Terms of Service
Last updated: January 2, 2018
These LitBit Terms of Service (this “Agreement”) constitutes a legally binding agreement between LitBit, Co. (“Company”) and the legal entity you represent (“you” or “Customer”). If you use or are engaging in activities under this Agreement for a business or corporate entity (“Business”), whether as an employee or contractor, the term “you” or “Customer” includes, and the terms and conditions of this Agreement are binding on, both you as an individual as well as the Business. You represent and warrant that you have the authority to bind the Business, and that the Business has authorized you to accept the terms and conditions of this Agreement on its behalf.
Company is willing to provide Customer with the right pursuant to which it can use the Service (as defined below) on the condition that Customer accept, agree, and comply with all of the terms and conditions in this Agreement. BY CLICKING THAT YOU ACCEPT THIS AGREEMENT OR BY USING THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS YOU MUST NOT ACCESS, AND MUST ENSURE THAT YOUR EMPLOYEES AND CONTRACTORS WILL NOT ACCESS, THE SERVICE.
Company is a provider of internet (cloud) and server-based software, applications and related services. Customer desires to obtain, and Company desires to provide Customer with access to, such services, pursuant to this Agreement.
- Provision of Service. Subject to the terms and conditions of this Agreement, including Customer’s payment of all of the fees due hereunder, Company will provide Customer with access to certain services and software of Company as delivered via the Internet at the website address litbit.com, as well as Additional Services (defined below), if any (collectively, the “Service”) during the term of this Agreement. Customer may use the Service solely for its intended purpose in accordance with this Agreement.
- Restrictions. Customer may not, and will not assist or encourage any third party to (i) copy, reproduce, modify, translate, or prepare derivative works of the Service; (ii) de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service; (iii) use, evaluate or view the Service for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Service; (iv) use the Service in violation of this Agreement; (v) use the Service to violate any law or regulation, (vi) use the Service to infringe upon or misappropriate a third party’s trademark, copyright, or other intellectual property, or in a manner that may be tortious or unlawful or (vii) use the Service in a service bureau or any other manner to provide services for a third party. Customer shall not remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within the Service. If you have an intellectual property rights-related complaint regarding the Service or any person’s use of the Service, please contact Company at [email@example.com].
- Authorized User Accounts. Customer may establish accounts (“Accounts”) for Customer’s employees or independent contractors who are authorized by Customer to use the Service on behalf of Customer (“Authorized Users”). Customer will procure that the conduct of Authorized Users conforms to the terms of this Agreement, and any action or inaction by any Authorized User which, if performed by Customer, would be a breach of this Agreement, will be deemed a breach of this Agreement by Customer.
- Account Protection. Customer shall protect the confidentiality of all Account credentials, including user names and passwords. In the event that Customer or any Authorized User becomes aware that any Account or Account credential has been used without authorization or otherwise breached, Customer shall immediately (i) de-activate such Account or change the Account’s credentials and (ii) notify Company of such breach. If you believe that your account is no longer secure, then you must immediately notify us at [firstname.lastname@example.org].
- Infrastructure. Company may host the Service using its own infrastructure or it may engage a third party to host the Service on its behalf. In either case, Company will use commercially reasonable efforts to make the Service reasonably available for use by Customer.
- Support and Maintenance. Company will provide Customer with a reasonable amount of support regarding use of the Service during the term of this Agreement. Updates to the Service will be provided in Company’s discretion at no charge to Customer. Upgrades and new features may be provided at additional charge. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by Company. During such time, the Service may be unavailable. Emergency maintenance may be required at other times. Company will use commercially reasonable efforts to promptly remedy any service outage and restore the Service.
- Additional Services. From time to time the parties may agree on certain additional services to be provided by Company, which services will be described in a Statement of Work executed by both parties (“Additional Services”).
- Customer Assistance and Materials. Customer shall provide Company with all information, assistance and materials as reasonably required for Company to activate, operate and provide the Service, support and maintenance as set forth in Section 2.6, and any Additional Services pursuant to this Agreement. Customer grants to Company a non-exclusive license to use, reproduce, display and distribute such information and materials in connection with the provision of the Service for Customer.
- Technical Contact. Customer shall designate one technical contact as the responsible party for communication with Company during provision of the Service. Customer may change such contact upon written notice to Company.
