This Help Lightning Agreement (the “Agreement”) is between Help Lightning, Inc., a Delaware corporation (“Help Lightning”) and the individual or organization agreeing to these terms (“you” or “Customer”). This Agreement governs access to and use of the Help Lightning software (“Software”) and services (collectively with Software herein referred to as the “Services”). By clicking “I Agree,” signing your contract for the Services or using the Services, you acknowledge that you have read and understand this Agreement, and you accept and agree to this Agreement as a Customer. If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing to this Agreement on behalf of that organization and you are warranting that you have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Services.
(b) FACILITIES AND DATA PROCESSING. Help Lightning will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against the unauthorized or unlawful access to, use, and processing of Customer Data. Customer agrees that Help Lightning may transfer, store, and process Customer Data in locations other than Customer’s country. “Customer Data” means Stored Data and Account Data. “Stored Data” means the files and structured data submitted to the Services by Customer or End Users. “Account Data” means the account and contact information submitted to the Services by Customer or End Users.
(c) MODIFICATIONS TO THE SERVICES. Help Lightning may update the Services from time to time. If Help Lightning changes the Services in a manner that materially reduces their functionality, Help Lightning will inform Customer via the email address associated with the account.
(d) SOFTWARE. Some Services allow Customer to download Help Lightning Software which may update automatically. Customer may use the Software only to access the Services. If any component of the Software is offered under an open source license, Help Lightning will make the license available to Customer and the provisions of that license may expressly override some of the terms of this Agreement.
(a) COMPLIANCE. Customer is responsible for use of the Services by its End Users. Customer and its End Users must use the Services in compliance with this Agreement. Customer will comply with laws and regulations applicable to Customer’s use of the Services, if any.
(b) CUSTOMER ADMINISTRATION OF THE SERVICES. Customer may specify End Users as “Administrators” through the dashboard. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. Help Lightning’s responsibilities do not extend to the internal management or administration of the Services. Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators’ use of the Services complies with this Agreement.
(c) UNAUTHORIZED USE & ACCESS. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. Customer will promptly notify Help Lightning of any unauthorized use of or access to the Services.
(d) RESTRICTED USES. Customer will not (i) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services or any features or functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time; (ii) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Services, including any copy thereof; (iii) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Services; (iv) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or (v) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law; or (vi) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Services.
(e) ACCEPTABLE USE. Without in any way limiting the foregoing, Customer agrees that it will not misuse the Services in any way. By way of example, Customer must not, and must not attempt to do the following: (i) probe, scan, or test the vulnerability of any system or network; (ii) breach or otherwise circumvent any security or authentication measures; (iii) access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you haven’t been invited to; (iv) interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services; (v) access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”); (vi) send unsolicited communications, promotions or advertisements, or spam; (vii) send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”; (viii) promote or advertise products or services other than your own without appropriate authorization; (ix) sell the Services or Services accounts via unauthorized channels; (x) use automated or other means to create accounts in bulk or to access the Services other than by using our official interface and/or APIs; (xi) publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred; or (xii) violate the law in any way including storing, publishing or sharing material that’s fraudulent, defamatory, misleading, or that violates the privacy or infringes the rights of others.
(f) THIRD PARTY REQUESTS.
If Customer uses any third-party service (e.g., a service that uses a Help Lightning API) with the Services, (a) Help Lightning will not be responsible for any act or omission of the third party, including the third party’s access to or use of Customer Data and (b) Help Lightning does not warrant or support any service provided by the third party.
(a) OF END USER ACCOUNTS BY HELP LIGHTNING. If an End User (i) violates this Agreement or (ii) uses the Services in a manner that Help Lightning reasonably believes will cause it liability, then Help Lightning may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Help Lightning may do so.
(b) SECURITY EMERGENCIES. Notwithstanding anything in this Agreement, if there is a Security Emergency then Help Lightning may automatically suspend use of the Services. Help Lightning will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.
(a) HELP LIGHTNING RIGHTS. Help Lightning shall retain all title, rights, and Intellectual Property Rights in and associated with the Services and any deliverable or improvements in connection with the Services. This Agreement does not grant Customer any Intellectual Property Rights in the Services or Help Lightning trademarks and brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and all similar or equivalent rights or forms of protection, in any part of the world.
(b) CUSTOMER RIGHTS. Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to Help Lightning a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data (including in coordination with trusted third parties) as may be necessary for Help Lightning to provide the Services to Customer.
(c) SUGGESTIONS. Help Lightning may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send Help Lightning or post in Help Lightning’s forums without any obligation to Customer.
From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the effective date of this Agreement and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Fees and payment terms shall be as set forth in the Sales Order between Customer and Help Lightning.
(a) TERM. The term of this Agreement (the “Term”) will remain in effect until Customer’s subscription to the Services expires or terminates, or until the Agreement is terminated.
(b) TERMINATION FOR BREACH. Either Help Lightning or Customer may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
(c) EFFECTS OF TERMINATION. If this Agreement terminates: (i) the rights granted by Help Lightning to Customer will cease immediately (except as set forth in this section); (ii) Help Lightning may provide Customer access to its account at then-current fees so that Customer may export its Stored Data; and (iii) after a commercially reasonable period of time, Help Lightning may delete any Stored Data relating to Customer’s account. The following sections will survive expiration or termination of this Agreement: 2(f) (Third Party Requests), 7 (Intellectual Property Rights), 8 (Confidentiality), 10(c) (Effects of Termination), 11 (Indemnification), 12 (Limited Warranty; Disclaimers), 13 (Limitation of Liability), 14 (Miscellaneous).
