May 24, 2022
please read these terms of service (“terms”) carefully before using the service offered by lightsource labs inc. (“lightsource”). these terms are by and between lightsource and the entity on whose behalf the individual accepting this agreement accepts this agreement (“customer”), and by creating and configuring an account for use of the service, where customer clicks “i accept” and submits via lightsource’s standard online process or by executing a copy of these terms with lightsource, customer agrees to be bound by these terms (together with all order forms (defined below), the “ agreement”) to the exclusion of all other terms. if customer does not agree to all of the terms of the agreement, customer shall not use the service. if the terms of this agreement are considered an offer, acceptance is expressly limited to such TERMS.
The LightSource Services include an online platform for assessing, publishing, and sharing information relating to buyers and suppliers in the supply chain ecosystem, such as information regarding supplier availability, sending and responding request for quotes, making sourcing decisions, finding new sales and margin-improvement opportunities and other documents, information and materials uploaded, posted, imported or stored through a customers’ use of the Services (all of the foregoing, including Customer Data (as defined below), is referred to in these Terms as “Content”).
Certain functionalities included in the Services may be used by Customers (as defined below) to provide other third-party users of the Services (“Other LightSource Users”) with access to certain Content. The sharing of Content as described herein may be accomplished by sharing Content via a LightSource Profile. Customers may choose not to share certain Content with Other LightSource Users via the Services and they may elect to require approval before such Content is shared. LightSource does not (i) publish or share your Content on your behalf without your having approved such publishing or sharing, or (ii) display your Content on the Services without your permission. Section 4 of these Terms sets forth certain terms and license rights with respect to Content.
LightSource has three different types of customers depending on the LightSource Services purchased, accessed or subscribed for in connection with this Agreement:
“Free Users,” who are customers who have registered for free accounts (including users who sign up for Beta testing). The scope of Services provided to Free Users is limited to those services and access rights made available by LightSource to such Free User from time to time.
“Subscribers,” who are customers that have subscribed for paid services from LightSource in one or more Order Forms or other agreements. The scope of Services provided to Subscribers is limited to those services and access rights set forth on the applicable Order Form. In the event of any discrepancy between these Terms of Service and the terms of the Order Form, the terms of the Order Form shall govern.
"Authorized Users," are individual users who have been authorized to access the Services on behalf of a Subscriber or Free User. The scope of Services for Authorized Users is governed in the same manner and extent as the Subscriber or Free User on whose behalf such Authorized User is accessing the Services.
Free Users, Subscribers, and Authorized Users are referred to in these Terms of Service (whether they be an individual, company, business, corporation, or other entity) as Customers. LightSource and Customer are each referred to herein as a “Party” and together as the “ Parties.”
1.1. Upon mutual execution (the “Effective Date”), each Order Form shall be incorporated into and form a part of the Agreement. An “Order Form” shall mean (i) the purchase order, order form, or other ordering document entered into by the parties that incorporates this Agreement by reference; or (ii) if Customer registered for the Service through LightSource’s standard online process, the results of such online process. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on an applicable Order Form), during the Term (as defined below) LightSource grants Customer and its Authorized Users a limited, non-exclusive, non-transferable (except in accordance with Section 9.3) license to access and use the Services for Customer’s own internal business purposes in accordance with the terms of this Agreement. Additionally, LightSource may agree to provide Customer (a) certain implementation services to assist with Customer (“Implementation Services”), or (b) professional services, in each case, as agreed to between the Parties and set forth in an Order Form or separate addendum, and which shall be governed by these Terms. With respect to Subscribers, LightSource will use commercially reasonable efforts to provide the Services in accordance with LightSource’s then-current Service Level Agreement and Support Terms (the current version is set forth here). LightSource will use commercially reasonable efforts to notify Subscriber if the Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance.
