Terms and Conditions
Master Terms and Conditions
These Master Terms and Conditions (“Terms”) constitute a legal agreement between Lytho, Inc., a Delaware corporation (“Lytho”), and the customer (each, a “Customer”) who has subscribed to use certain online functionality of Lytho’s proprietary software (the “Subscription Services”), by executing or otherwise entering into an order form acceptable to Lytho (a “Service Order”), whether such subscription was made directly with Lytho or through a reseller or agent of Lytho. Lytho is willing to make available the Subscription Services to Customer only as set forth in these Terms and each Service Order. These Terms, together with each Service Order, are collectively referred to herein as the “Agreement”.
1. ACCESS RIGHTS; SUBSCRIPTION SERVICES; OWNERSHIP
1.1 Right to Access. Subject to the Agreement and to any limitations set forth on the Site (as defined below), Lytho grants to Customer a nonexclusive, nontransferable, revocable, non-licensable limited right to access and use (the “Access Rights”) its proprietary marketing creative content management platform software as a service offering, as updated and modified from time-to-time (the “Subscription Services”) through an online web portal (the “Site”), solely for the internal business purposes of Customer, and solely during the subscription term set forth in the applicable Service Order (the “Subscription Term”), including any applicable renewal periods, or until the earlier termination of these Terms or the applicable Service Order as provided for herein.
1.2 Use Restrictions. Customer’s use of the Subscription Services is subject to the use restrictions set forth in the applicable Service Order (the “Use Restrictions”). Use Restrictions may include limitations on the number of Authorized Users (as defined herein), quantity of data storage, traffic volumes, maximum size of uploads, downloads, and disk space. Furthermore, Customer acknowledges that the Subscription Services may include access to particular functional modules of Lytho’s system, but not to other modules, as may be indicated in the applicable Service Order.
1.3 Users. The Subscription Services may be used only by those individual authorized employees and contractors identified by Customer to Lytho (“Authorized Users”). Authorized Users shall have the level of access as indicated on the Service Order.Â Lytho will grant at least one Authorized User administrative control over Customer’s account as provided by and through the administrative portal of the Site, which includes the ability to designate individuals as Authorized Users, set permissions, revoke access, and otherwise configure certain of the Customer’s settings within the Subscription Services. Customer will at all times be responsible for any breach of these Terms by any Authorized User, whether such action was authorized by Customer, and any action taken by an Authorized User in connection with the Subscription Services shall be deemed to be an action taken by Customer for purposes of compliance with these Terms. Customer shall not authorize access to or permit use of the Subscription Services by persons other than Authorized Users. Customer shall ensure that no more than one Authorized End User will have access to or will use each Authorized User login credentials, and sharing (including frequent reassignment so as to enable the sharing) of credentials is expressly prohibited. Lytho may, at any time and without any liability to Customer, suspend an end user’s access to the Subscription Services in the event Lytho reasonably believes that such end user has violated any provision of this Agreement.
1.4 Documentation. Lytho grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license during the Subscription Term to reproduce copies of the textual or graphical materials on the Site that describe the features, functions, and use of the Subscription Services made available to Customer from time-to-time (the “Documentation”), solely for use by Customer in connection with the exercise of rights granted in the Agreement for its internal, non-commercial business purposes. No right is granted to distribute, publish, modify, adapt, translate or create derivative works of the Documentation. Customer shall accurately reproduce all proprietary notices, including any copyright notices, trademark notices or confidentiality notices that are contained within any copies of the Documentation.
1.5 Hosting; Technical Requirements. During the Subscription Term, Lytho will host, operate, and maintain the infrastructure necessary to access and use the Subscription Services via the Site. Customer is responsible for procuring and operating all computer systems, software, and telecommunications services required to meet the minimum technical requirement specification necessary for Authorized Users to access and use the Subscription Services, and Customer may be unable to access or utilize some or all aspects of the Subscription Services unless such minimum technical specifications are met.
1.6 Ancillary Services. If set forth in a Service Order, Lytho will use commercially reasonable efforts to perform any ancillary services identified therein (“Ancillary Services”). All work product, results, and deliverables of any Ancillary Services (collectively, “Deliverables”), and all Intellectual Property Rights (as defined in Section 1.7 of these Terms) in each of the foregoing are the exclusive property of Lytho.
