Lightup Terms of Service

v1.1 Last updated AUGUST 16, 2023 (Previous Terms of Service)

THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN YOUR USE OF LIGHTUP PRODUCTS AND SERVICES (AS DEFINED BELOW) OF LIGHTUP DATA, INC. (“LIGHTUP”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE LIGHTUP PRODUCTS AND SERVICES. BY ACCEPTING THESE TERMS BELOW OR BY USING THE LIGHTUP PRODUCTS AND SERVICES IN ANY MANNER, YOU, THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY (COLLECTIVELY, “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. THIS AGREEMENT IS ENTERED INTO AS OF THE DATE YOU ACCEPT THESE TERMS OR USE THE LIGHTUP PRODUCTS AND SERVICES (“EFFECTIVE DATE”). EACH OF LIGHTUP AND CUSTOMER ARE REFERRED TO HEREIN AS A “PARTY” AND TOGETHER AS THE “PARTIES.”

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS. For purposes of this Agreement, the following capitalized terms have the meanings set forth below.

“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a Party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of the entity.

“Authorized User” means any individual provided with access to the Lightup Products and Services by Customer.

“Customer Data” means the data provided by or on behalf of Customer to the Lightup Products and Services.

“Excluded Data” means (a) information subject to heightened security requirements by law, regulation or contract (including but not limited to the Child’s Online Privacy Protection Act (COPPA), Family Educational Rights and Privacy Act (FERPA), the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Payment Card Industry Data Security Standards, and their international equivalents), including, but without limitation, health-related information, financial account numbers, debit or credit card information, magnetic stripe data, or card verification values; (b) government issued personal identifiers, including without limitation, driver’s license numbers, passport numbers, or other state issued identification numbers; (c) bio-metric identifiers, including without limitation, genetic data, iris scans, thumb or finger prints, cardiac rhythm identifiers, facial modeling data, or personal health information; (d) personally identifiable information collected from children under the age of 13 or from online services directed toward children; (e) real-time geolocation data which can track or identify an individual’s precise movements; (f) passwords, authentication/authorization credentials; (g) export-controlled information for which Customer has not obtained all required export licenses and/or government approvals; or (h) or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs).

“Lightup Products and Services” shall mean as applicable Lightup’s: (a) the online, web-based, and mobile analytics applications provided by Lightup via the Lightup website at www.lightup.ai, (b) downloadable software (“Software”), and (c) support and professional services for Lightup’s SaaS and Software products.

“Order Form” means as applicable Lightup’s online signup process or an ordering document for the Lightup Products and Services signed by both Parties and incorporating the terms of this Agreement by reference.

“Pre-commercial Features” means new features provided on an alpha test, beta test, or similar basis.

“Trial Product” means any Lightup Products and Services provided on a free, trial, evaluation, proof of concept, or similar basis.

 

2. USE OF THE SERVICES

2.1 Use of Lightup Products and Services. Subject to the terms of this Agreement, Lightup grants to Customer a limited, non-exclusive, non-transferable right to access and use, and permit its Authorized Users to access and use, the Lightup Products and Services solely for Customer’s and its Affiliates’ internal business purposes and not for resale or further distribution. Customer’s use of the Lightup Products and Services shall be limited to the capacity agreed by the parties, including without limitation in an Order Form. Customer shall be responsible for its Authorized Users’ compliance with Customer’s obligations under the terms of the Agreement.

2.2 Software License. With respect to any Order Form that includes Software, subject to the terms of this Agreement, Lightup grants to Customer a limited, personal, non-exclusive, non-transferable (except as part of a permitted assignment of this Agreement), non-sublicensable license during the subscription term of such Order Form to install, integrate and use the Software for its own internal business purposes.

2.3 Trial Products and Pre-commercial Features. From time to time, Customer may have the ability to use Trial Products or Pre-Commercial Features. Pre-Commercial Features are optional and will be identified as such so that Customer may decide whether to opt in. Either party may terminate Customer’s use of Trial Products and Pre-Commercial Features at any time for any reason.