1.2. LightSource reserves all rights not expressly granted in and to the Services.
1.3. As a condition of Customer’s use of and access to the Services, Customer agrees not to use the Services for any unlawful purpose or in any way that violates this Agreement. Any use of the Services in violation of this Agreement may result in, among other things, termination or suspension of Customer’s account and ability to use the Services. Customer may not engage in any of the following prohibited activities: (a) directly or indirectly, reverse engineer, decompile, disassemble, separate or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) copy, distribute, convey, or disclose any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (c) collect or harvest any personally identifiable information, including account names, from the Services; (d) modify, adapt, translate, or create derivative works based on the Services or the Software; (e) transfer, sell, lease, lend, or use the Services or any Software for cobranding, timesharing or service bureau purposes or otherwise for the benefit of a third party; (f) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services, or access any content or features of the Services through any technology or means other than those provided or authorized by the Services; (g) transmit spam, chain letters, or other unsolicited email; (h) intentionally or knowingly engage in any activity that interferes with or disrupts the Services or servers or networks connected to the Services; (i) remove, deface, obscure, or alter any proprietary notices or labels; (j) intentionally or knowingly use the Services in any manner in violation of any applicable laws; (k) attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Services; upload invalid data, viruses, worms, or other software agents through the Services; bypass the measures LightSource may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or features or enforce limitations on use of the Services or the content or features therein; (l) impersonate another person or otherwise misrepresenting Customer’s affiliation with a person or entity, conducting fraud, hiding or attempting to hide Customer’s identity; or (m) access, distribute, or use for any commercial purposes any part of the Services or any services or materials available through the Services.
1.4. The “Term” of Customer’s use of the Services shall be: (a) for Subscribers, the Order Form Term (as defined below); and (b) for Free Users, for so long as such Free User continues to use or otherwise access the Services or until LightSource discontinues Free User’s use of the Services for any reason. With respect to an Order Form, the “Order Form Term” means, except as otherwise expressly set forth in such Order Form, and except as otherwise earlier terminated in accordance with these Terms, (i) the period commencing on the effective date set forth in such Order Form and continuing for the initial term set forth therein (the “Order Form Initial Term”), and (ii) additional successive renewal terms of equal length to the Initial Order Form Term (each, a “Order Form Renewal Term”), unless either party gives notice of nonrenewal at least thirty (30) days prior to the end of the Order Form Initial Term or Order Form Renewal Term (as applicable). In the case of Subscribers, either LightSource or Subscriber may terminate this Agreement for cause if the other Party materially breaches this Agreement, and such breach remains uncured within fifteen (15) days after receipt of written notice. If Subscriber terminates this Agreement for cause in accordance with the foregoing subsection, LightSource will promptly refund to Subscriber any prepaid Fees, prorated for the unused portion of the Term. Without limiting the foregoing, LightSource may suspend or limit Subscriber’s access to or use of the Service if Subscriber’s account is more than thirty (30) days past due.
1.5. Upon the termination or expiration of this Agreement, (a) all rights and licenses granted by LightSource to Customer shall immediately cease (except as set forth in this Section 1.5) and (b) unless mutually agreed by the Parties to do otherwise, LightSource will make all Customer Data (as defined below) available to Customer for electronic retrieval for a period of thirty (30) days, after which LightSource will permanently delete stored Customer Data in LightSource’s possession or control following a written request from such Customer to do so; provided, however, LightSource may retain copies of Customer Data: (i) in order to comply with applicable law, regulation or professional standards; (ii) on servers or back-up sources if such Customer Data is deleted from local hard drives and no attempt is made to recover such Customer Data from such servers or back-up sources, and/or (iii) as set forth in Section 4.2.
1.6. Customer is entirely responsible for maintaining the confidentiality of its password and account. Furthermore, Customer is entirely responsible for any activities that occur under its account. Customer agrees to notify LightSource immediately of any known or suspected unauthorized use of its username and password or any other breach of security. Customer, and not LightSource, will be liable for any loss that Customer, LightSource and any other party may incur as a result of someone else using Customer’s username, password, or account, only in the event and to the extent that such use is either permitted by Customer or is a result of Customer’s failure to maintain the confidentiality of Customer’s password and account information. Customer may not use anyone else’s account at any time, without the written permission of the account holder. Customer’s account is unique to Customer and may not be transferred to any third party.
1.7. The LightSource Technology and the Services may be modified by LightSource in its discretion from time to time (provided that solely with respect to Subscribers, such modifications will provide reasonably comparable levels of support and functionality). With respect to Free Users, LightSource: (a) reserves the right to withdraw or amend the LightSource Technology, and any of the Services or material LightSource provides on the LightSource Technology, in its sole discretion without notice; (b) will not be liable if for any reason all or any part of the LightSource Technology is unavailable at any time or for any period; and (c) may from time to time restrict access to some parts of the LightSource Technology, or the entire LightSource Technology.