1.7 Proprietary Rights; No Implied Licenses. The Site, the Subscription Services, Documentation, Deliverables, the Analytics (as defined below), and all content and materials that are not Customer Content (as defined below) that appear on the Site and in the Subscription Services, and all improvements, modifications, derivative works or innovations made thereto (collectively, the “Lytho Materials”), are, as between the parties, the exclusive property of Lytho, even if such improvements, modifications, derivative works or innovations result from suggestions, enhancement requests, recommendations or other feedback provided by Customer. Except for the Access Rights expressly granted herein, all rights in and to all of the foregoing are reserved by Lytho. These Terms do not convey to Customer any rights of ownership or other Intellectual Property Right in, to, or under any Lytho Materials. Nothing in these Terms will be deemed to grant to Customer any right to receive a copy of any software underlying the Site or Subscription Services, in either object or source code form. Lytho shall own all Intellectual Property Rights related to any feedback, comments, or suggestions Customer or its Authorized Users provide to Lytho with respect to the Lytho Materials, and Customer hereby assigns all such Intellectual Property Rights to Lytho. As used herein “Intellectual Property Rights” means the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.
1.8 Analytics. As used herein, “Analytics” means information, data, statistics, metadata, inferences, interrelationships, and/or associations generated by or from the Subscription Services or Ancillary Services, or regarding Customer’s or its Authorized Users’ use of the Subscription Services. Lytho and its affiliates may create, collect, use and disclose Analytics in support of the provision and improvement of the Subscription Services and the Ancillary Services. Analytics will be in aggregate or anonymous form only and will not contain Customer Content.
2. CUSTOMER RESPONSIBILITIES
2.1 Access Credentials. Customer will safeguard, and ensure that all Authorized Users safeguard, the devices, computers, and networks used to access the Subscription Service and safeguard all login information, passwords, security protocols and policies through which Authorized Users access and use the Subscription Services (“Access Credentials”). Customer agrees to: (1) keep its Authorized Usersâ Access Credentials secure and confidential and not to allow any of Customer’s Authorized Users to provide their Access Credentials to anyone else, including any other employee or contractor of Customer; and (2) not permit others any third party or any other employee or contractor of Customer to use any Authorized Userâs Access Credentials. Customer will notify Lytho by immediately sending notice to firstname.lastname@example.org if it learns of or suspects any unauthorized use of any Access Credentials, known or suspected breach of security, or any other actions undertaken by its Authorized Users that may result in an adverse impact on Lytho or Customerâs computing environment. Lytho reserves the right, in its sole discretion and without liability to Customer or its Authorized Users, to take any action Lytho deems necessary or reasonable to ensure the security of the Subscription Services and Customer’s Access Credentials and account, including terminating Customer’s access or the access of any of Customerâs Authorized Users, changing passwords, or requesting additional information to authorize activities related to Customerâs account.
2.2 Representations. Customer represents and warrants that: (a) it has full power and authority to enter into the Service Order and perform its requirements and obligations set forth in these Terms; (b) the person signing the Service Order on Customer’s behalf has been duly authorized and empowered to enter into it and to these Terms; and (c) that it will perform its obligations and exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines, including, without limitation, those related to privacy and data security. Customer represents that all information Customer provides to Lytho through the Site or otherwise as part of its account registration and at any other time during or after the account registration will be true, accurate, complete, and current and that Customer will promptly update all such information as necessary such that it is, at all times, true, accurate, complete, and current.