2.4 Restrictions. Customer shall use the Lightup Products and Services only in compliance with all applicable laws, including any applicable data protection and privacy laws, and the terms of this Agreement. Customer shall not and shall not permit or authorize any third party to: (a) copy, rent, sell, lease, sublicense, distribute, assign, or otherwise transfer or encumber rights to the Lightup Products and Services, or use the Lightup Products and Services for the benefit of any third party, or make the Lightup Products and Services available to anyone other than its Authorized Users; (b) use the Lightup Products and Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or to process, send, or store Excluded Data, infringing or unlawful material, viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs; (c) circumvent or disable any digital rights management, usage rules, or other security features of the Lightup Products and Services, or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Lightup Products and Services or the data contained therein; (d) modify, copy, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works based on the Lightup Products and Services, or any portion thereof; (e) access or use the Lightup Products and Services for the purpose of building a competitive product or service or copying its features or user interface; (f) remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing in or on the Lightup Products and Services; or (g) use the Lightup Products and Services in a manner that overburdens, or that threatens their integrity, performance, or availability.

2.5 Suspension. In addition to any other remedies available, Lightup reserves the right to restrict, suspend, or terminate access to the Lightup Products and Services: (a) following ten (10) business days’ notice and opportunity to cure if Customer fails to make payment to Lightup when due, or (b) immediately if Lightup determines, in its sole discretion, that Customer is using the Lightup Products and Services in a manner that violates applicable laws or the terms of this Agreement or creates an Excess Burden on Lightup’s systems. “Excess Burden” means the Lightup Products and Services are being used to engage in denial of service attacks, spamming, or any illegal activity, or use of Lightup Products and Services is causing immediate, material and ongoing harm to Lightup or Lightup’s other customers. Lightup will promptly lift the suspension upon receipt of payment or Customer’s remedy of the triggering violation, as applicable.

2.6 Reservation of Rights. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. Except for the limited rights expressly granted to Customer in this Agreement, Lightup and its licensors retain all right, title and interest in and to the Lightup Products and Services, the underlying software, and any and all improvements, modifications and updates thereto, including all intellectual property rights therein.

 

3. PAYMENT

3.1 Billing Terms. Where the Parties have executed an Order Form for a paid version of the Lightup Products and Services, unless otherwise agreed in writing by the Parties, Lightup will charge Customer for its use of the Lightup Products and Services monthly in arrears in accordance with the pricing set forth in the applicable Order Form, and Customer agrees to pay such charges when due. Fees paid hereunder are non-refundable and shall be billed in U.S. Dollars. Except as otherwise agreed in writing by the Parties, fees due hereunder will be billed to Customer’s credit card and Customer authorizes the card issuer to pay all such amounts and authorizes Lightup (or its billing agent) to charge the credit card account until the Lightup Products and Services are terminated as set forth herein; provided that if payment is not received from the credit card issuer, Customer agrees to pay all amounts due upon demand. Customer must provide current, complete, and accurate billing and credit card information. Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which Customer shall be responsible to pay.

3.2 Taxes. Fees do not include any local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for payment of all Taxes associated with its purchase and use of the Lightup Products and Services (excluding taxes based on Lightup’s net income or property).

 

4. RIGHTS IN DATA

4.1 Customer Data Rights. Except for the limited rights expressly granted to Lightup herein, Customer retains all rights, title, and interest in and to all Customer Data, including without limitation all related intellectual property rights inherent therein. Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. Customer shall ensure that it is entitled to transfer the relevant Customer Data to Lightup so that Lightup and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. Customer grants Lightup a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute, and otherwise use the Customer Data: (a) to maintain and provide the Lightup Products and Services under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) at Customer’s direction or request, including processing initiated by Authorized Users of the Lightup Products and Services in their use of the Lightup Products and Services, such as by implementing integrations between the Lightup Products and Services and Third-Party Services (defined below); (d) as otherwise required by applicable law or to respond to lawful requests and legal processes (provided that Lightup will endeavor to notify Customer if Lightup has received a lawful request for Customer Data); and (e) to protect the rights and property of Lightup, its agents, other Lightup customers, and others, including, but not limited to, enforcing this Agreement. No rights to the Customer Data are granted to Lightup hereunder other than as expressly set forth in this Agreement.