1.8. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.
2.1. Prior to using the Services, Free Users and Authorized Users must complete the account registration process by providing LightSource with current, complete, and accurate information as prompted by the applicable registration form. Free User and Authorized User agree to register only once using a single username and agree it will not (a) register on behalf of another person; (b) register under the name of another person or under a fictional name or alias; (c) choose a username that constitutes or suggests an impersonation of any other person (real or fictitious) or entity or that Free User or Authorized User is a representative of an entity when it is not, or that is offensive; (d) choose a username for the purposes of deceiving or misleading users and/or LightSource as to Free User’s or Authorized User’s true identity; or (e) choose a username that incorporates a solicitation. Free User and Authorized User agree to maintain and update any account registration information to keep it true, accurate, current and complete. If any information provided by Free User or Authorized User is untrue, inaccurate, not current, incomplete, or otherwise violates the restrictions as set forth above, LightSource has the right to terminate Free User’s or Authorized User’s account and refuse any and all current or future use of the Services.
3.1. Unless Customer is using the Services as a Free User, Customer will pay LightSource the Service Fee and the Implementation Service Fee (as described in the Order Form) and any other fees as set forth herein in accordance with the terms of this Agreement (the “Fees”). Except as otherwise specified herein or in an Order Form, payment obligations to LightSource are non-cancelable and fees paid are non-refundable. Any refunds provided hereunder will be made to the entity that paid the applicable Fees to LightSource and, if applicable, Customer will look solely to the authorized partner or reseller to recover the same. If Customer requires that a purchase order be issued prior to the issuance of any invoice or payment of any Fees, then Customer shall promptly issue all such purchase orders (and any delay in issuing such purchase orders shall not affect the due date of any payments due hereunder). LightSource will commence the Implementation Services, if any, promptly following the execution of the Order Form.
3.2. To the extent that any Order Form sets forth specific payment terms for the Fees, such terms will control over any inconsistency with this Section 3.2. Service Fees and any Implementation Service Fee shall be paid within thirty (30) days of the execution of the Order Form.
3.3. If a Subscriber believes that LightSource has billed Subscriber incorrectly, Subscriber must contact LightSource no later than 60 days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Except as otherwise specified in an Order Form between LightSource or the applicable authorized partner or reseller, unpaid amounts will be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection and may result in immediate termination or suspension of the Services. All Fees and other amounts payable under this Agreement are exclusive of taxes and similar assessments.
4.1 This Section 4 sets forth certain terms and license rights with respect to Content which LightSource requires in order to provide the Services, and which vary depending on the type of Content involved:
Content stored in Customer’s own account on the Services in a manner that is viewable by only Customer and/or its Authorized Users.
Limited Audience Content
Content that Customer decides to publish or share in a manner that Customer-designated Other LightSource Users can view.
Content that Customer decides to publish or share generally on the Services in a manner that can be viewed by more than just a specific set of Customer-designated Other LightSource Users.
4.2. Customer may request that LightSource delete Customer Data as set forth in Section 1.5. However, Customer specifically acknowledges and agrees that, to the extent that Limited Audience Content and Platform Content has previously been provided to, or copied or stored by other users, such Content may be retained by LightSource for the purpose of continuing to provide access to such Content to such users (and the licenses set forth herein will continue for so long as such access is provided). Conversely, if you have copied or stored Content that was originally provided by Other LightSource Users into your own LightSource account, LightSource will not delete your own instance of such information without your permission.
4.3. In furtherance of the foregoing, and notwithstanding anything else, Customer hereby grants LightSource the following licenses:
(a) For all Content, Customer hereby grants LightSource a license to display, perform, translate, modify (for technical purposes, for example, making sure Content is viewable on a mobile device), distribute, retain, reproduce and otherwise act with respect to such Content (collectively, “Use”), in each case to enable LightSource to provide the Services; provided that for clarity, LightSource will not publish, share or display your Content with third parties (including Other LightSource Users) except as set forth below.