2.3 General Restrictions on Use. Customer shall comply with all applicable laws in its use of the Subscription Services and agrees not to act outside the scope of the rights that are expressly granted by these Terms. Customer will not, and shall ensure that its Authorized Users will not, (a) make the Subscription Services available to anyone other than its Authorized Users; (b) commercially exploit, sell, resell, license, sublicense, rent, lease, or distribute the Subscription Services or include any Subscription Services or any derivative works thereof in a service bureau or outsourcing offering; (c) copy, modify, or make derivative works based upon the Subscription Services; (d) create internet âlinksâ to the Subscription Services or “frame” or “mirror” any reports contained in, or accessible from, the Subscription Services on any other website, server, wireless or Internet-based device; (e) access the Subscription Services for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes; (f) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component underlying the Subscription Services are compiled or interpreted; (g) interfere with or disrupt the integrity or performance of the Subscription Services, the Site, or the data contained therein or disrupt any servers or networks connected to the Subscription Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Subscription Services; or (h) utilize the Subscription Services in order to (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable law; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive, or tortious material, including material harmful to children or violative of third party privacy rights; or (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs or plant malware on Lythoâs computer systems, those systems of Lythoâs third party service providers or vendors, or otherwise use the Subscription Services to attempt to upload and/or distribute malware. Nothing in these Terms shall be construed to grant Customer any right to obtain or use such source code. Compliance with the restrictions set forth in this Section 2.3 is an essential basis of these Terms, and Customer agrees to reimburse Lytho for attorneysâ fees and court costs incurred in connection with any lawsuit brought by Lytho in which a court or arbitrator finds that Customer or its Authorized Users have breached any provisions of this Section 2.3.
3. CUSTOMER CONTENT
3.1 Ownership of Customer Content. The Subscription Services include the ability for the Customer to upload certain content including without limitation any text, writing, videos images, photos, audio clips, graphics information, software, code, and any other type of content (collectively, “Customer Content”). Customer controls and owns all right, title, and interest in and to Customer Content.
3.2 License to Customer Content. Customer hereby grants to Lytho a non-exclusive, royalty-free license, to access, use and copy, the Customer Content as necessary to provide and improve the Subscription Services and the Ancillary Services. Lytho shall only access Customer Content: (a) upon the express consent or request of Customer; (b) to the extent required by applicable law or regulation or judicial proceeding; (c) to the extent Lytho believes in good faith that access is reasonably necessary to protect the property or rights of Lytho, third parties; and (d) to the extent reasonably necessary to provide the Subscription Services and carry out its obligations under the Agreement.
3.3 Customer Responsibility for Customer Content. Customer is solely responsible for the Customer Content, including with respect to their accuracy and quality. Customer represents, warrants, and covenants that, during the Subscription Term, it has, and will have, the legal right and authority to provide Lytho with access to, use of, and license to the Customer Content and such access, use and license will not a cause a breach of any third-party agreement, violate any right of a third party, or any applicable law. Without limiting the generality of the foregoing, Customer represents, warrants and covenants that at all times during the Subscription Term, it will have obtained all consents reasonably necessary for Lytho to access and use the Customer Content and that the Customer Content:
a) are provided to Lytho in accordance with all applicable laws, do not otherwise violate any applicable law, and could not give rise to any civil liability;
b) will not and do not infringe any Intellectual Property Rights;
c) will not and do not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
d) will not include sensitive information of any kind, which includes but is not limited to information regarding a minor under the age of 13, sensitive financial information, sensitive medical or health information, race or ethnicity, religious beliefs, sexual orientation, precise geographic location, as well as those elements described as sensitive information in the Network Advertising Initiative Code of Conduct.
e) will not and do not include any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household;
f) will not and do not misrepresent the source of the Customer Content;
g) will not and do not misrepresent Customer’s identity in any way;
h) will not and do not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
i) will not and do not advocate or encourage any illegal activity; and
j) will not violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability.
3.4 Security of Customer Content. Lytho will implement and maintain physical, technical, and administrative safeguards that are reasonably designed to protect the security, confidentiality, and integrity of the Customer Content. Lytho shall access, use, and disclose Customer Content only as necessary to provide the Subscription Services and their related functionality and the Ancillary Services. Lytho will notify Customer if it becomes aware of any unauthorized access to, or disclosure of, the Customer Content.
3.5 Return and Deletion of Customer Content. Lytho provides for data retrieval functions of all Customer Content. It is the Customer’s responsibility to retrieve all Customer Content prior to termination of the Agreement. After termination, Lytho may permanently delete all Customer Content within 30 days after termination and shall not maintain any copy of such Customer Content. Customer agrees that Lytho has no responsibility or liability for the deletion or failure to store any Customer Content and other communications maintained or transmitted by the Subscription Services.
