Revised: April 23, 2018
1. ACCEPTANCE OF TERMS
PLEASE REVIEW THE TOU CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE LIGHTSPEED SYSTEM, YOU AGREE TO BE BOUND BY THE TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU ARE ENTERING INTO THE TOU ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE TOU, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE TOU, YOU MAY NOT ACCESS OR USE THE LIGHTSPEED SYSTEM.
You represent and warrant that you are: (i) over eighteen (18) years of age or the age of majority in your jurisdiction, whichever is greater; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Lightspeed System under the laws of your country of residence or any other applicable jurisdiction.
2. Other Agreements
3. Grant of Rights
(a) Lightspeed grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and view pages within the Platform.
(b) To the extent that the Platform provides access to any online software, applications or other similar components, Lightspeed grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use such components only in the form within the Platform.
(c) Lightspeed grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install, run and use the Mobile Apps on a mobile device that you own and control, in executable, machine-readable, object code form only.
(d) Lightspeed grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install, run and use the Smart Agents on a device that you own and control, in executable, machine-readable, object code form only.
(e) All rights granted to you under this TOU are subject to your compliance with the TOU and all Additional Terms in all material respects and may only be exercised by you for your personal, non-commercial use or internal business purposes.
4. IOS Mobile Apps
(a) If any Mobile App is downloaded by you from the iTunes App Store (each, an “iOS Mobile App”), the license in Section 3(c) with respect to such iOS Mobile App is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in the iTunes App Store Terms of Service.
(b) With respect to any iOS Mobile App, the parties acknowledge that the TOU is concluded between you and Lightspeed only, and not with Apple Inc. (“Apple”), and Apple is not responsible for iOS Mobile Apps and the contents thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to iOS Mobile Apps. Lightspeed, not Apple, is responsible for addressing any claims from you or any third party relating to iOS Mobile Apps or your possession and/or use of iOS Mobile Apps, including product liability claims, any claim that iOS Mobile Apps fail to conform to any applicable legal or regulatory requirement and claims arising under consumer protection or similar legislation. Apple and Apple’s subsidiaries are third-party beneficiaries of the TOU with respect to iOS Mobile Apps, and Apple shall have the right (and will be deemed to have accepted the right) to enforce the TOU against you as a third-party beneficiary hereof with respect to iOS Mobile Apps. Lightspeed, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim attributable to iOS Mobile Apps.
5. Third Party Software
Some components of the Lightspeed System may be provided with or have incorporated into them third-party software (“Third-Party Software”), which may include software licensed under “open source” or other licenses approved by the Open Source Initiative. All Third-Party Software are subject to their own license terms available at http://community.lightspeedsystems.com/third-party-software. If you do not agree to abide by the applicable terms for any Third-Party Software, you should not install or use the applicable components. You acknowledge and agree that: (i) Lightspeed has no proprietary interest in any Third Party Software; (ii) to the extent permitted by applicable law and notwithstanding the rest of the TOU, any Third Party Software is provided “AS IS” with all faults and neither the licensor of such Third-Party Software nor Lightspeed shall be liable for any direct, indirect, incidental, or consequential damages related to such Third Party Software or the use thereof; and (iii) such Third-Party Software may be subject to separate license restrictions and obligations set forth in the respective license agreements related to such software.
Lightspeed will use commercially reasonable efforts to provide the support services agreed to by the parties pursuant to the applicable Additional Terms. Otherwise, the TOU does not entitle you to any support for the Lightspeed System.
7. Registration; Account
(a) Lightspeed may enable you to access and browse the Lightspeed System without registering, but some features may not be accessible unless you register. In registering for the Lightspeed System, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Lightspeed System’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Lightspeed reasonably suspects that you have done so, Lightspeed may suspend or terminate your account.
(b) You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account, whether or not you authorized the particular use or user, and regardless of your knowledge of such use,. You agree to notify Lightspeed immediately of any unauthorized use of your account or password or any other similar breach of security.
(c) If your account remains inactive for three months or longer, Lightspeed reserves the right to suspend or terminate your account, with or without notice to you, and delete your Content (as defined in Section 8(a)), all without liability to you.
8. RESPONSIBILITY FOR CONTENT
(a) You acknowledge and agree that all information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Lightspeed System, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not Lightspeed, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Lightspeed System (“Your Content”), and other users of the Lightspeed System, and not Lightspeed, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Lightspeed System (“User Content”).
(b) You acknowledge and agree that Lightspeed has no obligation to pre-screen Content (including Your Content and User Content), although Lightspeed reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, Lightspeed shall have the right to remove any Content that violates the TOU or that it deems objectionable.
(c) To the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in the TOU with respect to Your Content; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of any other party.
9. RIGHTS TO CONTENT
(a) Lightspeed does not claim ownership of Your Content. However, you grant Lightspeed and its service providers a worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to provide the Lightspeed System to you. Additionally, you acknowledge and agree that Lightspeed may collect and use for any lawful purpose Your Content in aggregate form Services without identifying individual end users or you.
(b) You acknowledge and agree that the technical processing and transmission of data associated with the Lightspeed System, including Your Content, may require: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(c) Except with respect to Your Content, you acknowledge and agree that, as between you and Lightspeed, Lightspeed owns all rights, title and interest (including all intellectual property rights) in the Lightspeed System and all Content and other materials within the Lightspeed System. The Lightspeed System is protected by U.S. and international copyright, trademark, patent and other intellectual property laws and treaties. Lightspeed reserves all rights not expressly granted to you.
