Lowell Observatory Terms of Use

Last Updated:  06/23/2017  

Welcome to the website of Lowell Observatory, an Arizona corporation ("Lowell," "us" "our" or "we").  The following terms and conditions, together with any documents they incorporate by reference (collectively, the "Terms of Use"), govern your access to and use of Lowell.edu (the "Website"), an mobile applications that may be offered by Lowell (collectively, the "Apps"), and any of our other services and tools related to your access to the Website and the Apps (collectively, we will refer to such other services and tools provided by Lowell, along with the Apps, as the "Service").  Please read the Terms of Use carefully before using this Website or Services and let us know if you have any questions or concerns.  This Website and Services are available ONLY TO USERS 13 YEARS OF AGE OR OLDER. Notwithstanding the foregoing, the Store is available ONLY TO USERS 18 YEARS OF AGE OR OLDER.

NOTICE REGARDING DISPUTE RESOLUTION:  These Terms of Use contain provisions that govern the resolution of claims between you and Lowell.  They also include an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration.  Unless you opt out, you will only be able to pursue claims against Lowell on an individual basis, not as part of any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

Acceptance and Modification of the Terms of Use. 

By accessing or using the Website or Services, or by clicking to accept or agree to the Terms of Use when this option is made available, you acknowledge that you have read, understand, and agree, without limitation or qualification, to be bound and abide by the Terms of Use, which include our Privacy Policy and Sales and Refund Policy, both incorporated herein by reference.  If you do not wish to agree to the Terms of Use, the Privacy Policy, or the Sales and Refund Policy, you must not access or use the Website or Services. 

Also, please note that we may revise and update these Terms of Use from time to time in our sole discretion.  All changes are effective immediately when posted and apply to all access to and use of the Website and Services thereafter.  Your continued use of the Website and Services following the posting of changes means that you accept and agree to the changes.   It is your responsibility to check these Terms of Use periodically for changes, as these changes are binding on you. 

Privacy Policy. 

We value your privacy and understand your privacy concerns.  Please review our Privacy Policy, which also governs your access to and use of the Website and Services, so that you may understand our privacy practices.  All information we collect is subject to our Privacy Policy, and by using the Website or Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.  You further understand that any information collected by Lowell may be transferred to the United States and/or other countries for storage, processing and use by Lowell and its affiliates.

The Store.

The store is where you can purchase products (including videos and applications) and/or services (collectively, the "Products").  When you purchase Products from the store, you will buy it directly from Lowell pursuant to a separate sales contract for the Product based on these Terms of Use.  In addition, these Terms of Use will apply to your use of the Store. 

Sales and Refund Policy. 

We value you as a customer and want to ensure you enjoy your shopping experience with us.  Please review our Sales and Refund Policy, which governs any purchases made through our store. 

Intellectual Property. 

All content, features and functionality available on or through the Website or Services, including but not limited to the Apps, text, graphics, logos, button icons, images, audio and video clips, data compilations, software and computer code, and the design, selection and compilation thereof (collectively, the "Content") is the property of Lowell and/or its affiliates, partners or licensors, and is protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary laws.  The Lowell Observatory name, trademarks, logos, product and service marks, and designs and slogans displayed on the Website or Services (collectively, the "Trademarks") are the marks and registered marks of Lowell and/or its affiliates, partners or licensors, in the United States and other countries, and are protected by United States and international trademark laws.  You are not permitted to use these Trademarks without the prior written consent of Lowell or such third party that may own the marks.  Furthermore, except as set forth in the Limited License section below, or as required under applicable law, you may not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, transmit or otherwise exploit, in whole or in part, any of the Content, Trademarks, or any portion of the Website or Services, for any purpose, without Lowell's express prior written consent.  No right, title or interest in or to the Website, Services or Content is transferred to you, and all rights not expressly granted in the Terms of Use are reserved by Lowell.  Any use of the Website or Services not expressly permitted by the Terms of Use is a breach of the Terms of Use and may violate copyright, trademark, or other laws.

Limited License.  