4. FEES AND PAYMENT
4.1 Fees. In consideration for the rights granted hereunder, Customer will pay to Lytho the amounts set forth in each Service Order (the “Fees”). Unless otherwise specified in any Service Order, all invoices issued by Lytho will be due and payable thirty (30) days after Customer’s receipt. All Fees are nonrefundable, except as expressly otherwise set forth herein, and will be paid in U.S. dollars and exclude all Taxes (as defined below). Customer shall be responsible for paying or reimbursing Lytho for any and all third-party fees associated with Lytho’s submission of any invoice to Customer or with Customerâs payment of the Fees, including without limitation any credit-card fees, wiring fees, and electronic invoicing or routing fees. Any Fees that are not paid when due are subject to interest at one percent (1.0%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
4.2 Taxes. Unless otherwise stated, the Fees do not include any applicable sales, use, value add or similar taxes, assessable by any local, state, provincial, federal or foreign jurisdiction, but excluding taxes on Lytho’s income or assets (collectively, “Taxes”). Customer is responsible, and Lytho shall have no liability, for all Taxes applicable to Customer’s purchases hereunder. Notwithstanding, Lytho may, in its sole reasonable determination, conclude it is legally required to collect and remit such Taxes to a taxing jurisdiction on behalf of Customer. In such an event, even if Lytho has already invoiced Customer for the applicable Services, Lytho may invoice Customer for such Taxes, and Customer shall pay Lytho the amount of Taxes, unless Customer provides Lytho with a valid tax exemption certificate authorized by the appropriate taxing authority. Lytho will utilize the address shown on the Service Order to determine the appropriate taxing jurisdiction. Customer will make all payments to Lytho free and clear of, and without reduction for, any Taxes.
5.1 Confidential Information. “Confidential Information” means all information and materials disclosed by or on behalf of a party (the “Disclosing Party”) to the other party (the “Receiving Party”), including without limitation business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party, whether orally or in writing, that are designated as confidential, either marked in writing where possible, or identified as such and confirmed in writing, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.Â For the avoidance of doubt, the Subscription Services constitute Confidential Information of Lytho.
5.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not permitted by these Terms, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information in connection with these Terms or the use or operation of the Subscription Services and who are under a duty of confidentiality no less restrictive than the Receiving Partyâs duty hereunder. The Receiving Party will protect the Disclosing Partyâs Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 5 and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the disclosing party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining such breach; or (ii) a decree for specific performance of the applicable provision of these Terms. Notwithstanding the termination or expiration of these Terms, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the Subscription Term and for two (2) years following the termination or expiration of these Terms.
5.3 Exceptions. The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who was not subject to an obligation of confidentiality; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under these Terms in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party, as permitted by applicable law, rules and regulations, notifies the Disclosing Party of such required disclosure in writing promptly, and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6.1 Service Level Agreement; Subscription Services Warranty.
a) The service levels applicable to the Subscription Services are set forth on Exhibit A (“Service Level Agreement”). Customer’s sole and exclusive remedy, and Lytho’s sole and exclusive obligation, for a breach of any terms contained in the Service Level Agreement is as provided therein. Customer’s right to receive any service level credit or other remedy set forth in the Service Level Agreement is conditioned upon Customer’s timely payment of all amounts due hereunder.
b) Subject to Section 6.1(a), these Terms, and the terms of the Service Order, Lytho represents, warrants, and covenants that the Subscription Services will include the functionality provided in the Documentation and perform in all material respects in accordance with the Documentation. Customer’s sole and exclusive remedy, and Lytho’s sole and exclusive liability and obligation, for a breach of the warranty in this Section 6.1(b) is that (i) Lytho shall remedy, fix, or improve the Subscription Services to cure such breach and (ii) if Lytho is not able to cure such breach within a reasonable time (not to be less than thirty (30) days from the date of written notification of the breach), then either Customer or Lytho may terminate this Agreement.
6.2 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 6.1(b), LYTHO MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE SUBSCRIPTION SERVICES, ANY ANCILLARY SERVICES, OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AS WELL AS ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Lytho shall not be responsible for ensuring and does not represent or warrant that: (i) the Subscription Services will meet Customer’s business requirements; (ii) the Subscription Services will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable; or (iii) all deficiencies in the Subscription Services can be found or corrected. Lytho will not be responsible for loss or corruption of data, in each case caused by acts within the control of Customer or any Authorized User.
