Terms of Service (February 2021)

Terms of Service)

THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN YOUR USE OF THE SUBSCRIPTION SERVICES (AS DEFINED BELOW) OF LIGHTUP DATA, INC. (“LIGHTUP”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE LIGHTUP’S SUBSCRIPTION SERVICES. BY ACCEPTING THESE TERMS BELOW OR BY USING LIGHTUP’S SUBSCRIPTION 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 SUBSCRIPTION SERVICES (“EFFECTIVE DATE”). EACH OF LIGHTUP AND CUSTOMER ARE REFERRED TO HEREIN AS A "PARTY" AND TOGETHER AS THE “PARTIES”.

​Customer understands and agrees that Lightup may change the terms of this Agreement at any time. Customer’s continued use of the Subscription Services constitutes Customer’s acceptance of any modified terms (See Section 12.13).

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 Subscription Services by Customer.

“Customer Data” means the data provided by or on behalf of Customer to the Subscription 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, but 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).

“Order Form” means an ordering document for the Subscription Services signed by both Parties and incorporating the terms of this Agreement by reference.

“Subscription Services” shall mean the online, web-based, and mobile analytics applications provided by Lightup via the Lightup website at www.lightup.ai.

2. USE OF THE SERVICES​

2.1 Use of Subscription 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 Subscription Services solely for Customer’s and its Affiliates’ internal business purposes and not for resale or further distribution. Customer’s use of the Subscription 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 Restrictions. Customer shall use the Subscription 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 Subscription Services, or use the Subscription Services for the benefit of any third party, or make the Subscription Services available to anyone other than its Authorized Users; (b) use the Subscription 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 Subscription Services, or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Subscription Services or the data contained therein; (d) modify, copy, translate, enhance, decompile, disassemble, reverse engineer or create derivative works based on the Subscription Services, or any portion thereof; (e) access or use the Subscription 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 Subscription Services; or (g) use the Subscription Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Subscription Services.

2.3 Suspension. In addition to any other remedies available, Lightup reserves the right to restrict, suspend, or terminate access to the Subscription 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 Subscription 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 Subscription Services are being used to engage in denial of service attacks, spamming, or any illegal activity, or use of Subscription 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.

2.4 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 Subscription 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 entered into an Order Form for a paid version of the Subscription Services, unless otherwise agreed in writing by the Parties, Lightup will charge Customer for its use of the Subscription 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 Subscription 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 Subscription 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 hereunder, 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 Subscription Services and Professional 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 Subscription Services in their use of the Subscription Services, such as by implementing integrations between the Subscription 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 copy and use Customer Data in a de-identified and aggregated form (“Aggregated Data”) for Lightup’s own business purposes. Aggregated Data does not directly or indirectly identify Customer, Authorized Users, or individual data subjects.

4.3 Compliance with CCPA.  In order for Lightup to provide the Subscription Services to Customer, Customer may disclose Personal Information to Lightup. The parties agree that to provide the Subscription Services to Customer, Lightup is acting as a “Service Provider” pursuant to §1798.140 of the California Consumer Privacy Act (“CCPA”).  Lightup shall not retain, use, or disclose Personal Information for any purpose other than the specific purpose of providing the Subscription Services and the Professional Services, as applicable, as set forth in this Agreement. Lightup will not sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate Personal Information to any third party for monetary or other valuable consideration. The Parties acknowledge that Customer or its Authorized Users may, through its or their use of the Subscription Services, sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate Personal Information to a third party, and such actions will not be considered a sale by Lightup. Lightup shall not retain, use or disclose Personal Information outside of the direct business relationship between Lightup and Customer. Where the CCPA applies in connection with the Subscription Services and/or the Professional Services to be provided by Lightup, Lightup certifies that it shall only process Personal Information for a business purpose as directed by Customer, and shall comply with its obligations as a service provider under CCPA. Customer is solely responsible for responding to Consumer requests using its own access to the relevant Personal Information. To the extent legally permitted, Customer shall be responsible for any costs arising from Lightup’s provision of any assistance therewith. For purposes of this Section 4.3, “Personal Information” means any Customer Data that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, as further defined in the CCPA.  For purposes of this Section 4.3, “Consumer” means a California resident, as defined in the CCPA. When and as required by applicable law from time to time, Lightup will execute supplemental privacy and security terms, including but not limited to those required under Article 28 of Regulation (EU) 2016/679 (“GDPR”), with Customer or Customer’s Affiliates that purchase Subscription Services under this Agreement. In complying with applicable data protection laws, Customer shall be solely responsible for informing Consumers that Lightup may, as a processor or service provider, process their Personal Information, and where applicable, Customer shall obtain the required consent for such processing or fulfill any other required obligations under applicable data protection law.

4.4 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.