(a) BY CUSTOMER. Customer will indemnify, defend, and hold harmless Help Lightning from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Help Lightning and its affiliates regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement; or (iii) End Users’ use of the Services in violation of this Agreement.
(b) BY HELP LIGHTNING. Help Lightning will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Help Lightning’s technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Help Lightning have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not furnished by Help Lightning and (ii) any content, information, or data provided by Customer, End Users, or other third parties.
(c) POSSIBLE INFRINGEMENT. If Help Lightning believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then Help Lightning may: (i) obtain the right for Customer, at Help Lightning’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If Help Lightning does not believe the options described in this section are commercially reasonable then Help Lightning may suspend or terminate Customer’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).
(d) GENERAL. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE HELP LIGHTNING AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
(a) LIMITED WARRANTY. Help Lightning warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof, that the Services will perform substantially in accordance with the documentation and specifications agreed upon by the parties under normal use and circumstances and that the Services shall be provided in a professional and workmanlike manner.
(b) DISCLAIMERS. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR HELP LIGHTNING AND THEIR RESPECTIVE AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
(a) LIMITATION ON INDIRECT LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ANY CLAIM OF FRAUD, INTELLECTUAL PROPERTY INFRINGEMENT OR BREACH OF SECTION 8 (CONFIDENTIALITY), NEITHER CUSTOMER NOR HELP LIGHTNING AND THEIR RESPECTIVE AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(b) LIMITATION ON AMOUNT OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ANY CLAIM OF FRAUD, INTELLECTUAL PROPERTY INFRINGEMENT, OR BREACH OF SECTION 7 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO HELP LIGHTNING HEREUNDER DURING THE TWO YEARS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
(c) NO CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT AGAINST EITHER PARTY MORE THAN ONE (1) YEAR AFTER IT ACCRUES. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY.
(a) TERMS MODIFICATION. Help Lightning may revise this Agreement from time to time and the most current version will always be posted on the Help Lightning website. If a revision, in Help Lightning’s reasonable discretion, is material, Help Lightning will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Help Lightning’s blog or terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.
(b) ENTIRE AGREEMENT. This Agreement, including Customer’s invoice and order form, constitutes the entire agreement between Customer and Help Lightning with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the order form, the Agreement.
(c) GOVERNING LAW. THE AGREEMENT WILL BE GOVERNED BY DELAWARE LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
(d) SEVERABILITY. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
(e) Equitable and Other Remedies. Help Lightning and Customer acknowledge and agree that due to the unique nature of the Confidential Information of the other party, there may be no adequate remedy at law for any breach by a party with respect to the other party’s Intellectual Property Rights or Confidential Information, which may result in irreparable harm to the non-breaching Party, and therefore, that upon any such breach or threat thereof, the non-breaching party shall be entitled to seek injunctive relief as well as whatever remedies it may have at law, without the requirement to post any bond or security. Nothing contained herein shall be construed as limiting either party’s right to any other remedies at law, including without limitation the recovery of damages for breach of this Agreement.
(f) NOTICE. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Help Lightning must be sent to Legal Department , Help Lightning, Inc., 1500 First Avenue North, Birmingham, AL, 35203.
(g) WAIVER. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
(h) ASSIGNMENT. Neither Help Lightning nor Customer may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that either party may assign the Agreement to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
(i) NO AGENCY. Help Lightning and Customer are not legal partners or agents, but are independent contractors.(j) NO THIRD-PARTY BENEFICIARIES. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.
(j) FORCE MAJEURE. Except for payment obligations, neither Help Lightning nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
(k) NO THIRD-PARTY BENEFICIARIES. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.
(l) EXPORT RESTRICTIONS. The export and re-export of Customer Data via the Services may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Services may not be used in any country that is subject to an embargo by the United States and Customer must not use the Services in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Services are not provided to persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
(m) If this Agreement and/or Order involves the provision of Services where the Help Lightning will (i) act as a Controller (as that term is defined in the EU Directive) and (ii) transfer Customer Personal Information from any country in the European Economic Area or Switzerland (collectively, “EEA/CH”) to outside the EEA/CH, then the Customer and Help Lightning agree that the terms of the Model Contract Clauses (also called the Standard Contractual Clauses) adopted by the European Commission in Decision 2004/915/EC (hereinafter the “Controller Model Clauses” or the “Model Clauses”) are incorporated by reference as if set forth herein. If this Agreement and/or Order involves the cross-border transfer of Customer Personal Information from any country in the EEA/CH to outside the EEA/CH but Help Lightning will not act as a Controller, then the Customer and Help Lightning agree that the terms of the Model Contract Clauses (also called the Standard Contractual Clauses) adopted by the European Commission in Decision 2010/87/EU (hereinafter the “Processor Model Clauses” or the “Model Clauses”) are incorporated by reference as if set forth herein. Notwithstanding the foregoing, Customer and Help Lightning agree that: