a. Electronic Agreement/Modification. This Agreement is an electronic contract that sets out the legally binding terms of your use of FUT and related services. By accessing FUT and/or becoming a registered user, you consent to have this Agreement provided to you in electronic form. This Agreement may include other Lightspeed policies referenced herein and any notices regarding FUT. By accessing FUT or clicking the “Accept and Continue” Button, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein.
b. Modification. This Agreement and any other policies referenced by this Agreement may be modified by Lightspeed at its sole discretion from time to time. Such modifications shall be effective upon posting on FUT by Lightspeed, and your use of FUT after such posting will constitute acceptance by you of such changes. Please consult this Agreement and the referenced policies regularly. This Agreement was last updated on September 10, 2018.
c. Access and Retention. A link to this Agreement will be found on the Lightspeed homepage. In order to access and retain this electronic Agreement, you must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must use all software and equipment necessary to make such connection to the World Wide Web. Please print a copy of this document for your records. To retain an electronic copy of this Agreement, you may save it into any word processing program.
1. Subscription/License. Subject to the terms and conditions of this Agreement, Lightspeed hereby grants to User a limited, non-exclusive, non-transferable license to access and use FUT during the subscription term. The applicable subscription plans, associated fees and term of subscription will be selected by the User during the User’s registration with FUT or during any subsequent purchase. Subscription plans and their associated fees are available upon request. Such plans shall selected and agreed upon through execution of an applicable Service Order. By agreeing to grant such license, Lightspeed does not obligate itself to maintain FUT in its present form. Lightspeed may upgrade, modify, change or enhance FUT upon reasonable prior notice to User (unless the change is of critical business importance or outside Lightspeed’ control, in which case Lightspeed will explain the reason for the changes as soon as is reasonably practicable).
2. Multi-Users. A User that is an entity, organization, or institution may assign individuals who are employees of User (“Authorized End-Users”) to access FUT. If a User desires to assign an individual who is not an employee of the Company, than User must obtain written consent from Lightspeed prior to such assignment. Users will remain liable for all acts or omissions of its Authorized End-Users with respect to access and use of FUT; furthermore, and for the avoidance of doubt, such User will be responsible for ensuring that its Authorized End Users remain fully compliant with this Agreement. The Authorized End User’s identifier must not be of a generic nature. An example of a permissible unique identifier is John Doe and email@example.com; examples of impermissible generic identifiers include the following: firstname.lastname@example.org or email@example.com. A User purchasing a Multi-User Subscription must designate an administrator (“Master Administrator”). A Master Administrator shall have reporting access and management tools.
3. License Restrictions. FUT is intended solely for the internal business use of the User. Lightspeed reserves all rights not expressly granted to User. User will not copy, export, transmit electronically, download electronically or in hard copy, post to a database or to the Internet, or otherwise reproduce in any fashion any portion of FUT, or its underlying content, software, tools, reports or databases or any substantial portion thereof, except as expressly authorized in this Agreement. Except as expressly authorized in this Agreement, User shall not: (a) use, copy, reproduce, export, merge or transfer copies of FUT; (b) rent, lease, sublicense, distribute, transfer, copy, modify or timeshare FUT or any of User’s rights under this Agreement; or (c) use FUT or any part of it after any expiration, termination, or cancellation of this Agreement or the license granted by this Agreement. You agree to prevent any unauthorized copying of FUT or its content. You also agree not to transfer any access privileges to FUT or its materials/content to any third parties. As a condition of your use of FUT, you warrant to Lightspeed that you will not use FUT for any purpose that is unlawful or prohibited by this Agreement. You may not use FUT in any manner which could damage, disable, overburden, or impair FUT or interfere with any other party's use and enjoyment of FUT.
4. Password/Account Settings. When you create a profile/account and register with Lightspeed, you will also be asked to choose a password for purposes of accessing FUT and its services. User agrees that the username and password are to be used only by User, or any Authorized End-Users. The use of User’s username and password by other individuals is a violation of this Agreement. User is responsible for maintaining the confidentiality of the username and password that you designate during the registration process, and you are fully responsible for all activities that occur under your username and password. You shall prevent unauthorized use of the Website using your password. You agree to (a) immediately notify Lightspeed of any unauthorized use of your username or password or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Lightspeed will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. All assignments of your password shall be void.