(b) For Private Content, Customer also grants LightSource a license to Use such Private Content for the sole purpose of making that Private Content accessible to Customer and its Authorized Users.
(c) For Limited Audience Content, Customer grants LightSource the licenses above, as well as a license to Use such Limited Audience Content for the purpose of making that Limited Audience Content accessible to the Other LightSource Users with whom Customer has decided to share or publish such Limited Audience Content. Customer grants such Other LightSource Users a license to Use that Limited Audience Content as permitted by the functionality of the Services.
(d) For Platform Content, Customer grants LightSource the licenses above, as well as a license to Use such Platform Content for the purpose of making that Platform Content accessible to all users of the Services. Also, Customer grants all other users of the Services a license to Use that Platform Content as permitted by the functionality of the Services.
Customer agrees that the licenses granted in this Section 4.3 are royalty-free, sublicensable, irrevocable, and worldwide, and will in each case last for a period consistent with the applicable license purposes set forth above.
4.4. Customer is responsible for all Content uploaded, posted or stored through Customer’s use of the Services. LightSource is not responsible for any lost or unrecoverable Content other than as a result of LightSource’s gross negligence or willful misconduct. Although LightSource has no obligation to monitor the Content or Customer’s use of the Services, LightSource may, in its sole discretion, remove any Content, in whole or in part, or prohibit any use of the Services alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
4.5. From time to time, LightSource may provide opportunities for users to voluntarily submit feedback and ideas for improvements related to the Services. Customer agrees that (a) its feedback and expression of its ideas and/or improvements will automatically become the property of and owned by LightSource; (b) LightSource may use or redistribute Customer’s feedback and its contents for any purpose and in any way and without any restrictions, except that LightSource agrees to keep the name of the Customer associated with such feedback confidential; (c) there is no obligation for LightSource to review any feedback; (d) there is no obligation to keep any feedback confidential; and (e) LightSource shall have no obligation to Customer or contract with Customer, implied or otherwise. By providing feedback or ideas, Customer acknowledges and agrees that LightSource and its designees may create on its own or obtain many submissions that may be similar or identical to the feedback or ideas that Customer submits through the Services or other channels and means. Customer hereby waives any and all claims it may have had, may have, and/or may have in the future, that the submissions accepted, reviewed and/or used by LightSource and its designees may be similar to Customer’s feedback or ideas.
5.1. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of LightSource includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of each Customer includes non-public data about that Customer provided by that Customer to LightSource (“Customer Data”), Content, and any data or information derived from Customer’s use of the Services. For the avoidance of doubt, Customer Data shall not include Aggregated Anonymous Data (as defined below in Section 5.5) or any data, information or content uploaded by third parties other than Customer. The Receiving Party agrees to take reasonable precautions to protect such Proprietary Information, and, except to use or perform the Services or as otherwise permitted herein, not to use or divulge to any third person any such Proprietary Information; provided, however, the Receiving Party may disclose Proprietary Information to its contractors and/or agents who have a legitimate need to know the Proprietary Information and who are bound by obligations of confidentiality at least as stringent as those contained herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public through no action of the Receiving Party in violation of this Agreement, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.
5.2. The Parties hereby acknowledge and agree that any breach of or default of a Party’s obligations of confidentiality under this Agreement shall cause damage to the other Party in an amount difficult to ascertain. Accordingly, in addition to any other relief to which a Party may be entitled, the non-defaulting Party shall be entitled, without proof of actual damages, to seek any injunctive relief ordered by any court of competent jurisdiction including, but not limited to, an injunction restraining any violation of the defaulting Party’s obligations of confidentiality hereunder.
5.3.If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Proprietary Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its right to confidentiality pursuant to the terms of this Agreement; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 3, the Receiving Party remains required by law to disclose any Proprietary Information, the Receiving Party shall disclose only that portion of the Proprietary Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Proprietary Information will be afforded confidential treatment. No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party’s obligations hereunder with respect to the Proprietary Information so disclosed.
5.4. Customer shall own and retain all right, title and interest in and to its Proprietary Information, including the designs, trademarks, service marks, and logos of Customer. LightSource shall own and retain all right, title and interest in and to its Proprietary Information, including (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Implementation Services or support, (c) all intellectual property rights related to any of the foregoing, and (d) the designs, trademarks, service marks, and logos of LightSource and the Services, whether owned or licensed to LightSource.