(d) Except with respect to Your Content, you may not: (i) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Lightspeed System, except as expressly permitted under the TOU; (ii) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Lightspeed System; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the Lightspeed System for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Lightspeed System or any products or services offered by Lightspeed; (v) rent, lease, lend, sell or sublicense the Lightspeed System or otherwise provide access to the Lightspeed System as part of a service bureau or similar fee-for-service purpose; (vi) remove or obscure any proprietary notice that appears within the Lightspeed System; or (vii) use the Lightspeed System in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
10. User CONDUCT
In connection with your access to or use of the Lightspeed System, you shall not:
(a) upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate.
(b) impersonate any person or entity, including Lightspeed personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Lightspeed System;
(d) act in a manner that negatively affects the ability of other users to access or use the Lightspeed System;
(e) take any action that imposes an unreasonable or disproportionately heavy load on the Lightspeed System or its infrastructure;
(f) interfere with or disrupt the Lightspeed System or servers or networks connected to the Lightspeed System, or disobey any requirements, procedures, policies or regulations of networks connected to the Lightspeed System;
(g) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Lightspeed System, or substantially download, reproduce or archive any portion of the Lightspeed System;
(h) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Lightspeed System, including your user account and password; or
(i) violate any applicable local, state, provincial, federal or international law or regulation.
If you elect to provide or make available to Lightspeed any suggestions, comments, ideas, improvements or other feedback relating to the Lightspeed System (“Suggestions”), Lightspeed shall be free, and you hereby grant Lightspeed a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license, to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
12. DEALINGS WITH ADvertisers and Other Third Parties
Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Lightspeed System, including payment for and delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third party. You agree that Lightspeed shall not be liable for any damage or loss of any kind incurred as a result of any such dealings.
13. LINKS and External Materials
14. MODIFICATIONS TO The Lightspeed System
Subject to any Additional Terms, Lightspeed reserves the right at any time to modify the Lightspeed System, with or without notice, and Lightspeed shall not be liable to you or any third party for any such modification; provided, Lightspeed shall provide you reasonable prior notice if such modification will materially and adversely affect the functionality of the Lightspeed System and you may terminate the TOU by providing written notice to Lightspeed promptly thereafter.
You shall indemnify, defend and hold Lightspeed and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Lightspeed Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, resulting from or arising out of: (a) Your Content; (b) your violation of the TOU, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Lightspeed System.
16. DISCLAIMER OF WARRANTIES
(a) YOUR USE OF THE LIGHTSPEED SYSTEM IS AT YOUR SOLE RISK. THE LIGHTSPEED SYSTEM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LIGHTSPEED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
(b) LIGHTSPEED PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE LIGHTSPEED SYSTEM WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE LIGHTSPEED SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE LIGHTSPEED SYSTEM WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
(c) ALL CONTENT MADE AVAILABLE THROUGH THE LIGHTSPEED SYSTEM IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION.
17. LIMITATION OF LIABILITY
(a) LIGHTSPEED PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF LIGHTSPEED PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL LIGHTSPEED PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE LIGHTSPEED SYSTEM EXCEED THE AMOUNT PAID BY YOU TO LIGHTSPEED FOR ACCESS TO THE LIGHTSPEED SYSTEM WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
(b) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(a) Subject to the Additional Terms, if you violate the TOU, all rights granted to you under the TOU shall terminate immediately, with or without notice to you.
(b) Upon termination of the TOU for any reason: (i) Lightspeed, in its sole discretion, may remove and discard Your Content; and (ii) any provision that, by its terms, is intended to survive the expiration or termination of this TOU shall survive such expiration or termination.
19. Governing Law
The TOU shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOU.
20. FORUM FOR DISPUTES
The federal and state courts of Travis County, Texas shall have exclusive jurisdiction over any disputes or legal action arising out of or relating to the TOU or the Lightspeed System.
21. Legal Compliance
You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo or designated by the U.S. Government as a “terrorist supporting” country; or (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
22. U.S. Government Entities
This section applies to access to or use of the Lightspeed System by a branch or agency of the United States Government. The Lightspeed System includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the TOU with respect to the such items, and any access to or use of the Lightspeed System by the United States Government constitutes: (a) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (b) acceptance of the rights and obligations herein.
23. NO THIRD-PARTY BENEFICIARIES
You agree that, except for Lightspeed Parties and as otherwise expressly provided in the TOU, there shall be no third-party beneficiaries to the TOU.
24. Procedure for Making Claims of Copyright Infringement
If you believe that your work has been made available through the Lightspeed System in a way that constitutes copyright infringement, please provide Lightspeed’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Lightspeed System; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Lightspeed’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
VP Global Operations
2500 Bee Cave Road, Suite 350 Austin, TX 78746
25. California Users & Residents
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
26. GENERAL PROVISIONS
The TOU (together with the Additional Terms) constitutes the entire agreement between you and Lightspeed concerning your access to and use of the Lightspeed System. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Lightspeed with respect to such subject matter. In the event of any conflict between or among the TOU and any Additional Terms to which the TOU refers, the terms and conditions of the TOU shall take precedence and govern. The TOU may not be amended by you except in a writing executed by you and an authorized representative of Lightspeed. For the purposes of the TOU, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under the TOU without the prior written consent of Lightspeed. The failure of Lightspeed to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any provision of this TOU is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOU. Any prevention of or delay in performance by Lightspeed hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.