Terms Of Service
This agreement is between LVSYS Corp, an Oregon corporation (LVSYS), and the entity or individual agreeing to these terms (Customer).
This agreement provides Customer access and usage of a web-based content management software service as specified on an LVSYS Website Order.
2. USE OF SERVICE.
a. Customer Owned Materials.
- Customer Material. All Customer provided or uploaded content, trademarks and design elements (including without limitation Customer logos and copyrighted material) remain the property of Customer, as between LVSYS and Customer (Customer Material).
- Custom Works Owned by Customer. Customer owns all copyright right, title and interest in and to any works created by LVSYS under this agreement except for any Pre-Existing Works. (Custom Works). All Custom Works are designated as ‘work made for hire’ under US Copyright law, but if for any reason such works are not work made for hire under applicable law, then LVSYS hereby transfers and assigns such works to Customer. Pre-Existing Works means any LVSYS pre-existing LVSYS works, templates and materials. LVSYS grants Customer a non-exclusive, non-transferable license to use and modify any Pre-Existing Works provided by LVSYS solely as part of the Service.
- Export of Customer Materials and Custom Works. Customer may export the ‘visual elements’ of their site, but not any code (for example, java script or CSS files). For the avoidance of doubt, Customer may not distribute, transfer or sell any Pre-Existing Works standalone or combined with other material or works.
- Right of Use by LVSYS. Customer grants LVSYS the right to use the Customer Material and Custom Work solely for purposes of performing under this agreement.
b. Contractor Access and Usage. Customer may allow its contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
c. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Material and Custom Work and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify LVSYS promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s CMS Online Manual and applicable law.
d. LVSYS Support. LVSYS must provide customer support for the Service under the terms of LVSYS’ Customer Support Policy (Support) which is located at www.lvsys.com/support and is incorporated into this agreement for all purposes.
3. SERVICE LEVEL AGREEMENT & WARRANTY.
a. Warranty. LVSYS warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding maintenance outages, outages of underlying hosting providers (for example, Amazon Cloud), force majeure, and outages that result from any Customer technology issues or Customer acts or omissions); (ii) the functionality or features of the Service may change but will not materially decrease during a paid term; and (iii) that the Support may change but will not materially degrade during any paid term.
|99%||pro-rated monthly fee for each full hour of an outage (beyond the warranty)|
Maximum amount of the credit is 100% of the fee for such month.
b. LIMITED REMEDY. The Service may be interrupted or contain an error. Customer’s exclusive remedy and LVSYS’ sole obligation for its failure to meet the warranty in a(i) above will be for LVSYS to provide a credit for the applicable month, as provided in the chart above (if this agreement is not renewed, then a refund), for the month; provided that Customer notifies LVSYS of such breach within 30 days of the end of that month.
c. DISCLAIMER. LVSYS DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE LVSYS TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURE TO SECURE THE SERVICE, LVSYS DOES NOT GUARANTY THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR-FREE, AND USE MAY BE INTERRUPTED.
Customer must pay all fees as specified on the order or invoice, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). LVSYS’ Confidential Information includes without limitation the Service, and Software and Documentation, (including without limitation the Service user interface design and layout).
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
6. LVSYS PROPERTY.
a. Reservation of Rights. The software, workflow processes, user interface, designs, know-how, Software and Documentation (defined below), and other technologies provided by LVSYS as part of the Service are the proprietary property of LVSYS and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with LVSYS. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. LVSYS reserves all rights unless expressly granted in this agreement.
b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, pornographic, nude, adult material, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service or the Software and Documentation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function or graphics for competitive purposes.
7. TERM AND TERMINATION.
a. Term. This agreement continues until all orders have terminated.
b. Immediate Termination for Interference or Unauthorized Access. If Customer interferes with or disrupts the integrity or performance of the Service, or attempts to gain unauthorized access to the Service or its related systems or networks, then LVSYS may immediately terminate the Service.
c. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 15-day notice/cure period, if the breach has not been cured.
d. Return LVSYS Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay LVSYS for any unpaid amounts, and destroy or return all property of LVSYS. Upon LVSYS’ request, Customer will confirm in writing its compliance with this destruction or return requirement.
e. Suspension of Service. LVSYS may temporarily suspend the Service or remove the applicable Customer Material, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law or Customer’s account has been compromised. LVSYS will attempt to contact Customer in advance. More information on this is located at: http://lvsys.com/faq
8. PROJECT SUSPENSION AND ABANDONMENT
a. Suspension. If Customer has not provided LVSYS with the required approvals, feedback, or content for any 30 day period after an email request has been sent by LVSYS, the project will be in a suspended state for 30 days.
- During the suspension period, if Customer desires to reinstatement its account it must pay a reinstatement fee of $500*.
b. Abandonment. If Customer has not been reinstated within the 30-day suspension period, then the project will be deemed abandoned.
- All incomplete work will remain the property of LVSYS and any paid fees or deposits will become non-refundable.
- Any website in staging will be archived for only 6 months and taken off line.
- After 6 months LVSYS may delete the archived copy.
- If Customer desires to restart an abandoned project before deletion of the copy, there will be a 25% reinstatement fee* based on the total project estimate (project work will commence subject to availability).
* These fees are liquidated damages and not penalties. They are a reasonable estimate of the damages suffered by LVSYS in the event of a delay.
9. LIABILITY LIMIT.
LVSYS is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or impairment to data, records or information; lost profits or savings; costs of re-procurement; and downtime). LVSYS’ total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 12 month period prior to the event that gave rise to the liability.
If any third-party brings a claim against LVSYS related to Customer’s acts or omissions under this agreement, or Customer Material, Customer must defend, indemnify and hold LVSYS harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
11. GOVERNING LAW AND ARBITRATION.
This agreement is governed by the laws of the State of Oregon (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any dispute between Customer and LVSYS arising out of or related to this agreement must be determined by binding arbitration in Portland, Oregon, under the then current commercial rules of the American Arbitration Association. There will be one arbitrator, and such an arbitrator must be an attorney with at least 10 years experience in with information technology legal matters. Nothing in this agreement prevents either party from seeking injunctive relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party.
12. OTHER TERMS.
a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.
b. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
c. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for force majeure events.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
f. No Additional Terms. LVSYS rejects additional or conflicting terms of any Customer form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h. Survival of Terms and no CISG. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.