Terms of Service
MASTER SERVICES AGREEMENT
Last Updated: 17/10/2019
This Lyftron Master Service Agreement (the “Agreement”) is made between Lyftron, Inc., (“Lyftron”) and each party (a “Customer”) that executes an Order Form for the Services, as defined below. Between Lyftron and each Customer the Agreement consists of these terms, each Order Form, including any exhibits, and each amendment of any of the foregoing. This Agreement is effective as of the date of Customer’s initial Order Form (the “Effective Date”). By executing the initial Order Form, Customer agrees to all the terms set forth below.
In certain cases Lyftron may provide a trial version of the Services. In that case each Customer consents to this Agreement by clicking Agree or using the Services. If Customer and Lyftron execute a subsequent agreement regarding commercial use of the Services, its terms will supersede the terms here to the extent of any conflict.
Now therefore, the parties agree as follows:
1. SERVICES AND SUPPORT
- 1.1. Services. Subject to the terms of this Agreement, Lyftron will use commercially reasonable efforts to provide to Customer the services identified on each Order Form and the technical support on Exhibit A. As used in this Agreement, the term “Services” includes the customer-facing services, implementation services, support, Software (as defined below) and any other services provided by Lyftron to Customer. As part of the registration process, Customer will identify an administrative username(s) and password(s) for Customer’s Lyftron user(s).
- 1.2. Orders by Affiliates. Customer’s Affiliates may, upon executing a new Order Form and agreeing to be bound by the provisions of this Agreement use the Services identified in that Order Form. Upon execution of an Order Form by Lyftron and the Affiliate(s), the Affiliate(s) will be bound by the provisions of this Agreement as if they were an original party hereto. “Affiliate” means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a competitor to Lyftron or in the business of developing and offering products or technologies that are substantially similar to the Services.
2.1. Confidential Information . “Confidential Information” means information provided by either party to the other under this Agreement during the Term in any form or format, including without limitation, technical, business, financial and marketing information, and descriptions of the existence or state of progress of that information. A party’s Confidential Information includes, without limitation, any and all copies, notes, analyses, compilations, studies, interpretations, and summaries of that information prepared by or for the other party. Customer agrees
(i) To hold the Lyftron Inc’s Proprietary Information in confidence and to take reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions Customer employs with respect to its own confidential materials),
(ii) Not to divulge any such Proprietary Information or any information derived therefrom to any third person,
(iii) Not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally its relationship with the Lyftron Inc,
(iv) not to copy or reverse engineer any such Proprietary Lyftron, Inc.
1 of 5 Confidential Information and (v) not to export or reexport (within the meaning of U.S. or other export control laws or regulations) any such Proprietary Information or product thereof. If Customer is an organization, then Customer also agrees that, even within Customer, Proprietary Information will be disseminated only to those employees, officers and directors with a clear and well-defined “need to know” for purposes of the business relationship between the parties. Without granting any right or license, the Lyftron Inc agrees that the foregoing shall not apply with respect to any information that Customer can document
(a) Is or becomes (through no improper action or inaction by Customer or any affiliate, agent, consultant or employee of Customer) generally available to the public, or
(b) was in its possession or known by it without restriction prior to receipt from the Lyftron Inc, or
(c) was rightfully disclosed to it by a third party without restriction, or
(d) was independently developed without use of any Proprietary Information of the Lyftron Inc. Customer may make disclosures required by law or court order provided Customer uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the Lyftron Inc to participate in the proceeding.
2.2 Purpose and Handling of Confidential Information . The party receiving Confidential Information (the “Customer”) shall not use the Confidential Information other than for the Purpose. Customer shall keep the other party’s (“Discloser”) Confidential Information in strict confidence. Customer shall only disclose Confidential Information to its employees, including its temporary workers provided by a staffing agency and independent contractors, that are under Customer’s direct supervision and control, having: (a) a need to know that information to accomplish the Purpose, and (b) agreed in writing to non-disclosure obligations at least as restrictive as those in this Agreement. Customer shall protect the Discloser’s Confidential Information with at least the same degree of care Customer uses to protect its own confidential information of like importance, but never using less than a reasonable standard of care.