5.5. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that LightSource shall have the right (during and after the Term hereof) to use Customer Data for its internal business purposes to improve and enhance the Services, and to generate “Aggregated Anonymous Data,” which shall mean any data submitted to, collected by, or generated by LightSource in connection with Customer’s use of the Service, including Customer Data, but only in an aggregated form that has been reasonably designed to avoid identification of Customer. For any Aggregated Anonymous Data, LightSource shall freely use, retain and make available Aggregated Anonymous Data for LightSource’s purposes of improving, testing, operating, promoting and marketing LightSource’s features, products and services (which may include compiling and generating statistical information in the form of industry-specific benchmarks, estimates, quotes, reports, analyses, performance information and other comparative metrics), and other development, diagnostic and corrective purposes in connection with the Services and LightSource’s other offerings. Any rights not expressly granted herein are deemed withheld. If Customer does not desire for LightSource to use Customer Data to create Aggregated Anonymous Data as specified in this Section 5.5, Customer may opt out of such use by sending an email to firstname.lastname@example.org; provided that, Customer acknowledges that by opting out of LightSource’s use of Customer Data to create Aggregated Anonymous Data, LightSource may restrict Customer’s ability to access and use similar data created through use of data provided by LightSource’s other customers.
5.6In addition to the foregoing, with respect to Subscribers only, LightSource will (i) maintain commercially reasonable and appropriate technical and organizational measures designed to secure Customer Data against unauthorized and unlawful loss, access or disclosure, (ii) maintain physical, electronic and procedural safeguards in compliance with applicable privacy laws, including, but not limited to: (a) the maintenance of appropriate safeguards to restrict access to Customer Data to the employees, agents, licensors or service providers of LightSource who need that information to carry out LightSource’s obligations under this Agreement; (b) procedures and practices for safe transmission or transportation of the Customer Data; and (c) the maintenance of appropriate safeguards to prevent the unauthorized access of the Customer Data.
6.1. Each Party hereby represents, covenants, and warrants that: (a) it shall be in compliance with all applicable laws and regulations during the Term in the performance of this Agreement; (b) it has the full right, power, and authority to enter into this Agreement; (c) the performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (d) this Agreement constitutes a legal, valid and binding obligation when agreed to. Customer further represents and warrants that it owns or has the necessary licenses, rights, consents, and permissions to publish and submit the Content and Customer Data. Customer further agrees that the Content and Customer Data it submits to the Services will not contain third party copyrighted material, or material that is subject to other third-party proprietary rights, unless Customer has permission from the rightful owner of the material or Customer is otherwise legally entitled to post the material and to grant LightSource all of the license rights granted herein.
6.2. Customer acknowledges that the Services are controlled and operated by LightSource from the United States. If Customer or any of its authorized users are located outside of the United States and choose to provide information to LightSource via the Services, LightSource will transfer the information, including personal information, to the United States and process it there. LightSource does not represent or warrant that the Services, or any part thereof, are appropriate or available for use in any particular jurisdiction. Customer and its authorized users are subject to United States export controls in connection with the use of the Services and/or services related thereto and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports.
6.3. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 1, THE SERVICES ARE PROVIDED “AS IS.” LIGHTSOURCE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. WITHOUT LIMITING THE FOREGOING, LIGHTSOURCE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY RESULTS OF THE USE OF THE SERVICES, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
7.1. LightSource shall indemnify, defend and hold harmless each Subscriber and each Subscriber’s officers, directors, employees, agents, permitted successors and assigns (each, a “Subscriber Indemnitee”) from and against any and all liabilities, claims, damages, losses and expenses (including reasonable attorneys’ fees) (“Claims”) incurred by Subscriber Indemnitee resulting from an action by a third party (other than an affiliate of Subscriber Indemnitee) which alleges that Subscriber’s use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from (a) access to or use of the Services in a modified form or in combination with any hardware, system, software, network, or other materials or service not provided by LightSource (to the extent that the combination is the cause of the Claims); (b) any Content, Customer Data, or other information or data provided by Customer, any Authorized User or any other third party where such is the proximate cause of the Claim; (c) any Claims related to Subscriber’s infringement of any third party intellectual property; (d) where Subscriber continues allegedly infringing activity after being notified thereof or after being informed of modifications, upgrades, replacements or enhancements made available to Subscriber by or on behalf of LightSource; or (e) where Subscriber’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be, or is believed by LightSource to be, infringing, LightSource may, at its option and expense: (a) replace or modify the Services to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Subscriber a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Subscriber’s rights hereunder and provide Subscriber a prorated refund of any prepaid, unused Fees for the Services.