4.2 Aggregated Data. Lightup may use Customer Data in a de-identified and aggregated form (“Aggregated Data”) for Lightup’s own business purposes, including use, duplication, modification, and creation of derivative works regarding usage and performance of the Lightup Products and Services. Aggregated Data does not directly or indirectly identify Customer, Authorized Users, or individual data subjects. Lightup shall own all right, title, and interest to the Aggregated Data and any derivative works thereof.

4.3 Customer Data Deletion. Upon cessation or termination of Lightup’s relationship with Customer, Lightup has no obligation to maintain or provide any Customer Data and within a reasonable time following termination is entitled to delete or destroy Customer Data no longer in active use unless prohibited by law.

 

5. THIRD-PARTY SERVICES

The Lightup Products and Services include features designed to interoperate with third-party products, services, and websites (collectively, “Third-Party Services”). To use such features, Customer may be required to obtain access to such Third-Party Services from their providers, and grant Lightup access to Customer’s account(s) on such Third-Party Services. If Customer uses a Third-Party Service with the Lightup Products and Services, Customer grants Lightup permission to allow the Third-Party Service and its provider to access Customer Data solely as required for the interoperation of the Third-Party Service with the Lightup Products and Services. Lightup does not control Third-Party Services, does not warrant or support Third-Party Services, and does not guarantee the accuracy, integrity or quality of such Third-Party Services. Lightup is not responsible or liable, directly or indirectly, for any damage or loss caused to Customer by Customer’s use of or reliance on any Third-Party Services, including without limitation any disclosure, modification, or deletion of Customer Data resulting from access by any Third-Party Service or its provider.

 

6. TERM AND TERMINATION

6.1 Term of Agreement. The Term of this Agreement shall commence on the Effective Date and continue for as long as Lightup continues to provide the Lightup Products and Services to Customer hereunder.

6.2 Termination for Cause. Either Party may terminate this Agreement for cause if the other Party: (a) fails to cure its material breach of this Agreement within thirty (30) days after receipt of written notice of such breach; or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

6.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights and licenses granted to Customer shall terminate immediately. In no event will any termination relieve Customer of its obligation to pay any fees accrued or payable to Lightup during the period prior to the effective date of termination. The following provisions will survive termination or expiration of this Agreement: Sections 2.2 (RESTRICTIONS), 2.6 (RESERVATION OF RIGHTS), 3 (PAYMENT), 4 (RIGHTS IN DATA), 6.3 (EFFECT OF TERMINATION), 7 (CONFIDENTIAL INFORMATION), 8 (DISCLAIMER OF WARRANTIES), 9 (LIMITATION OF LIABILITY), 10 (INDEMNITY), AND 11 (MISCELLANEOUS).

 

7. CONFIDENTIAL INFORMATION; FEEDBACK

7.1 Confidential Information. “Confidential Information” shall mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Notwithstanding the foregoing, the provisions of this Section 7 will not apply to information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure by disclosing Party; or (e) is independently developed by the recipient.

7.2 Use of Confidential Information. Each Party agrees: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (d) to the extent practicable, return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement, upon request of the other Party.

7.3 Remedies. The receiving Party acknowledges that breach of the confidentiality obligations in this Section 7 would cause irreparable harm to the disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the receiving Party agrees that, in addition to any other remedies available to it, the disclosing Party is entitled to seek immediate injunctive relief in the event of breach of an obligation of confidentiality by the receiving Party, and that the disclosing Party shall not be required to post a bond or show irreparable harm in order to obtain such injunctive relief.

7.4 Compelled Disclosure. The receiving Party may access and disclose Confidential Information of the disclosing Party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the receiving Party will, if lawfully permitted to do so, notify the disclosing Party prior to such access or disclosure so as to allow the disclosing Party an opportunity to seek appropriate protective measures. Receiving Party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.

7.5 Feedback. If Customer or its Authorized Users provide Lightup any suggestions, recommendations, enhancement or feature requests, or other feedback relating to Lightup’s current or future products or services (“Feedback”), Lightup shall have the right to use, disclose, reproduce, sublicense, or otherwise distribute and exploit the Feedback in any manner without restriction, provided that Lightup shall not identify Customer or any Authorized User as the source of such Feedback. Feedback shall not include Customer Data and shall not be deemed Confidential Information of Customer.