- FEES AND PAYMENT
- Fees. Company may invoice, and Customer shall pay to Company: (i) for use of the Service, the fees set forth on the online order form agreed by Company and Customer during the customer sign-up process; and (ii) for any Additional Services, the fees set forth in the applicable Statement of Work. All fees are payable in United States dollars. Payment will be due within thirty (30) days after invoice date.
- Taxes. All fees are exclusive of applicable sales, excise, use, withholding, or similar taxes. Customer shall pay all such taxes either directly or to Company, as required by applicable law or regulation.
- Late Payments. If payment is not made within fifteen (15) days after the respective due date, Company may charge Customer a late fee on the unpaid balance at the lesser of one percent (1%) per month or the maximum lawful rate permitted by applicable law. Should Customer not pay amounts when due, Company may also (at its discretion and in addition to other remedies it may have) suspend Customer’s and Authorized Users’ access to the Service.
- PROPRIETARY RIGHTS; LICENSES; CONFIDENTIALITY
- Service. Company retains ownership all right, title, and interest in and to the Service and any developments, including any modifications, improvements, upgrades, derivative works of the Service, and all intellectual property rights therein and thereto, subject only to Customer’s ownership of Customer Data as set forth below.
- Feedback. To the extent that Customer provides any suggestions or feedback regarding the Service to Company, Customer agrees to assign, and hereby assigns, to Company all right, title, and interest it may have in any modifications, improvements, upgrades, derivative works of the Service based on or incorporating such suggestions or feedback.
- Customer Data. Except for the license expressly set forth in this section, nothing in this Agreement transfers any right, title, or interest in and to any data that is uploaded by Customer to the Service in connection with Customer’s use of the Service (“Customer Data”). As between the parties, Customer retains all ownership rights that Customer has in Customer Data. Customer grants to Company a non-exclusive license during the term to use such Customer Data (i) in order to provide the Service to Customer; and (ii) as necessary to monitor, improve, and support the Service. Company may use aggregated and statistical data generated from a variety of sources (including Customer Data) when operating its business, but any such use of Customer Data will be de-identified and used only in aggregated or statistical forms. Upon request by Customer, Company will provide Customer with an electronic copy of all Customer Data under Company’s control, provided that Company may charge a reasonable fee therefor.
- All Other Rights Reserved. Except for the express licenses granted herein, neither party grants any other licenses to the other party, whether express or implied.
- Confidentiality. Customer acknowledges that the Service, the terms of this Agreement, and any other proprietary or confidential information provided to Customer by Company constitutes valuable proprietary information and trade secrets of Company. Company acknowledges that the Customer Data provided to Company by Customer constitutes valuable proprietary information of Customer. For purposes of this Agreement, the above proprietary and confidential information shall be collectively referred to as “Confidential Information.” Notwithstanding the foregoing Confidential Information does not include any information that is: (i) already known by the receiving party prior to disclosure; (ii) publicly available, or becomes publicly available, through no fault of the receiving party; (iii) rightfully received by the receiving party from a third party without breach of any duty of confidentiality; or (iv) independently developed by the receiving party prior to or independent of the disclosure hereunder. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by (a) using the other party’s Confidential Information solely internally and in accordance with this Agreement; (b) by not disclosing the other party’s Confidential Information, except with the other party’s prior written permission or as required by law or judicial process; and (c) by protecting the other party’s Confidential Information using the same degree of care that such party uses to protect its own similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or threatened breach of this section.
- DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNITIES
- Warranty Disclaimer. COMPANY DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE SERVICE OR ANY SUPPORT RELATED THERETO, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING. THE SERVICE IS PROVIDED ON AN “AS IS” BASIS TO CUSTOMER.
- Limitations of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR LOST OF INFORMATION, REGARDLESS WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY FOR ALL CLAIMS UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (1) THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE ACTS OR CIRCUMSTANCES FROM WHICH SUCH LIABILITY AROSE, OR (2) $100.
- Allocation of Risk. The warranty disclaimer and limitations of liability set forth in this Agreement shall apply irrespective of any failure of essential purpose of any limited remedy. Customer and Company each acknowledge and agree that the limitation of liability provisions of this section reflect an informed, voluntary allocation between them of the risk associated with Customer’s use of the Service.