7.3. The obligations of the indemnifying party under this Section 7 (the “Indemnifying Party”) shall be conditioned on the other party (the “Indemnified Party”) providing the Indemnifying Party with (i) prompt notice of any claim for which indemnification is sought (provided that a failure to provide prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent the Indemnifying Party is prejudiced by such failure), (ii) it’s the option to assume sole control of the defense of the claim and all negotiations for any settlement or compromise (provided that (A) the Indemnified Party is entitled to participate in its own defense at its sole expense, and (B) any settlement or compromise cannot obligate Indemnified Party in any manner without Indemnified Party’s prior written consent, which consent will not be unreasonably withheld), and (iii) reasonable assistance in connection with such claim (at the Indemnifying Party’s expense).
7.4. This Section 7 sets forth Subscriber’s sole remedies and LightSource’s sole liability and obligation for any actual, threatened, or alleged Claims that the Services or any subject matter of this Agreement infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.
8.1. EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 1.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, REVENUES, ANTICIPATED SALES OR SAVINGS, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE SERVICES, THIRD-PARTY PRODUCTS, THIRD-PARTY SITES, OR THIRD-PARTY CONTENT MADE AVAILABLE THROUGH THE SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 1.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE SERVICES, THIRD-PARTY PRODUCTS, THIRD-PARTY SITES, OR THIRD-PARTY CONTENT MADE AVAILABLE THROUGH THE SERVICES, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID (AND ANY AMOUNTS ACCRUED BUT NOT YET PAID) BY CUSTOMER TO LIGHTSOURCE IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.1. Survival. The following Sections of this Agreement will survive the termination or expiration of this Agreement: Section 1.5, 4, 5, 6, 7, 8, and 9.
9.2. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.3. Assignment. This Agreement is not assignable, transferable or sublicensable by either Party except with the other’s prior written consent; provided, however, that either Party may assign or transfer this Agreement: (a) to an affiliate where (i) the assignee has agreed in writing to be bound by the terms of this Agreement, (ii) the assigning Party remains liable for obligations under this Agreement if the assignee defaults on them, and (iii) the assigning Party has notified the other Party of the assignment, in writing; and (b) in the event of a merger, sale of substantially all of the stock, assets or business, or other reorganization involving the assigning Party, and the non-assigning Party’s prior written consent shall not be required in such instance with the express understanding that in cases where the assigning Party is not the surviving entity, this Agreement will bind the successor in interest to the assigning Party with respect to all obligations hereunder. Any other attempt to transfer or assign is void.
9.4. Force Majeure. In the event that either Party hereto shall be delayed or hindered or prevented from the performance of any act required hereunder, other than a payment obligation, by reason of strikes, lock-outs, labor troubles, inability to procure materials or services, failure of power, riots, insurrections, pandemics, war or other reasons of a like nature not the fault of the Party delayed in performing work or doing acts required under the terms of this Agreement, such Party shall immediately provide notice to the other Party of such delay, and performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.
9.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
9.6. Modification. LightSource may revise and update these Terms of Service from time to time in its sole discretion. All changes are effective immediately when made available on this website and will apply to all access to and use of the Services thereafter. Customer’s continued use of the Services following the posting of revised Terms of Service means that Customer accepts and agrees to the changes. Customer is encouraged to check this page from time to time so that Customer is aware of any changes, as such changes are binding on Customer.
9.7. Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind LightSource in any respect whatsoever.