 

8. WARRANTIES

8.1 Mutual. Each of Lightup and Customer warrants that: (a) it has the legal power and authority to enter into this Agreement; (b) the person signing or accepting this Agreement on its behalf is a duly authorized representative of such party with the authority to bind such party to this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.

8.2 Lightup Warranties. Lightup further warrants that:

(a) Service Operation. The Lightup Products and Services will perform materially as described in the documentation; and

(b) Protection of Customer Data. Lightup will maintain appropriate administrative, physical, technical, and organizational controls designed to safeguard Customer Data within its possession or control from unauthorized access, use, or disclosure. These will include measures designed to: (i) store Customer Data on servers located in a physically secured location; and (ii) use firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure. To the extent applicable, Lightup’s Data Protection Agreement (available at https://lightup.ai/dpa) (“DPA”) is incorporated by reference into this Agreement.

8.3 DISCLAIMERS.

(a) EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE LIGHTUP PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LIGHTUP AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

(b) LIGHTUP DOES NOT WARRANT THAT THE LIGHTUP PRODUCTS AND SERVICES WILL OPERATE WITH THE THIRD-PARTY SERVICES SELECTED BY CUSTOMER, OR WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. LIGHTUP IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, THIRD-PARTY SERVICES AND THIRD-PARTY HOSTING SERVICE PROVIDERS.

(c) TRIAL PRODUCTS AND PRE-COMMERCIAL FEATURES ARE PROVIDED ON AN AS-IS BASIS WITHOUT WARRANTIES OF ANY KIND. LIGHTUP WILL USE REASONABLE EFFORTS TO RESOLVE SUPPORT TICKETS FOR TRIAL PRODUCTS AND PRE-COMMERCIAL FEATURES BUT DOES NOT GUARANTEE THAT REPORTED ISSUES WILL BE RESOLVED.

 

9. LIMITATION OF LIABILITY

9.1 Limitation of Liability. THE AGGREGATE LIABILITY OF EACH PARTY AND ITS RELATED PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S USE OF THE LIGHTUP PRODUCTS AND SERVICES WILL BE LIMITED TO THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO LIGHTUP DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, OR $100, WHICHEVER IS GREATER.

9.2 Exclusion of Consequential Damages. IN NO EVENT WILL EITHER PARTY OR ITS RELATED PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUES, OR GOODWILL, OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

9.3 Interpretation. Nothing in this Agreement will limit Customer’s payment obligations or either Party’s liability for misappropriation of intellectual property rights in the other Party’s products or services. The limitations herein apply: (a) regardless of the form of action, whether in contract, tort, strict product liability, negligence, or otherwise; (b) even if a Party is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (c) even if a Party’s remedies fail of their essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law. The provisions of this Section 9 allocate the risks under this Agreement between the Parties, and the Parties have relied on these limitations in determining whether to enter into this Agreement.

 

10. INDEMNIFICATION

10.1 Indemnification by Lightup.

(a) Lightup at its own expense will defend, indemnify, and hold harmless Customer, its affiliates, successors, assigns, members, shareholders, officers, directors, and agents (“Related Parties”) against all liabilities, damages, fines, judgments, settlements, costs, and expenses (including reasonable attorney’s fees and disbursements) (“Costs”) arising from or relating to claims, demands, suits, actions, or proceedings made or brought by third parties against Customer and its Related Parties (collectively, “Claims”) alleging that the Lightup Products and Services infringe such third party’s trademark or copyright arising under the laws of the United States, or that Lightup misappropriated such third party’s trade secrets in the development of the Lightup Products and Services.

(b) If the use of the Lightup Products and Services by Customer has become or, in Lightup’s opinion, is likely to become, the subject of any infringement Claim, Lightup may at its option and expense: (i) procure for Customer the right to continue using the applicable Lightup Products and Services as set forth herein; (ii) modify the Lightup Product to avoid the infringement; or (iii) if the foregoing options are not reasonably practicable, terminate this Agreement and refund TO Customer any unused pre-paid fees for periods following the termination date. This Section 10.1 states Customer’s exclusive remedy for any infringement claim.

(c) Lightup will have no liability or obligation with respect to any Claim if such Claim is caused by: (i) use of the Lightup Products and Services by Customer not in accordance with this Agreement; (ii) the combination, operation, or use of the Lightup Products and Services with other products or services where the Lightup Product would not by itself be infringing, and such combination, operation, or use is not authorized by the documentation; or (iii) Customer Data or Pre-Commercial Features.