2.3. Confidential Information Identification . Confidential Information entitled to protection under this Agreement may be disclosed in a tangible or intangible format and must be marked as “confidential” or with a similar legend, or if the information is disclosed solely by oral or visual means, it must be identified as confidential at the time of disclosure. Failure to mark or designate information as “Confidential Information” at the time of disclosure, shall not relieve Customer of its obligations hereunder if the nature of the information and the circumstances of disclosure are such that Customer knew or should have known the information was “Confidential Information
2.4. Exclusions . Confidential Information does not include any information that: (a) was already known through lawful means by Customer without an obligation of confidentiality before disclosure under this Agreement as evidenced by written records predating the disclosure; (b) is readily accessible to the public on or after the date of disclosure other than through Customer’s breach of this Agreement; (c) was rightfully received by Customer without restriction on disclosure from a third party entitled to make such a disclosure (except that this exception applies only after Customer receives the information from the third party); (d) was independently developed by Customer without using any of Discloser’s Confidential Information as directly evidenced by Customer’s written records; or (e) is approved for release or disclosure by written authorization of the Discloser.
2.5. Disclosure Required by Law . Customer may comply with an order from a court or other governmental body of competent jurisdiction and disclose the other party’s Confidential Information in compliance with that order only if Customer: (a) gives the Discloser prior notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the Discloser notice of such disclosure promptly after complying with that order and (b) fully cooperates with the Discloser, at the Discloser’s cost and expense, in seeking a protective order, confidential treatment, or taking other measures to oppose or limit such disclosure. Customer must not release any more of the Discloser’s Confidential Information than is, in Customer’s good faith judgment, reasonably necessary to comply with that order.
(a) Return. On the disclosing party’s request, the receiving party must return or destroy on demand all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party other than:
(a) records the receiving party has a separate legal right or obligation to retain; and
(b) copies of Confidential Information created in the ordinary course of the receiving party’s business and retained in accordance with its internal document retention and information technology policies.
(b) Customer Identification. Lyftron may identify Customer as a user of the Services and may use Customer’s name and logo in Lyftron’s customer list, press releases, blog posts, advertisements, and website.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1. Use of Software Underlying Services. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (the “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Lyftron in writing or authorized within the Services); frame, mirror or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
3.2. Appropriate Use of Services. Customer will not, and will not permit its users to:
- Post, upload, forward, or otherwise transmit any file or software code which contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Services; or
- Attempt to access any other Lyftron systems that are not part of these Services.
- Use the Services to upload, post, process, distribute, link to, publish, reproduce, or transmit any of the following, including but not limited to:
- (a) Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law; or
- (b) Any information, software or content Customer does not have the legal right to process or transmit.
3.3. Although Lyftron has no obligation to monitor Customer’s use of the Services, Lyftron may do so and may prohibit any use of the Services it believes may be in violation of the foregoing.
4. PROPRIETARY RIGHTS
4.1. Ownership Rights. Customer owns all right, title and interest in and to the Customer Data as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, and all intellectual property rights related to any of the foregoing. Lyftron owns and retains all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
4.2. Protection of Customer Data. Lyftron will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Lyftron personnel except (a) to provide the Services and to prevent or address service or technical problems, or (b) as Customer expressly permits in writing.
4.3. Removal of Customer Data. Upon termination or expiration of this Agreement, in the event Lyftron has any Customer Data, Lyftron shall delete all such Customer Data from its systems without retaining any copies thereof.
4.4. Injunction for Breach. The parties agree that damages would be an inadequate remedy in the event of a breach of Sections 3 or 4. Therefore, the parties agree that a party is entitled, in addition to any other rights and remedies otherwise available, to seek injunctive and other equitable relief in the event of a breach or threatened breach by the other party of Sections 3 or 4.
5. PAYMENT OF FEES
5.1. Calculation of Fees. Customer will pay Lyftron the applicable fees described in each Order Form (the “Fees”). The initial Fees are identified on the initial Order Form. Except as otherwise provided herein all fees are noncancelable and nonrefundable. If Customer’s use of the Services exceeds the Services capacity set forth on the Order Form(s) or otherwise requires the payment of additional fees (per the terms of this Agreement), Lyftron will invoice Customer for such additional usage and Customer agrees to pay the additional Fees in the manner provided here in.
5.2. Payment Terms. Lyftron will bill through an invoice. Full payment for invoices issued in any given month must be received by Lyftron within 30 days after the mailing date of the invoice (which may be sent by email). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Lyftron’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Lyftron hereunder. If an applicable tax authority requires Lyftron to pay any taxes that should have been payable by Customer, Lyftron will advise Customer in writing, and Customer will promptly reimburse Lyftron for the amounts paid. If Customer believes that Lyftron has billed Customer incorrectly, Customer must contact Lyftron no later than 60 days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Lyftron’s customer support department. Without limiting its other remedies, Lyftron may suspend Services for nonpayment of fees.