5. Fees/Payment Methods. Lightspeed charges fees for its subscriptions which shall be set forth in one or more Service Orders. User agrees to pay the corresponding fees for each subscription ordered. Lightspeed reserves the right to change the subscription fee with respect to a renewal term. Unless otherwise expressly stated, all fees are stated in United States dollars.
Lightspeed utilizes third party companies, to handle credit card and payment transactions. Lightspeed is not responsible for such transactions. Therefore the burden of PCI Compliance rests solely on such third party companies.
6. No Advice/Reports/Third Party Interactions. The information provided on or obtained from FUT, including the tools and databases, is for reference use only and does not constitute the rendering of financial, legal or other professional advice or recommendations by Lightspeed. Use of such information is not a substitute for professional recommendations. To the extent you access and use FUT, including the tools and databases, Lightspeed does not represent or endorse the accuracy or reliability of any advice, opinion, statement or any other information displayed or distributed through such tools, database or any resulting report. Lightspeed has not audited or attempted to confirm this information for accuracy or completeness, and is not responsible for any errors.
Federal and state laws may govern use of FUT. User hereby agrees to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with use of FUT. User acknowledges that Lightspeed merely provides FUT, and that the responsibility to use FUT in a lawful manner lies solely with User. While FUT provides functionality that allows User to communicate with third parties, as well as certain scripts and notices (such as Double Opt-In notices), User is solely responsible for complying with any and all applicable laws, rules and regulations, including but not limited to, autodialer laws, the Telephone Consumer Protection Act (TCPA), and the CAN-SPAM Act.
Use of the FUT allows the interaction with third parties. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Lightspeed shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party facilitated by the Services or FUT.
7. Intellectual Property Ownership. Lightspeed owns and retains all right, title and interest in and to the following (collectively, “Lightspeed Property”): (i) FUT and other tools, software, database(s), technology, content, documentation, and information provided by Lightspeed in connection with FUT (excluding the third party databases and User Data as defined below); (ii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Lightspeed during its performance under this Agreement; (iii) the marks “Follow-up Tool”, “Lightspeed Voice” and other Website graphics, logos, page headers, button icons, scripts, and service names; and (iv) all worldwide patent, copyright, trade secret, trademark and other intellectual property rights in and to the property described in clauses (i), (ii) and (iii) above. Except as otherwise expressly authorized herein or by Lightspeed in writing, the non-exclusive license set forth in this Agreement is the entirety of User’s rights in connection with the Lightspeed Property. This Agreement is not a sale of Lightspeed Property or any portion, copy or derivative work thereof. Accordingly, all rights in the Lightspeed Property are hereby expressly reserved. Lightspeed shall be entitled to use, license, sell, assign, transfer, and/or otherwise provide rights relating to the Lightspeed Property to any third party for any purpose free from any claim of User. FUT is protected by U.S. copyright laws and international treaty, and the unauthorized reproduction or distribution thereof is subject to civil and criminal penalties. Except as otherwise expressly authorized herein or by Lightspeed in writing, User shall not directly or indirectly (and shall not permit any unauthorized party to) do any of the following: (i) access, use, sell, distribute, sublicense, sublease, broadcast, or commercially exploit any Lightspeed Property or any rights under this Agreement, including without limitation any access or use of any Lightspeed Property on a service bureau basis or for any User processing services beyond the scope specified in this Agreement (such as any unauthorized parties on a rental or sharing basis); (ii) copy, modify, or prepare derivative works based on Lightspeed Property; (iii) reverse engineer, decompile, disassemble, or attempt to derive source code from any Lightspeed Property; (iv) remove, obscure, or alter any intellectual property right or confidentiality notices, copyright notices or legends appearing in or on any aspect of any Lightspeed Property; (v) cause any confusion with Lightspeed’ brand or identity; or (vi) interfere, in any manner, with Lightspeed’ provision of FUT.
8. User Data. Subject to the terms of this Agreement, User hereby grants to Lightspeed a royalty-free, non-exclusive, non-transferable right and license to use, copy, transfer, store, and display the User Data for the purpose of enabling Lightspeed to provide FUT and the underlying software tools under this Agreement. User shall retain sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all User Data, and any potential security breaches related to such User Data. “User Data” means the data and information entered by User into FUT.