As long as you comply with the Terms of Use, we hereby grant you a limited, revocable, non-assignable and non-exclusive license to access and make personal, non-commercial use of the Website and Services.  This limited license does not include the right to:  (i) use, display, mirror or frame the Website or Services, any individual element within the Website or Services, the Trademarks or other proprietary information, or the layout and design of any page, without our express written consent; (ii) access the Site or Services by any means other than through the interface provided by Lowell and as otherwise expressly authorized under these Terms of Use; (iii) access, tamper with, or use non-public areas of the Website or Services, our computer systems, or the technical delivery systems of our providers; (iv) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Lowell or any of our providers or any other third party (including another user) to protect the Website or Services; (v) forge headers or otherwise manipulate identifiers in order to disguise the origin of any of your Submissions transmitted through the Website or Services; (vi) attempt to access or search the Website or Services or scrape or download any user content from the Website or Services, or otherwise use or upload content to, or create new links, reposts, or referrals in the Website or Services through the use of any engine, soft-ware, tool, agent, device or mechanism (including automated scripts, spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Lowell or other generally available third party web browsers; (vii) send or post onto the Website or Services any unsolicited or unauthorized spam, advertising messages, promotional materials, email, junk mail, chain letters or other form of solicitation; (viii) use any meta tags or other hidden text or metadata utilizing the Website or Services or a Lowell trademark, logo, or URL without Lowell's express written consent; (ix) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Website or Services; (x) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending or posting a virus, overloading, flooding, spamming, or mail-bombing the Website or Services; (xi) reproduce, duplicate, copy, modify, make derivative works of, sell, trade, resell or exploit for any commercial purpose any portion of the Website or Services or your access to or use of the Website or Services; (xii) collect or store any personally identifiable information from other users of the Website or Services without their express permission; (xiii) stalk or otherwise harass another person or entity; (xiv) impersonate or misrepresent your affiliation with any person or entity; (xv) access the Website or Services for the purpose of building a competitive product or service or copying its features or user interfaces; (xvi) violate any applicable law or regulation; or (xvii) encourage or enable any other individual to do any of the activities prohibited in these Terms of Use.  We also grant you a limited, revocable, non-assignable and non-exclusive license to create a hyperlink to the home page of the Website; provided, however, that any website linking to our Website must not:  (i) replicate our Content; (ii) imply that we endorse such website or its services or products; (iii) misrepresent its relationship with us; (iv) contain content that is unlawful or inappropriate for all ages or contain content that could be construed as distasteful, obscene, offensive or controversial; (v) portray us or our products or services, in a false, misleading, derogatory, or otherwise offensive or objectionable manner, or associate us with undesirable products, services, or opinions; (vi) use any Trademark or other intellectual property belonging to us; and (vii) otherwise take any action with respect to the Website that is inconsistent with any other provision of the Terms of Use.  We may, in our sole discretion, request that you remove any link to the Website, and upon receipt of such request, you must immediately remove such link.  We reserve the right to withdraw linking permission and/or disable all links without notice and in our sole discretion.  Any unauthorized use by you of the Website, Services, Trademarks, or Content terminates the limited licenses set forth in this section without prejudice to any other remedy provided under these Terms of Use or applicable law.

Your Account. 

To access the Website or Services, or some of the resources they offer, you may be asked to provide certain registration details or other information.  It is a condition of your use of the Website and Services that you (i) provide correct, current and complete information about yourself as prompted by the registration form for the Website or Services (such information being the "Registration Data") and (ii) maintain and promptly update the Registration Data to keep it correct, current and complete.  You agree that all information you provide to register or otherwise, including without limitation through any interactive features of the Website or the Services, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.  You further agree that Lowell may provide any and all notices, statements, and other communications to you through email to the email address provided in the Registration Data.

If you create, or are provided with, a user name, password or any other information as part of our security procedures, you agree to treat such information as confidential, and that you will not disclose such information to any other person or entity.  You further agree that your account is personal to you and that you will not provide any other person access to the Website or the Services, or any portions of the same, using your user name, password or other security information.  You agree to notify us immediately of any unauthorized access to or use of your user name 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. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, 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.

User Participation and Submissions.

