforcement

We have the right to :

  • Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
  • Take any action with respect to any User Contribution that we deem necessary or appropriate in  our sole discretion, including if we believe that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of other Users or the public, or could create liability for the Company.
  • Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
  • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the App.
  • Terminate or suspend your access to all or part of the App for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the App. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we cannot and  do not undertake to review material before it is posted on the App, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any  User or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Content Standards

These content standards apply to any and all User Contributions and use of Interactive Services. User

Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:

  • Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
  • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
  • Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
  • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy.
  • Be likely to deceive any person.
  • Promote any illegal activity, or advocate, promote, or assist any unlawful act.
  • Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
  • Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
  • Involve commercial activities, including but not limited to third-party recruiting or staffing services; sales; contests, sweepstakes, and other sales promotions, barter, or advertising.
  • Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

If you become aware of any of the foregoing activities by other Users, please contact us immediately so that we can preserve a safe, fair, and professional environment.

Reliance on Information Posted

The information presented on or through the App is made available solely for general information purposes.  Some information is posted by other Users, including Facilities. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on any information on the App is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the App, or by anyone who may be informed of any of its contents.

This App includes content provided by third parties, including materials provided by other Users, including Facilities. All statements and/or opinions expressed in these materials, and all communications and responses, as well as other content, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible or liable to you or any third party for the content or accuracy of any materials provided by any third parties.

Changes to the App

We may update the content on this App from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the App may be out of date at any given time, and we are under no obligation to update such material.

Information About You and Your Visits to the App

All information we collect on this App is subject to our Privacy Policy. By using the App, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

Linking to the App and Social Media Features

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage   our reputation or take advantage of it, but you must not establish a linking such a way as to suggest any form of association, approval, or endorsement on our part.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Use.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

We may disable all or any social media features and any links at any time without notice in our discretion.

Links from the App

If the App contains links to other sites and resources provided by third parties, these links are provided   for your convenience only. If you decide to access any of the third-party websites linked to this App, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

Geographic Restrictions

The owner of the App is based in the State of Texas in the United States. We provide this App for use only by persons located in the United States. We make no claims that the App or any of its content is accessible or appropriate outside of the United States. Access to the App may not be legal by certain persons or in certain countries. If you access the App from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.App Stores

You acknowledge and agree that the availability of the App may be dependent on the third party from which you received the App, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge and agree that these Terms of Use are between you and us and not with the App Store and that we are responsible for our obligations as described in these Terms of Use. However, if you downloaded the App from the Apple App Store, Apple and its subsidiaries are third-party beneficiaries of these Terms of Use. Upon your acceptance of these Terms of Use, Apple shall have the right (and will be   deemed to have accepted the right) to enforce these Terms of Use against you as a third-party beneficiary thereof. These Terms of Use incorporate by reference Apple’s Licensed Application End User  License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and these Terms of Use, the terms of these Terms of Use will control.

Term and Termination

The term of these Terms of Use commences when you download the App and/or register your account, whichever is first, and will continue in effect until terminated by you or us as set forth in this section or  elsewhere in these Terms of Use. You may terminate these Terms of Use by deleting the App and all copies thereof from your Mobile Device. We may terminate these Terms of Use in our sole discretion at any time for any reason, with or without notice and without liability to you or any third party. In addition, these Terms of Use will terminate immediately and automatically without any notice if you violate any of the terms and conditions of these Terms of Use.

Upon termination: (a) all rights granted to you under these Terms of Use will also terminate; and (b) you  agree that you will cease all use of the App and delete all copies of the App from your Mobile Device and account.

Termination will not limit any of our rights or remedies at law or in equity.

Even after your right to use the App is terminated, these Terms of Use will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of these Terms of Use.

Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the App will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.

TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY APP LINKED TO IT.

YOUR USE OF THE APP, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP IS AT YOUR OWN RISK. THE APP, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITH ALL FAULTS AND DEFECTS WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE APP. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE APP, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE APP, ANY APP LINKED TO IT, ANY CONTENT ON THE APP OR SUCH OTHER APP, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE GREATER OF $500.00 OR THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR THE APPLICABLE SERVICES IN THE LAST SIX MONTHS OUT OF WHICH LIABILITY AROSE.

The limitations of liability set out above do not apply to liability resulting from our gross negligence or willful misconduct.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

The limitations of liability set forth above are fundamental elements of the basis of the bargain between you and us.

Indemnification

You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns (“ Indemnified Parties”) from and against any claims, liabilities,

damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees, collectively “ Losses”) arising out of or relating to (a) your violation of these Terms of Use, (b) your use of (or inability to use) the App, including, but not limited to, your User Contributions, any use of the App’s content, services, and products other than as expressly authorized in these Terms of Use, or your use of  any information obtained from the App, (c) your violation of any rights of another party, including any Users; or (d) your violation of any applicable laws, rules or regulations. For the avoidance of doubt, this indemnification provision applies to any claims that you were misclassified as an independent contractor, and any claims arising from or related to such misclassification.

We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you willfully cooperate with us in asserting any available defenses.

You agree that the provisions in this section will survive any termination of your account, these Terms of Use, or your access to the App.

Governing Law and Jurisdiction

All matters relating to the App and these Terms of Use, and any dispute or claim arising therefrom or    related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction).

Subject to the Arbitration provisions hereof, any proceeding arising out of, or related to, these Terms of Use or the App shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Arbitration & Waiver of Class Actions

Please read the following arbitration agreement in this section (the “Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us.

Any dispute or claim relating in any way to your access or use of our App, to any services distributed  through our App, or to any aspect of your relationship with us (each, a “ Dispute”) will be resolved by binding arbitration, rather than in court, except for the exceptions expressly stated herein.

The following Disputes are not subject to this Arbitration Agreement: (1) Disputes that qualify for small   claims court, so long as the Dispute remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use of our App; and (3) claims regarding injunctive or other equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).

YOU FURTHER AGREE THAT ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.  SPECIFICALLY YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST US ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF, UNLESS OTHERWISE PERMITTED BY LAW.   INSTEAD, YOU AGREE TO BRING ANY CLAIMS AGAINST US IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF PERMITTED BY APPLICABLE LAW BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THESE TERMS OF USE, INCLUDING THIS ARBITRATION AGREEMENT.

The Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) governs this Arbitration Agreement. The arbitration will be conducted under the Rules of Arbitration of the American Arbitration Association applying Texas law. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties unless all parties (including us) consent in writing.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, and these Terms of Use (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis to the same extent that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

EACH OF YOU AND US HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. We are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified above.

If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of  the Arbitration Agreement s hall continue in full force and effect.

This Arbitration Agreement will survive the termination of your relationship with us and your use of this App.

Notwithstanding any provision in the Terms of Use to the contrary, you agree that if we make any material change to this Arbitration Agreement, it will not apply to any individual claim(s) for which you have already demanded arbitration or are then pending in arbitration.

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Waiver and Severability

No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

Entire Agreement

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and us regarding the App and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the App.

Your Comments and Concerns

This App is operated by PENG Communications, Inc. d/b/a Lokum.

All feedback, comments, requests for technical support, and other communications relating to the App should be directed to : [email protected].