9.8. Third-Party Sites. The Services may contain links to third-party advertisers, websites or services (“Third-Party Sites”). Customer acknowledges and agrees that LightSource is not responsible or liable for: (i) the availability or accuracy of such Third-Party Sites, or (ii) the content, products, or resources on or available from such Third-Party Sites. Any Third-Party Sites do not imply any endorsement by LightSource of those websites or services. If Customer decides to access any of the Third-Party Sites linked to the Services, Customer does so entirety at its own risk and subject to the terms and conditions of use for such Third-Party Sites and acknowledges sole responsibility for and assumes all risk arising from its use of any such Third-Party Sites.
9.9. Third-Party Products and Third-Party Content. In connection with the Services, Customer may purchase and have access to or use applications, integrations, software, services, systems, or other products not developed by LightSource (“ Third-Party Products”), or data/content derived from such Third-Party Products or arising out of an agreement between LightSource and such third-party (collectively, “Third-Party Content”). LightSource does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by LightSource as verified or integrated with the Services) and disclaims any and all responsibility and liability for these items and their access to or integration with the Services, including their modification, deletion, or disclosure.
9.10. No Exclusivity. Nothing in this Agreement will preclude or restrict LightSource from offering the Services to another party that may be part of the Customer’s comprehensive ecosystem, including, without limitation, existing or potential supply chain vendors, consultants, contractors, investors, lenders, borrowers, or anyone else during the Term of the Agreement or at any time thereafter.
9.11. Publicity. Customer agrees to reasonably cooperate with LightSource to serve as a reference upon request and to allow a case study to be developed about Customer’s experience (e.g. in video or text form), and LightSource shall have the right to display Customer’s logo, name, and case study on LightSource’s website as a customer of LightSource.
9.12. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Any notices to LightSource may be sent to email@example.com.
9.13. Governing Law. This Agreement shall be governed by the laws of the State of Delaware without reference to conflict of law principles. Any dispute between the Parties arising out of or related to this Agreement shall be resolved exclusively by JAMS arbitration, which shall be held in San Francisco, California or another location mutually agreed upon, and conducted in accordance with the JAMS then in effect. Judgment upon the award rendered shall be final and non-appealable and may be entered in any court having jurisdiction. The prevailing Party shall be entitled to recovery of all its reasonable attorneys’ fees from the other Party in addition to any other award of damages. CUSTOMER AND LIGHTSOURCE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
This Service Level Agreement and Support Terms (the “SLA”) sets forth the policies and procedures with respect to services (the “Service”) provided by LightSource to a customer (“Customer”) pursuant to a separate Terms of Service between LightSource and Customer (the “Agreement”).
As further described below, LightSource will use commercially reasonable efforts to: (i) provide Customer with 99.9% availability to the Service (the “Service Availability”); and (ii) provide standard support to Customer.
If the Service becomes substantially unavailable to Customer due to defects with the Service, LightSource will respond to Customer (i) within eight (8) hours from Customer’s notification to LightSource of such unavailability, if during normal business hours (Monday-Friday, 8:00am–6:00pm Pacific), or (ii) within eight (8) hours of the start of the next business day, if outside of normal business hours. The Service Availability will be measured on a monthly basis, with all hours weighted equally, but the Service Availability measurement will exclude reasonable scheduled downtime for system maintenance as well as any downtime or performance issues resulting from third party connections, services or utilities or other reason beyond LightSource’s control (including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving LightSource employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within LightSource’s possession or reasonable control, and denial of service attacks). If the Service is unavailable to Customer due to defects with the Service beyond the Service Availability metric, then, as Customer’s sole and exclusive remedy (and LightSource’s sole liability), LightSource will provide Customer a credit for the subsequent Service billing cycle as follows:
97.5% – 99.8%
95% - 97.5%
In order to receive downtime credit, Customer must notify LightSource support within seventy-two (72) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. All credits provided hereunder are nonrefundable. If Customer elects not to renew the Agreement, such that the above credit cannot be applied, Customer will have the option to receive up to one free month of Service as its sole remedy in lieu of such credit.
LightSource will provide support to customer for defects with the Service in accordance with the Service Plan selected by Customer. Any other support services are outside of the scope of this SLA and must be separately agreed in writing by Customer and LightSource. Customer may designate support contacts (“Designated Support Contacts”), and all support requests must come through the Designated Support Contacts. Customer may update the Designated Support Contacts by providing notice to LightSource.