We do not and cannot review all communications and materials posted to or created by users accessing the Website or Services, including any reviews that may be posted by users of the Website or Services for user Submissions and/or Products offered on the store, and we are not in any manner responsible for the content of these communications and materials.  You acknowledge that by providing you with the ability to view and distribute user generated content on the Website and Services, we are merely acting as a passive conduit for such distribution and are not undertaking any obligation or liability relating to any contents or activities on the Website or Services. However, we do reserve the right, without any obligation to notify you of the removal or to retain the removed content, to block or remove communications or materials that we determine to (i) be unlawful, harmful, threatening, abusive, harassing, tortious, infringing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or is racially, ethnically or otherwise objectionable; (ii) create a risk of harm, loss, or damage to any person or property or a risk of physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal; (iii) seek to harm or exploit minors in any way, including, but not limited to, by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) violate, or encourage any conduct that violates laws or regulations or contains any information or content that is illegal; (v) infringe any third party’s intellectual property rights, privacy rights, publicity rights, or other personal or proprietary rights or contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships or (vi) be offensive or otherwise unacceptable to us at our sole discretion.  Furthermore, it is our policy to decline unsolicited suggestions and ideas.  

Notwithstanding our policy with regard to unsolicited suggestions and ideas, any user generated content on the Website, and any inquiries, feedback, suggestions, ideas or other information you provide to us (collectively, "Submissions") will be treated as non-proprietary and non-confidential. Subject to the terms of our Privacy Policy, by transmitting or posting a Submission, you hereby grant us a non-exclusive, worldwide, royalty-free, fully paid up, perpetual, irrevocable, transferable, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, sell, assign, translate, create derivative works from, distribute and display such Submission in any form, media, or technology, whether now known or hereafter developed, alone or as part of other works.  You also acknowledge that your Submission may not be returned and we may use your Submission, and any ideas, concepts or know how contained therein, for any purpose including, without limitation, developing, manufacturing, distributing and marketing products.  If you make a Submission, you represent and warrant that you own or otherwise control the rights to your Submission. You further represent and warrant that such Submission does not constitute or contain software viruses, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead us as to the origin of any Submission.  You agree to indemnify us for all claims arising from or in connection with any claims to any rights in your Submission.

Transmission of Your Submissions. 

The term Submissions also includes registration information, business and financial information, electronic transmissions and all other data of any kind contained within emails or otherwise submitted by you or entered electronically in the course of your use of the Website or Services. You understand that the technical processing and transmission of your Submissions (including the possible transmission of Submissions outside its country of origin) may be necessary to your use of the products, services and content offered on or through the Website or Services and consent to Lowell's interception and storage of your Submissions. You understand that you or Lowell may be transmitting Submissions over the Internet, and over various networks, only part of which may be owned and operated by Lowell. You agree that Lowell is not responsible for any portions of your Submissions that are lost, altered, intercepted or stored without authorization during the transmission of Submissions across networks not owned and operated by Lowell.

Copyright Infringement Notification Process.

Lowell abides by the Federal Digital Millennium Copyright Act (the "DMCA"). If you believe that any content included on the Website or Services is your proprietary work and has been copied in a way that constitutes an infringement of your copyrights in that work, please immediately notify Lowell of any such copyright or other intellectual property rights infringement. Similarly, if you believe that any of your Submissions have been inappropriately removed, you may send a counter-notification. In either case, your written notice should be sent to our designated agent as follows:

 

DMCA Complaints

Lowell Observatory

ATTN: Communications Manager

1400 W. Mars Hill Rd. 

Flagstaff, AZ 86001

email: support@lowell.edu


 

Please also note that under the DMCA, any person who knowingly materially misrepresents that material or activity is infringing or was removed or disabled by mistake or misidentification may be subject to liability. All reports and inquiries will be kept confidential, except to the extent necessary to investigate any alleged violation and enforce the terms and conditions of these Terms of Use. Before sending either a copyright infringement notification or counter-notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with Lowell's rights and obligations under the DMCA and do not constitute legal advice. Lowell will remove the infringing content, subject to the procedures outlined in the DMCA.