7.1 Lytho shall defend or settle (at Lytho’s expense) any claim, suit or proceeding that is brought against Customer by and unaffiliated third party (each, a “Claim”) alleging that that Customer’s use of the Subscription Services in accordance with the Documentation infringes any copyright or trade secret rights of such third party and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Lytho in settlement of the Claim (including reasonable attorneys’ fees). In the event that the Subscription Services or any part thereof is likely to, in Lytho’s sole opinion, or do become the subject of a Claim, and Lytho cannot, at its option and expense, procure for Customer the right to continue using the Subscription Services or any part thereof, or modify the Subscription Services, or any part thereof, to make them non infringing, then Lytho may terminate the Service Order with notice to Customer and will provide the Customer with a refund of any pre-paid Fees for the unexpired portion of the Subscription Term. Notwithstanding the foregoing, Lytho shall have no liability for any Claim or demand arising from (i) the use or combination of the Subscription Services or any part thereof with software, hardware, or other materials not developed or authorized by Lytho if the Subscription Services or use thereof would not infringe without such combination; (ii) modification of the Subscription Services not authorized by Lytho or performed by a party other than Lytho, if the use of unmodified Subscription Services would not constitute infringement; (iii) a use of the Subscription Services by Customer or any user in a manner outside the scope of any right granted herein, not in accordance with the Documentation, or in violation of applicable laws, rules, or regulations if the claim would not have arisen but for such breach or unauthorized use; or (iv) an allegation related to Customer Content. The foregoing states Lytho’s entire liability and Customer’s exclusive remedy for any Claim or other alleged infringement of any Intellectual Property Rights. The provisions of this Section 7.1 set forth Lytho’s sole and exclusive obligations, and Customerâs sole and exclusive remedies, with respect to infringement or misappropriation of Intellectual Property Rights of any kind.
7.2 Customer shall defend or settle any Claim brought against Lytho or its affiliates, employees, officers, and directors arising from (i) an allegation that the Customer Content infringe the Intellectual Property Rights of, or have otherwise damaged, a third party; (ii) a breach by Customer of Section 3.3 (Customer Responsibility for Customer Content) and (iii) based on any failure or alleged failure of the Customer to comply with any applicable law, rule or regulation in connection with its use of the Subscription Services for Customer’s business.
7.3 The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such Claim, (b) reasonably cooperating and assisting in such defense at the indemnifying party’s expense, and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any Claim in a manner that admits guilt on the part of the indemnified party, requires any non-indemnified payment by the indemnified party, or otherwise prejudices the indemnified party, without the indemnified party’s prior written consent. Notwithstanding any other term or provision of this Section 7, the indemnifying party shall have no obligation to indemnify the indemnified party for any liabilities or expenses incurred prior to its notification of the indemnifying party of such Claim.
8. LIMITATION OF LIABILITY
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LYTHO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICE ORDER, THESE TERMS, OR PROVIDING THE SUBSCRIPTION SERVICES OR ANY ANCILLARY SERVICES, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE SERVICE ORDER UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE.Â THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
8.2 Exclusion of Consequential and Related Damages. EXCEPT FOR CUSTOMER’S BREACH OF SECTIONS 1.7 (PROPRIETARY RIGHTS; NO IMPLIED LICENSES), 2.3 (GENERAL RESTRICTIONS ON USE),OR 3.3 (CUSTOMER RESPONSIBILITY FOR CUSTOMER CONTENT) AND CUSTOMER’S OBLIGATION TO PAY FEES WHEN DUE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES. FOR THE AVOIDANCE OF DOUBT, ALL AMOUNTS, INCLUDING ANY AWARDS OF DAMAGES OR SETTLEMENT AMOUNTS THAT ARE REQUIRED TO BE PAID TO A THIRD PARTY UNDER SECTION 7 (INDEMNIFICATION), SHALL BE CONSIDERED DIRECT DAMAGES FOR PURPOSES OF THIS AGREEMENT, NOTWITHSTANDING ANY CHARACTERIZATION OF SUCH AMOUNT BY A COURT OR AGREED TO IN A SETTLEMENT AND SUCH AMOUNT SHALL NOT BE SUBJECT TO THE LIMITATION ON TYPES OF DAMAGES.
9. TERM; SUSPENSION; TERMINATION
9.1 Subscription Term.These Terms become effective between Lytho and Customer upon the date upon which authorized representatives of both parties have executed a Service Order and properly delivered it to Lytho (the “Effective Date”) and shall remain in effect until the end of the Subscription Term.