10.2 Indemnification by Customer. Customer at its own expense will defend, indemnify and hold harmless Lightup and its Related Parties against any Costs arising from or relating to Claims alleging that Customer Data or Customer’s use of the Lightup Products and Services violates applicable laws.

10.3 Indemnification Procedure.

(a) Promptly after a party seeking indemnification learns of the existence or commencement of a Claim, the indemnified party must notify the other party of the Claim in writing. The indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by the indemnified party’s failure to give notice.

(b) The indemnifying party will at its own expense assume the defense and settlement of the Claim with counsel reasonably satisfactory to the indemnified party. The indemnified party: (i) may join in the defense and settlement of the Claim and employ counsel at its own expense, and (ii) will reasonably cooperate with the indemnifying party in the defense and settlement of the Claim.

(c) The indemnifying party may not settle any Claim without the indemnified party’s written consent unless the settlement: (i) includes a release of all Claims; (ii) contains no admission of liability or wrongdoing by the indemnified party; and (iii) imposes no obligations upon the indemnified party other than an obligation to stop using any infringing items.

(d) The indemnified party must mitigate the damages or other losses that would otherwise be recoverable from the indemnifying party, including by taking actions to reduce or limit the amount of damages and/or other losses incurred.

 

11. MISCELLANEOUS

11.1 Governing Law; Venue. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of law rules or the United Nations Convention on the International Sale of Goods, or the Uniform Computer Informational Transactions Act. The exclusive jurisdiction and venue for any claims arising out of or related to this Agreement or Customer’s use of the Lightup Products and Services is in the state and federal courts located in Santa Clara County, California, and the Parties each irrevocably agree to submit to the jurisdiction of such courts.

11.2 Assignment. Neither Party may assign this Agreement nor any of its rights or obligations hereunder without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

11.3 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots, or embargoes, such failure or delay will not be deemed to constitute a breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.

11.4 Publicity. Either Party may reference the other Party’s name and logo in lists of customers or vendors, including on each other’s respective websites. All other uses of each other’s name and any publicity shall require the prior written approval and consent of the other Party.

11.5 Export Compliance. The Lightup Products and Services, any other Lightup technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not, and shall not permit any third party to, access or use the Lightup Products and Services in violation of any U.S. export law or regulation.

11.6 Government Contractors. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Lightup Products and Services are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202–1 through 227.7202–4, as applicable, the Lightup Products and Services are licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.

11.7 Severability and Waiver; Amendments. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a Party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted.

11.8 Independent Contractors. In making and performing this Agreement, Customer and Lightup act and will act at all times as independent contractors. This Agreement will be construed or implied to create an agency, joint venture, partnership, fiduciary, or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party. Any fees, expenses or other amounts paid by Customer to Lightup hereunder shall not be considered salary for pension or wage tax purposes and neither Lightup nor its personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Customer, unless otherwise required by law.

11.9 No Third-Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

11.10 Notices. Lightup may give general notices related to the Lightup Products and Services that are applicable to all customers by email or through the Lightup Products and Services. Notices to Lightup shall be delivered to support@lightup.ai. Notices to Customer shall be delivered to Customer’s administrator(s) via email and/or via the Lightup Products and Services.

11.11 Entire Agreement. This Agreement, together with the applicable Order Form, sets forth the entire agreement and understanding between the parties with respect to its subject matter and supersedes and replaces all prior and contemporaneous oral and written agreements, discussions and understandings between the parties with respect to its subject matter. Neither Party has relied upon any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. In the event the parties have previously entered into a separate non-disclosure or confidentiality agreement, such agreement is terminated as of the Effective Date of this Agreement. In the event the parties enter into a separate non-disclosure or confidentiality agreement subsequent to the Effective Date, such separate agreement shall not modify, supplement, or supersede the terms of this Agreement unless expressly set forth in such subsequent agreement. In the event of any conflict between the terms of this Agreement and the terms set forth in an Order Form hereunder, the terms of the Order Form shall supersede and prevail. No terms or conditions set forth on any purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.

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