 

Copyright Infringement Notification. To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):

 

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

 

3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

 

4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

 

5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

 

6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

Counter-Notification. If your Submission has been taken down, you may elect to send us a counter notice. To be effective your counter notice must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):

 

1. A physical or electronic signature of the subscriber.

 

2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

 

3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

 

4. The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

 

Your Obligations & Responsibilities. 

You may use the Website and Services only for lawful purposes and in accordance with the Terms of Use.  In the access or use of the Website or Services, you must comply with the Terms of Use and any special warnings or instructions for access or use posted on the Website or Services.  Without limiting the generality of any other provision of these Terms of Use, if you default, negligently or willfully, in any of the obligations set forth in the Terms of Use (including our Privacy Policy), you will be liable for all losses and damages that such default may cause to Lowell, our affiliates, partners or licensors.

Promotions. 

We may, at our sole option, from time to time offer Website promotions.  The terms and conditions for all promotions (if any) will be explicitly stated in the e-mail, advertisement, article or other communication to which they are associated (such as eligibility requirements, dates of availability, contents of the promotion, etc.).  For additional information related to any promotion, please contact support@lowell.edu.

Links to Third Party Sites. 

If the Website and Services contains links to other websites and resources provided by third parties, these links are provided for your convenience only.  This includes links contained in advertisements, including banner advertisements and sponsored links.  We have no control over the contents of third party sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.  If you decide to access any of the third party websites, you do so entirely at your own risk and subject to the terms and conditions and privacy policies for such websites.  

Disclaimer of Warranties. 

YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE OR SERVICES (INCLUDING WITHOUT LIMITATION THE APPS, STORE AND ANY PRODUCTS OBTAINED FROM THE STORE) IS AT YOUR OWN RISK.  WE PROVIDE THIS WEBSITE, SERVICES, THEIR RESPECTIVE CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE AND SERVICES (INCLUDING WITHOUT LIMITATION THE APPS, STORE AND ANY PRODUCTS) ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.   NEITHER LOWELL NOR ANYONE ASSOCIATED WITH LOWELL REPRESENTS OR WARRANTS THAT THE WEBSITE, THE SERVICES, THEIR RESPECTIVE CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SERVICES (INCLUDING WITHOUT LIMITATION THE APPS, STORE AND ANY PRODUCTS) WILL BE USEFUL, ACCURATE, RELIABLE, UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE, SERVICES OR THE SERVERS THAT MAKES THE WEBSITE AND SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.  WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.  THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

ALSO, WE ATTEMPT TO BE AS ACCURATE AS POSSIBLE WHEN DESCRIBING PRODUCTS; HOWEVER, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DO NOT WARRANT THAT THE PRODUCT DESCRIPTIONS, COLORS, SIZES, PRICES OR OTHER CONTENT AVAILABLE ON THIS WEBSITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE.

YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES (INCLUDING WITHOUT LIMITATION THE APPS, STORE AND ANY PRODUCTS OBTAINED FROM THE STORE) IS AT YOUR SOLE RISK. IF YOU PURCHASE ANY PRODUCTS AND/OR DOWNLOAD ANY CONTENT FROM THE WEBSITE OR SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT THROUGH THE WEBSITE OR SERVICES. WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE WEBSITE OR SERVICES OR ANY FEATURE OR PART THEREOF AT ANY TIME. WE ASSUME NO RESPONSIBILITY FOR THE DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT OR PERSONALIZATION SETTINGS.

Indemnification. 

YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS LOWELL, ITS AFFILIATES, PROVIDERS, LICENSORS AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, JUDGMENTS, AWARDS, LOSSES, COSTS, EXPENSES OR FEES (INCLUDING REASONABLE ATTORNEYS' FEES), RESULTING FROM OR RELATING TO YOUR VIOLATION OF THE TERMS OF USE OR YOUR USE OF THE WEBSITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, YOUR SUBMISSIONS, ANY USE OF THE WEBSITE'S OR SERVICE'S CONTENT, SERVICES AND PRODUCTS OTHER THAN AS EXPRESSLY AUTHORIZED IN THE TERMS OF USE OR YOUR USE OF ANY INFORMATION OBTAINED FROM THE WEBSITE OR SERVICES. YOU ALSO AGREE TO INDEMNIFY US FOR ANY LOSS, DAMAGES, OR COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, RESULTING FROM YOUR USE OF SOFTWARE ROBOTS, SPIDERS, CRAWLERS, OR SIMILAR DATA GATHERING AND EXTRACTION TOOLS, OR ANY OTHER ACTION YOU TAKE THAT IMPOSES AN UNREASONABLE BURDEN OR LOAD ON OUR INFRASTRUCTURE OR OTHERWISE ATTEMPTS TO INTERFERE WITH THE PROPER WORKING OF THE WEBSITE OR SERVICES.