6. TERM AND TERMINATION
6.1. Term. This Agreement will continue from the Effective Date until the earlier of: (a) the expiration of all Services subscriptions, or (b) termination pursuant to Section 6.2 below (the “Term”). Each Services subscription will run for the subscription term specified in the applicable Order Form and will renew automatically for additional one-year periods unless a party provides notice of nonrenewal to the other party at least 30 days prior to expiration of the applicable term.
6.2. Termination for Cause. In addition to any other remedies it may have, either party may terminate this Agreement upon written notice (or without notice in the case of nonpayment), if the other party (a) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within 30 days after written notice describing the breach; or (b) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets (“Termination for Cause”). If Lyftron terminates this Agreement for Customer’s breach, Customer remains obligated to pay the balance due on Customer’s account for the remainder of the Term, computed in accordance with the applicable Order Form(s), and will be billed for such unpaid fees.
6.3. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTIES AND DISCLAIMER
7.1. Authority. Each of Lyftron and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
7.2. Services Warranty. Lyftron shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform implementation and support Services in a professional and workmanlike manner.
7.3 Lyftron Does not Warrant That the services will be uninterrupted or error free ; Nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services are provided “as is” and Lyftron disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
- 8.1. By Lyftron. Lyftron will defend or settle any claims, actions and demands brought by third parties against Customer and Customer’s subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively “Indemnified Parties”) where the third party expressly asserts that the Software: infringes such third party’s trademark or copyright arising under the laws of the United States, or Lyftron misappropriated such third party’s trade secrets in the development of the Software (collectively, “Claims”). Customer must give written notice of the Claim to Lyftron promptly after Customer becomes aware of the Claim, and Lyftron’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Lyftron, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Lyftron or combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Lyftron to be infringing, Lyftron may, at its option and expense (x) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the Services, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and provide Customer a refund of any prepaid, unused fees for the Services.
- 8.2. By Customer. Customer will indemnify, defend and hold harmless (by counsel reasonably satisfactory to Lyftron) Lyftron and its Indemnified Parties against all liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorney’s fees and disbursements) alleging that the Customer Data or its use has infringed the rights of or otherwise caused harm to a third party, or violated applicable law; provided that in any such case Lyftron gives written notice of the Claim to Customer promptly after Lyftron becomes aware of such Claim, and Customer’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice.
9. LIMITATION OF LIABILITY
- 9.1. No consequential damages. In no event shall either party or its agents and suppliers (including their directors, officers, employees, representatives, agents and suppliers) be liable for any indirect, incidental, special or consequential damages, including without limitation procurement of substitute products or services or loss of profits, revenue, data or data use, even if lyftron has been advised of the possibility of such damages. Nothing in this agreement will limit customer’s liability for misappropriation of lyftron’s intellectual property rights in the software and services.
- 9.2. Direct damages The aggregate, cumulative liability of each party (including its directors, officers, employees, representatives, agents and suppliers) under this agreement shall be limited to the fees paid or payable by customer to lyftron during the twelve month period prior to the event giving rise to any claim, or $100 if customer is using a trial of the services. The foregoing shall not limit customer’s payment obligations under section 5.
- 10.1 Notices. All notices under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to each party at its respective address provided on the initial Order Form.
- 10.2 Assignment. This Agreement may not be assigned by either party without the other party’s consent, whether by operation of law or otherwise; provided that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party. Any other purported assignment shall be void.
- 10.3 Enforceability. If any provision of this Agreement is adjudicated invalid or unenforceable, this Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of this Agreement prohibited or unenforceable in any respect.
- 10.4 No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever to any third party.
- 10.5 Integration. This Agreement is the complete statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Lyftron in lieu of or in addition to Lyftron’s Order Form, Customer’s purchase order shall be binding only as to the following terms: (a) the Services ordered and (b) the appropriately calculated fees due. Other terms shall be void.
- 10.6 Force Majeure. If the performance of this Agreement or any obligations (other than payment obligations) hereunder is prevented or interfered with by any act or condition beyond the reasonable control of a party hereto, that party upon giving prompt notice to the other party shall be excused from such performance during such occurrence.
- 10.7 Governing Law and Jurisdiction Attorney Fees. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement must be brought in the federal or state courts in the Northern District of California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.
- 10.8 Amendment Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.
This Terms of Service is effective as of May 29, 2019.
Lyftron will provide Technical Support to Customer via email 24 hours per day, all days of the week.
Customer may initiate a Helpdesk ticket 24 hours per day, seven days a week using Lyftron’s Support Form provided at support The Support Form is visible to Customer when logged in within the Lyftron interface (www.Lyftron.com).
Lyftron will use commercially reasonable efforts to provide an initial response to any Helpdesk Ticket within one hour of creation time.