9. Termination/Cancellation. The license granted pursuant to Section 1 of this Agreement shall automatically terminate (i) upon expiration of the applicable subscription term or (ii) in the event User breaches any provision of this Agreement. User may terminate or cancel the license granted by discontinuing use of FUT and providing written notice to Lightspeed. All license fees are non-refundable and non-cancellable, even if termination occurs prior to the expiration of the subscription term. You agree that Lightspeed may, in its sole discretion, terminate or suspend your access to all or part of FUT with or without notice and for any suspected breach of this Agreement or any suspected fraudulent, abusive or illegal activity. Upon the expiration or termination of this Agreement for any reason, User shall immediately cease all use of FUT, and Lightspeed may immediately deactivate or delete User’s account and all related information and files and/or bar any further access to such files or FUT. Lightspeed will not be liable to User or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by Lightspeed in connection with such termination or suspension.
10. Service Availability. Lightspeed will use commercially reasonable efforts to enable FUT to be accessible, except for scheduled maintenance and required repairs, and except for any interruption due to causes beyond the reasonable control of, or not reasonably foreseeable by Lightspeed, including, but not limited to, any Force Majeure Event (as defined below). The foregoing undertaking shall not apply to the extent of any non-conformance caused by use of FUT contrary to Lightspeed’ instructions, or modification or alteration of FUT by any party other than Lightspeed. If FUT is in non-conformance with the foregoing undertaking, Lightspeed will, at its expense, use reasonable commercial endeavors to correct such non-conformance promptly, or provide User with an alternative means of accomplishing the desired performance.
11. Limited Warranty. Lightspeed represents and warrants as follows: (i) it has the full power, capacity and authority to enter into and perform this Agreement and to make the grant of rights contained herein, including without limitation, the right to license any ancillary or third party programs licensed to User under this Agreement; (ii) there is no pending or threatened litigation that would have a material adverse impact on its performance under this Agreement; and (iii) FUT does not contain any known virus or similar code that may destroy, modify, alter, or cause the destruction, modification or alteration, in whole or in part, of any of User’s equipment, devices, software, or data. As User’s sole and exclusive remedy for breach of the foregoing warranty, Lightspeed shall either correct the nonconformity or refund the applicable license fees paid for the applicable FUT. The warranty provided in this Section is solely for User’s benefit and User shall have no authority to extend the warranty to any third party. Lightspeed shall not be liable for failures caused by third party hardware, User Data, misuse of FUT, or User’s gross negligence or willful misconduct.
12. WARRANTY DISCLAIMER. EXCEPT AS PROVIDED IN SECTION 11 (LIMITED WARRANTY), FUT AND ANY REPORTS GENERATED FROM FUT ARE PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. LIGHTSPEED SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, GUARANTIES, CONDITIONS OR REPRESENTATIONS OF ANY KIND (EXPRESS OR IMPLIED, ORAL OR WRITTEN) INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY, QUALITY OF INFORMATION, TITLE/NON-INFRINGEMENT, AND THOSE ALLEGED TO ARISE BY A CUSTOM OR USAGE IN A TRADE, OR BY COURSE OF DEALING. LIGHTSPEED MAKES NO REPRESENTATION OR WARRANTY THAT FUT OR ANY REPORT GENERATED FROM FUT IS FIT FOR ANY PARTICULAR PURPOSE OR THAT THE OPERATION OF FUT, OR THE UNDERLYING TOOLS, WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN FUT WILL BE CORRECTED. USER EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF FUT IS AT USER’S SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LIGHTSPEED OR LIGHTSPEED’ AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES CONTAINED IN SECTION 11. LIGHTSPEED MAKES NO WARRANTY AS TO THE ADEQUACY OR CAPACITY OF ANY HARDWARE OR THIRD PARTY SOFTWARE TO ATTAIN SOME OR ALL OF THE PERFORMANCE OBJECTIVES OF USER. MANY FACTORS, INCLUDING BUT NOT LIMITED TO THE TYPE OF NETWORK, THE AMOUNT OF TOTAL NETWORK TRAFFIC, AND THE TYPE AND PATTERN OF USAGE OF FUT ON THE NETWORK, WILL IMPACT THE PERFORMANCE OF FUT.