9.2 Suspension. Lytho may suspend Customer’s or any Authorized User’s Access Rights at any time in the event that (a) any payment due to Lytho from Customer is past due; (b) a reasonable threat to the technical security or technical integrity of the Subscription Services exists; provided that Lytho promptly recommences performance upon the cessation of the threat; or (c) if Lytho reasonably determines that Customer or any Authorized User has otherwise violated any term of the Agreement and provided the Customer with notice thereof and at least ten (10) business days to cure such violation. For the avoidance of doubt, Customer’s obligation to pay the Fees set forth in each Service Order shall continue in full force and effect during any such suspension.
9.3 Early Termination. These Terms and any Service Order may be terminated:
a) by Lytho if Customer fails to timely make any payment due hereunder and fails to cure such default within ten (10) business days after receiving notice in writing from Lytho of such failure;
b) by Customer as set forth in Sections 6.1(b); or
c) by either party (the “Non-breaching Party”) upon written notice containing an explanation of an alleged breach to the other party (the “Breaching Party”), if the Breaching Party breaches the Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party.
9.4 Effect of Termination; Survival. Customer’s right to access and use the Subscription Services shall terminate immediately upon the expiration or termination of the Subscription Term, and Lytho may destroy any Customer Content in its possession or control at any time thereafter. A termination of these Terms or any Service Order by Lytho pursuant to Section 9.3(a) will not relieve Customer of the obligation to pay all of the Fees set forth in each Service Order. A termination of these Terms or any Service Order by Customer pursuant to Section 9.3 will not relieve Customer of the obligation to pay all of the Fees applicable to the portion of the Subscription Term prior to the effective date of such termination. Sections 1.7 (Proprietary Rights; No Implied Licenses), 5 (Confidentiality), 5.2 (Disclaimer of Warranties), 7 (Indemnification), 8 (Limitation of Liability), 9.4 (Effect of Termination), and 10 (General) shall survive any termination or expiration of these Terms.
10.1 Marketing. Lytho may issue a press release after the Effective Date regarding Customer’s use of the Subscription Services, and Lytho may publicly refer to Customer as a customer of Lytho, including on Lytho’s website and in sales presentations, and may use Customer’s logo trademarks, trade names and similar identifying material for such purposes.
10.2 Governing Law; Jurisdiction. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of North Carolina, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Each party hereby consents to the personal jurisdiction and venue in the state and federal courts serving the City of Raleigh, North Carolina. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
10.3 Severability. If these Terms are, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.4 Waiver; Remedies. Any waiver or failure to enforce these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.5 Notices. All notices under these Terms shall be in writing and given to the other party at the address set forth in the Service Order.Â All notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service (e.g., FedEx, etc.), (iii) by first class, registered or certified mail, postage prepaid, return receipt requested, or (iv) by facsimile provided that there is confirmation of receipt. Notices may be served by email, but notices relating to breach of contract or termination of the Agreement and/or a Service Order may only be served by email if also served in writing in accordance with the notice provisions set forth in the foregoing sentence. All notices shall be effective upon receipt by the party to which notice is given. Each party may change its address for receipt of notice by giving notice of such change to the other party.
10.6 Entire Agreement. To the maximum extent permitted by applicable law, these Terms, the Service Level Agreement, and the Service Order constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of these Terms. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to the effectiveness of the Service Order except as expressly stated in these Terms. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in a Service Order or dependent upon any oral or written, public or private comments made by Lytho with respect to future functionality or features for the Subscription Services. In the event of any conflict between the provisions in these Terms and any Service Order, these Terms shall prevail unless the Service Order expressly states that it is intended to amend or modify these Terms. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation, including for the avoidance of doubt any terms or documentation Lytho is required to execute or agree to, shall be incorporated into or form any part of these Terms, and all such terms or conditions shall be null and void.
10.7 Amendment. These Terms and each Service Order may be modified or amended only by the mutual written agreement of both parties.
10.8 Subcontractors. Lytho may engage subcontractors to act on Lytho’s behalf in connection with its provision of Services, including processing Customer Content, provided that (a) such subcontractors are subject to applicable confidentiality and data security obligations that are substantially as protective as those set forth in this Agreement; and (b) Lytho is responsible for such subcontractors’ acts and omissions in relation to its obligations under this Agreement.