4.5 Security. 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.

5. THIRD PARTY SERVICES

The Subscription Services include features designed to interoperate with third party products, services, and websites that Customer may elect to use with the Subscription Services (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 Subscription 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 Subscription 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. For clarity, the term Third Party Service does not include Lightup’s own subcontractors and third party service providers engaged in provision of services directly to Lightup.

6. PROFESSIONAL SERVICES

Lightup will provide technical support services and implementation services as purchased by Customer (“Professional Services”). Excluding any Customer Data incorporated therein, Lightup shall own all rights, title and interest in any Lightup Materials, including all intellectual property rights therein. Lightup grants to Customer a limited, non-exclusive, non-transferable license to use the Lightup Materials solely for Customer’s and its Affiliates’ internal business purposes in conjunction with Customer’s authorized use of the Subscription Services and in accordance with this Agreement.

7. TERM AND TERMINATION

7.1 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 Subscription Services to Customer hereunder.

7.2 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.

7.3 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), 2.4 (RESERVATION OF RIGHTS), 3 (PAYMENT), 4 (RIGHTS IN DATA), 7.3 (EFFECT OF TERMINATION), 8 (CONFIDENTIAL INFORMATION), 9 (DISCLAIMER OF WARRANTIES), 10 (LIMITATION OF LIABILITY), 11 (INDEMNITY), AND 12 (MISCELLANEOUS).

8. CONFIDENTIAL INFORMATION; FEEDBACK

8.1 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 Sections 8.1 and 8.2 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.

8.2 Use of Confidential Information. Each Party agrees as follows: (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, third party service providers 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.

8.3 Remedies.  The receiving Party acknowledges that breach of the confidentiality obligations in this Section 8 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.

8.4 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.

8.5 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. Feedback shall not be deemed Confidential Information of Customer.

9. DISCLAIMER OF WARRANTIES

EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES AND LIGHTUP MATERIALS 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. LIGHTUP DOES NOT WARRANT THAT THE SUBSCRIPTION 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.

10. LIMITATION OF LIABILITY

10.1 Limitation of Liability. IN NO EVENT SHALL LIGHTUP’S OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED UNDER THIS AGREEMENT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY CUSTOMER TO LIGHTUP DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, OR $100, WHICHEVER IS GREATER.

10.2 Exclusion of Consequential Damages. IN NO EVENT WILL LIGHTUP OR ITS LICENSORS 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. THE LIABILITIES LIMITED BY THIS SECTION 10 APPLY: (i) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, NEGLIGENCE OR OTHERWISE; (ii) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iii) EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

10.3 The provisions of this Section 10 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.

11. INDEMNITY

Customer shall defend, indemnify and hold harmless Lightup and its officers, agents, employees, representatives, and assigns, from any and all fines, sanctions, claims, losses, liabilities, damages, costs and expenses, including third-party claims, demands, reasonable attorneys’ fees, consultants’ fees and court costs (collectively, “Claims”) to the extent that such Claims arise from, or may be in any way attributable to (i) Customer’s violation or breach of this Agreement; (ii) Customer’s violation of any rights of a third party through its use of the Subscription Services; or (iii) any failure by Customer to comply with applicable data protection legislation. Customer acknowledges that Claims include any claim or action brought by a Consumer or regulatory authority arising from Customer’s breach of its obligations under applicable data protection laws.

12. MISCELLANEOUS

12.1 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 Subscription 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.

12.2 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.

12.3 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.

12.4 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.

12.5 Export Compliance. The Subscription 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 Subscription Services in violation of any U.S. export law or regulation.

12.6 Government Contractors. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Subscription 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 Subscription Services are licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.

12.7 Severability and Waiver.  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 waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the waiver is to be asserted.

12.8 Headings. In this Agreement headings are inserted for convenience only and shall not affect the meaning of the text and references to the singular include the plural and vice versa.

12.9 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.

12.10 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.

12.11 Notices. Lightup may give general notices related to the Subscription Services that are applicable to all customers by email or through the Subscription 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 Subscription Services.

12.12 Entire Agreement. This Agreement, together with the applicable Order Form and the privacy policy and cookie policy posted on the Subscription Services, 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.

12.13 Modification. Lightup reserves the right, at its sole discretion, to modify, discontinue or terminate the terms of this Agreement, at any time and without prior notice. If Lightup modifies the terms of this Agreement, Lightup will provide notice of the modification by email or by posting on the Subscription Services and will indicate the effective date of the update at the top of the Agreement. By continuing to access or use the Subscription Services after Lightup has provided notice or posted a modification on the Subscription Services, Customer indicates its agreement to be bound by the modified Agreement. If the modified Agreement is not acceptable to Customer, Customer must cease using the Subscription Services. Except as set forth in this Section 12.13, no modification or amendment of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification or amendment is to be asserted.

13. QUESTIONS

If you have any questions concerning this Agreement or our Subscription Services, please contact us at support@lightup.ai.