Limitation of Liability. 

YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LOWELL, ITS AFFILIATES, PROVIDERS, LICENSORS AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR USE OR ACCESS OF, OR INABILITY TO USE OR ACCESS, THE WEBSITE OR SERVICES (INCLUDING WITHOUT LIMITATION THE APP, STORE AND ANY PRODUCTS OBTAINED FROM THE STORE).

 

IT IS YOUR AND OUR EXPRESS INTENT THAT LOWELL NOT BE LIABLE TO YOU FOR ANY MONETARY DAMAGES AND THAT YOUR SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT SHALL BE TERMINATION OF THE AGREEMENT.  HOWEVER, IF IT IS DETERMINED BY A COURT OF COMPETENT JURISDICTION THAT SUCH LIMITATIONS OF LIABILITY IS NOT LEGALLY ENFORCEABLE, IN NO EVENT SHALL LOWELL'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF EITHER (1) $50.00 USD OR (2) THE TOTAL YOU PAID DIRECTLY TO LOWELL FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM.

Disputes. 

Except as set forth below, ANY DISPUTE OR CLAIM ARISING UNDER THESE TERMS OF USE, INCLUDING THE PRIVACY POLICY INCORPORATED HEREIN BY REFERENCE, OR RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE OR SERVICES WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT; provided, however, that the following are exceptions to our agreement to arbitrate our disputes:

 

a)      Any claim that qualifies as a small claim in a court of limited subject matter jurisdiction must be brought in such court; and

 

b)      Any claim for injunctive relief may be brought in a court of competent jurisdiction to enjoin intellectual property infringement or misuse. 

 

You may begin an arbitration proceeding by following the American Arbitration Associations (AAAs) filing requirements and mailing a request for arbitration and description of your claim to Lowell Observatorys Communications Manager.  The AAAs Rules of Commercial Arbitration will apply (available at www.adr.org or by calling 1-800-778-7879).  The arbitrator will have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of this agreement to arbitrate.  Notwithstanding any of the foregoing, THE ARBITRATOR WILL NOT BE EMPOWERED AND DOES NOT HAVE THE AUTHORITY TO HEAR OR DECIDE ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO AWARD PUNITIVE OR EXEMPLARY DAMAGES OR TO AWARD ATTORNEYS’ FEES TO THE PREVAILING PARTY.

 

You may opt out of this agreement to arbitrate by providing written notice of your intention to do so to Lowell within 60 days of the earlier of your first use of the Website or Services or your registration with the Website or Services.

 

By using the Website or Services, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Arizona, without regard to principles of conflict of laws, will govern these Terms of Use (including the Privacy Policy incorporated herein by reference) and any dispute or claim of any sort that might arise between you and Lowell. 

Any cause of action or claim you may have arising out of or relating to the Terms of Use or the Website must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.

Termination.

We reserve the right in our sole discretion to refuse service, terminate accounts, and/or cancel any purchases if we believe your use of the Website or Services violates the Terms of Use, including any policies incorporated herein by reference, the law or is otherwise harmful to the interests of Lowell. You hereby acknowledge that your breach of these Terms of Use may result in immediate and irreparable harm to Lowell, for which there may be no adequate remedy at law, and that we will be entitled to equitable relief to compel You to cease and desist all unauthorized use, evaluation and/or disclosure of information obtained through the Website or Services.  Your breach of the Terms of Use will also entitle us to bring an action against you for any and all other remedies available at law or in equity. 

Entire Agreement. 