10.9 No Assignment. Neither party may assign, delegate, or otherwise transfer these Terms or any Service Order, or such party’s rights and obligations herein or therein, without obtaining the prior written consent of the other party, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Lytho may assign these Terms and each Service Order in their entirety in connection with a merger, acquisition, reorganization, or change of control, including without limitation a sale of all or substantially all of its assets. These Terms will be binding upon the parties and their respective successors and permitted assigns.
10.10 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
10.11 Independent Contractors. Lytho’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
10.12 Counterparts; Electronic Signatures. The Service Order may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of any Service Order delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of such Service Order.
10.13 Construction. The titles of the sections of these Terms are for convenience of reference only and are not to be considered in construing these Terms. Unless the context of these Terms clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to these Terms as a whole. Any reference in these Terms to any statute, rule, regulation or agreement, including these Terms, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time-to-time. The parties agree that these Terms shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
Service Level Agreement
1. Application Availability. Lytho shall use commercially reasonable efforts to provide an Application Availability Percentage of 99.9% (ninety-nine point nine percent), measured per calendar month (the “Reporting Period”).Â Application Availability Percentage is calculated by subtracting from 100% (one-hundred percent) of the total percentage of one-minute periods during the Reporting Period for which the Subscription Services were unavailable in accordance with this Agreement, after adjusting for Exclusions (as defined herein).
Exclusions include any one-minute periods caused by (i) maintenance to implement updates, upgrades or other modifications, (ii) unavailability caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the reasonable control of Lytho, (iii) unavailability resulting from Customer’s non-compliance with this Agreement, including, without limitation, section 1.5 (Technical Requirements), and (iv) unavailability caused by third party internet or hosting providers.
Lytho will use commercially reasonable efforts to inform Customer at least 24 (twenty-four) hours in advance of any scheduled maintenance to minimize the effect of such maintenance on the Subscription Services and as soon as practicable for any unscheduled maintenance or any known and verified unscheduled downtime.
2. Service Level Credits. Lytho shall provide credits to Customer in the amounts set forth in the table below, subject to provisions of this Agreement.
Application Availability Percentage
Service Level Credit
>=99.0 in one Reporting Period
0.0% of 1 month of Fees
Between 95.0-99.0 in one Reporting Period
5.0% of 1 month of Fees
< 95.0 in one Reporting Period
10.0% of 1 month of Fees
Furthermore, if the Application Availability Percentage falls below 95 (ninety-five) for three (3) consecutive Reporting Periods, Customer shall have the right to terminate the Agreement; such right must be exercised within ten (10) days of the end of the third such consecutive Reporting Period, or Customer shall be deemed to have waived its termination right for such consecutive Reporting Period.Â Upon effective termination, Lytho shall refund to Customer any prepaid and unamortized Fees as of such termination.
Customer requests for Service Level Credits must be made on a calendar month basis and must be submitted to email@example.com within 10 days after the end of Reporting Period to which the Customer believes a Service Level Credit is due; otherwise, Customer shall be deemed to have waived any Service Level Credit for such Reporting Period. Service Level Credits shall not be made available for periods shorter than a calendar month. All requests for Service Level Credits will be verified against Lytho system records and are subject to Lytho’s approval, based on its sole and reasonable determination. The total of all Service Level Credits applicable to or accruing to Customer shall not exceed 25 (twenty-five) percent of Fees over the past 12 Reporting Periods
The Service Level Credit and the corresponding right to terminate the Agreement described in this section shall be the sole and exclusive remedy available to Customer in the event of unavailability of the Subscription Services. In no circumstances shall the unavailability of the Subscription Services be deemed a default under the Agreement of this Service Level Agreement.
3. Subscription Services Standard Support. Lytho will use commercially reasonable efforts to provide support for the Subscription Services. Support is available via email (firstname.lastname@example.org) or via telephone, during Lytho business hours, at 1-919-678-8118.
4. Out of Scope. Lytho shall have no obligation to support or troubleshoot errors or issues caused by Customer’s information technology, third party components, Internet or telecommunications systems, or Customer’s improper use of the Subscription Services. Any advice or support provided by Lytho regarding out of scope issues is offered “as is” without any warranty. These Support and Service Levels only apply to the Subscription Services, not to other Services offered by Lytho.