- Company Indemnity. Company shall defend Customer against any third party claim alleging that the Service, when used by Customer as authorized in this Agreement, infringes any third party copyright, and shall indemnify and hold Customer harmless from and against all damages and liabilities (including reasonable outside attorneys’ fees) awarded therein or agreed to in settlement thereof, provided that Customer gives Company prompt notice of any such claim, exclusive control over the defense or settlement thereof, and reasonable cooperation and assistance with respect thereto; and further provided, however, that the foregoing obligations shall not apply to any claims based on (a) unauthorized use of the Service, modification of the Service, use of the Service in breach of this Agreement, or use of the Service in combination with services, software or technology not provided by Company; or (b) any data uploaded or posted by Customer or an Authorized User. In the event that Company believes the Service may be subject to a claim or in the event that the Service is alleged or held to infringe, then Company may modify or substitute the potentially infringing elements, or if neither of the foregoing is reasonably practicable, terminate this Agreement and refund amounts paid for the Service not yet delivered. The foregoing states Company’s sole liability and Customer’s sole remedy for infringement or misappropriation of third party intellectual property rights by the Service.
- Customer Indemnity. Except for any third-party claims for which Company indemnifies Customer pursuant to Section 4.1, Customer shall defend Company against any third party claim arising from use of the Service by Customer and Authorized Users, and shall indemnify and hold Company harmless from and against all damages and liabilities (including reasonable outside attorneys’ fees) awarded therefor or agreed to in settlement thereof. Company will give Customer prompt notice of any such claim, exclusive control over the defense or settlement thereof, and reasonable cooperation and assistance with respect thereto.
- Term. The term of this Agreement will commence on the date on which Customer signals its acceptance of this Agreement and continues in effect until the earlier of: (a) the date Company terminates the Service, as will be communicated by Company to Customer in writing; or (b) the date this Agreement is otherwise terminated in accordance with the provisions of this Agreement.
- Termination. In the event that either party is in material breach of this Agreement, and the non-breaching party does not cure such breach within thirty (30) days following notice of such breach, then the non-breaching party may immediately terminate this Agreement by sending written notice to the breaching party. Either party may terminate this Agreement for any reason or no reason by giving written notice to the other party.
- Effect of Termination. Upon termination of this Agreement, Sections 3 (only with respect to fees accrued prior to termination), 4, 5, 3, and 7 shall survive and remain in effect.
- Publicity. Customer agrees that Company may include the name and logo of Customer on the list of customers available on Company’s website.
- Independent Contractors. In performing under this Agreement, each party is acting as an independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
- Export. Customer agrees not to export or re-export the Service or any Company software or technology, either directly or indirectly, without Company’s written consent and all required licenses from appropriate governmental agencies.
- Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including acts of God, civil unrest, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.
- Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement to its successor in interest in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its business or assets related hereto. Any assignment in contravention of this section is void.
- Governing Law and Venue. This Agreement shall be governed by the laws of the State of California, except for any conflict of laws principles thereof. Further, the parties agree that any claim or cause of action under or relating to this Agreement or the breach thereof shall be brought exclusively in the state or federal courts located in San Francisco, California, and the parties agree to submit to personal jurisdiction and venue in such courts. If Customer is located outside of the United States, except for any claims for temporary or permanent injunctive relief, any and all disputes, controversies or claims arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement by a single arbitrator appointed in accordance with said Rules. The arbitrator shall be selected by mutual agreement of the parties; or, if the parties do not mutually agree on an arbitrator, then the arbitrator shall be appointed by the American Arbitration Association. The place of arbitration shall be San Francisco, California, U.S.A. The arbitration shall be conducted in the English language. The determination of the arbitrator shall be final and binding upon the parties to the arbitration. Judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Foreign Corrupt Practice Act. In conformity with the United States Foreign Corrupt Practice Act and with Company’s established corporate policies regarding foreign business practices, Customer and its employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize payment; nor offer a gift, promise to give, or authorize the giving of anything for value for the purpose of influencing any act or decision of an official of any government or the United States Government (including a decision not to act) or inducing such an official to use his or her influence to affect any such governmental act or decision in order to assist Company or Customer in obtaining, restraining, or directing any business.
- Modification of the Service. Company reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to Customer. Company will have no liability for any change to the Service or any suspension or termination of Customer’s access to or use of the Service.
- Miscellaneous. This Agreement, including any online order forms agreed between the parties in connection herewith, constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. Any amendments to this Agreement shall only be valid if in writing and signed by both parties. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original shall be substituted and the remaining provisions of this Agreement shall remain in full force and effect. This Agreement is in the English language only, and the English language version shall control in all respects. In the event that this Agreement is translated into another language, such translation is only for convenience and shall not be binding upon the parties. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The term “including” and variations is deemed to mean “including without limitation.”