13. LIMITATION OF LIABILITY. IN NO EVENT SHALL LIGHTSPEED OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, OWNERS, MANAGERS, AFFILIATES, SUBSIDIARIES, EMPLOYEES, AGENTS, REPRESENTATIVES OR INDEPENDENT CONTRACTORS, BE LIABLE TO YOU OR ANY PARTY FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS, OR GOODWILL, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, REVENUE, BUSINESS INFORMATION OR DATA, OF ANY PERSON OR ENTITY WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF LIGHTSPEED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIGHTSPEED HAS SET PRICES FOR FUT BASED ON THE ALLOCATION OF RISKS SET OUT IN THIS AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, LIGHTSPEED’ MAXIMUM LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO TWO HUNDRED DOLLARS ($200), REGARDLESS OF WHETHER THE CLAIM OR ACTION IS BASED ON CONTRACT, TORT, WARRANTY, INDEMNIFICATION OR OTHERWISE. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. YOU WILL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF FUT BY USER AND/OR AUTHORIZED END USERS.
14. Indemnity. You agree to indemnify and hold Lightspeed, its officers, directors, shareholders, partners, owners, managers, affiliates, subsidiaries, sponsors, advertisers, licensors, employees, agents, representatives and independent contractors, harmless from any loss, liability, damages, claim, actions, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of FUT in violation of this Agreement and/or arising from any use of FUT. Such indemnification obligation also applies to any issues related to security issues or data breaches in connection with User Data.
15. Support, Training, and Customizations. Lightspeed shall have no support, training or customization obligations hereunder except as otherwise provided in a mutually agreed upon Service Order.
16. Security. Protecting your personal information and business data is important to Lightspeed. Lightspeed uses encryption technology to protect your information as it is transmitted over to Lightspeed over the Internet. While Lightspeed uses security technology to secure your personal information, Lightspeed cannot guarantee that any electronic commerce is completely secure. Please also see Section 4 regarding security of your username and password.
17. Use with Mobile Devices. Use of FUT may be available through a compatible mobile device using Internet access and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees for SMS messages, data plans, and general usage, as well as the terms of your agreement with your mobile device and telecommunications provider. LIGHTSPEED MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO FUT (OR THE LIGHTSPEED SYSTEM) AT ANY TIME OR FROM ANY LOCATION; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH FUT.
18. Consent to Arbitration, Forum Selection and Choice of Law. By using FUT, you expressly agree that if there is any dispute arising out of FUT, or in the event of any action arising directly, indirectly, or otherwise in connection with, out of, related to or from this Agreement or any transaction covered hereby or otherwise arising in connection with the relationship between the parties, regardless of whether such action is brought under contract, tort, statute or otherwise, any such dispute shall be governed by the laws of the State of Florida, without regard to its conflict of law provisions, and you expressly agree and consent to arbitration for the resolution of any such dispute. Such arbitration shall be decided by one arbitrator in a hearing held in Sarasota County, Florida, pursuant to the Commercial Rules of the American Arbitration Association. Judgment on the award rendered by the Arbitrator may be entered by any court with jurisdiction. The aforementioned location of arbitration is intended by the parties to be mandatory and not permissive in nature
19. Legal Fees. If any dispute arises between the Parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
20. Force Majeure. Lightspeed shall not be liable for failing to perform its obligations hereunder because of circumstances reasonably beyond its control. Such circumstances shall include (without limitation) any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, labor disputes, power failure, delays in transportation or deliveries of supplies or materials, acts of God, computer failure, hardware failure, telecommunications failure, software failure, cyber-attacks, cyber-hacks, cyber-crimes, or cyber-disruptions, failure of users to cooperate with the reasonable requests of Lightspeed, breach of this Agreement by users, and any other events reasonably beyond the control of Lightspeed (each a “Force Majeure Event”).
21. Entire Agreement. This Agreement contains the entire agreement between you and Lightspeed regarding the use of FUT. Any other policy statements as referenced herein (as modified by Lightspeed from time to time) is incorporated herein by reference and made a part of this Agreement.
22. Assignment. You may not assign your rights and obligations under this Agreement to any third party, and any purported attempt to do so will be null and void. Lightspeed may freely assign its rights and obligations under this Agreement.
23. Severability. If any part of this Agreement is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect.
24. Waiver. Any failure by Lightspeed to enforce or exercise any provision of this Agreement or related rights will not constitute a waiver of that right or provision.
25. Captions. The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
26. Data Privacy Addendum. Please refer to our Data Privacy Addendum set forth here http://www.lightspeedvoice.com/privacy, which is incorporated by reference into this Agreement.
Please contact us with any questions regarding this Agreement.