You acknowledge and agree that the Terms of Use, which include our Privacy Policy and Sales and Refund Policy, constitute the complete and exclusive agreement between you and Lowell concerning your use of the Website and Services, and supersede and govern all other prior or contemporaneous proposals, agreements, representations and warranties or other communications, both written and oral, with respect to the Website and Services. 

Relationship. 

Nothing contained in these Terms of Use will be construed as creating any relationship of agency, partnership, joint venture, employment, franchise or other form of joint enterprise between you and us.

Waiver. 

Our failure to require your performance of any provision of the Terms of Use will not affect our full right to require such performance at any time thereafter, nor will our waiver of a breach of any provision hereof be taken or held to be a waiver of the provision itself, now or in the future.

Assignability.

We may assign our rights and delegate our duties under these Terms of Use either in whole or in part at any time without notice. You may not assign, sublicense or otherwise transfer your rights or obligations, in whole or in part, under these Terms of Use to anyone else without our prior written consent.

Severability. 

In the event that any provision of these terms and conditions is unenforceable or invalid under any applicable law, such unenforceability or invalidity will not render these Terms of Use unenforceable or invalid as a whole.

If you have any questions regarding these Terms of Use, please contact us at:


Communications Department

Lowell Observatory

1400 W. Mars Hill Rd. 

Flagstaff, AZ 86001

928-233-3212

support@lowell.edu

 

Application and Mobile Platform Providers.

 

WITH RESPECT TO ANY MOBILE APPLICATION, EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT NO MOBILE PLATFORM PROVIDER, SUCH AS APPLE INC. ("APPLE") OR GOOGLE INC., HAS ANY OBLIGATION WHATSOEVER TO FURNISH ANY MAINTENANCE OR SUPPORT SERVICES. 

 

IN THE EVENT OF ANY FAILURE OF ANY MOBILE APPLICATION TO CONFORM TO ANY WARRANTIES SET FORTH HEREIN, YOU MAY NOTIFY APPLE, AND APPLE WILL REFUND THE PURCHASE PRICE FOR THE APPLICATION TO YOU; AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION. 

 

THE MOBILE PLATFORM PROVIDER IS NOT RESPONSIBLE FOR ANY OF YOUR CLAIMS RELATING TO THE MOBILE APPLICATION, INCLUDING WITHOUT LIMITATION, (A) PRODUCT LIABILITY CLAIMS, (B) CLAIMS THAT THE MOBILE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT, (C) CLAIMS ARISING UNDER ANY CONSUMER PROTECTION OF SIMILAR LEGISLATION, AND (D) CLAIMS THAT THE APPLICATION INFRINGES ON ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.

 

IF YOU USE ANY MOBILE APPLICATION OFFERED BY LOWELL, YOU HERETO AGREE AND ACKNOWLEDGE THAT APPLE IS A THIRD PARTY BENEFICIARY OF THESE TERMS OF USE, AND THAT, UPON YOUR ACCEPTANCE OF THESE TERMS OF USE, APPLE WILL 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 HEREOF.

IF YOU HAVE PURCHASED PRODUCTS, THE FOLLOWING ADDITIONAL PROVISIONS APPLY TO YOU:

 

Fees and Payment Provisions.

 

The fees owed to Lowell for the Products are as set forth at the time of your order (collectively, the "Fees").  Unless set forth otherwise at the time of your order, the Fees are payable in advance, irrevocable and non-refundable except as set forth in these Terms of Use.  You will provide Lowell or its designated payment processing vendor with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Lowell. If Lowell utilizes a third party payment processing vendor, then additional terms and conditions will apply to Your transactions with such vendor.

 

You agree, understand and confirm that the payment information provided by You will be correct and accurate and you are using a form of payment that You are legally authorized to use for this purpose. You agree that You are liable for any payment or credit card fraud, abuse or unauthorized use by You or others.

 

Your payment information will not be utilized and shared by us with any third parties other than our payment service unless required by law, regulation or court order.

 

You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on Lowell's net income) arising from the transactions described in these Terms of Use, even if such amounts are not identified herein.  To the extent You are exempt from sales or other taxes, You agree to provide Lowell, upon request, with the appropriate exemption certificate.