Step One Analytics Corp Terms and Conditions
The is comprised of the below terms and conditions and any applicable order form entered into by Step One Analytics Corp d/b/a Lightning AI and Customer (“Agreement”).
Subject to the terms of this Agreement and the applicable order form entered into by Step One Analytics Corp and Customer (“Order Form”), Step One Analytics Corp DBA Lightning AI (Company”) will perform the software services identified in the Order Form for Customer (“You”) during the Term The Term is defined in the Order Form.
2. Customer Data; License Grant
a. Company offers a suite of advertising software solutions through www.lightningai.com (the “Site”). The Company uses data from advertising platform Facebook to combine with proprietary advertising content data provided by Customer to the Service (the “Customer Data”) in order to advance automated bidding, analytics and advanced targeting solely for the benefit of Customer.
b. Subject to the license grant at Section 2(c), Customer retains all right, title and interest in the Customer Data.
c. Customer grants a limited, non-exclusive, non-transferable, revocable (pursuant to Section 7.), non-assignable and royalty-free license, during the Term, to use the Customer Data solely to provide the Services. Customer further grants Company a limited, non-exclusive, non-transferable, perpetual, worldwide license to use the Customer Data, solely in an aggregated and anonymized data format, solely to develop machine learning data models, and improve the Services.
4. Electronic Communications
Visiting the Site or sending emails to Company constitutes electronic communications. You consent to receive electronic communications. With the exception of notice provided under Section 14 (Indemnification), which must be provided in the manner described at Section 14(d), you agree that all Agreements, notices, disclosures and other communications that we provide to you electronically, via email satisfy any legal requirement that such communications be in writing.
5. Your account
If you use the Services, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities caused, directly or indirectly, by you that occur under your account or password. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Company is not responsible for third party access to your account that results from theft or misappropriation of your account. Company and its associates reserve the right to refuse or cancel service, terminate accounts.
6. Age of users
Company does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use www.lightningai.com only with permission of a parent or guardian.
7. Cancellation/Refund Policy/Termination for Cause
a. You may cancel the Agreement for any reason upon thirty (30) days advance notice for cancellation of contract.
b. Either party may terminate this Agreement: (a) upon thirty (30) days notice, if the other party materially breaches any of the terms or conditions of this Agreement, and fails to cure such breach during this period, (b) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (c) upon the other party’s making an assignment for the benefit of creditors or (d) upon the other party’s dissolution or ceasing to do business.
Both parties agree that each party may publicly identify the other as a customer or vendor, and may they use the other party’s name, marks or logos in any marketing materials without the prior approval of the other party provided in writing or by email.
9. Links to third party sites/Third party services
a. may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of Company and Company is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Company is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Company of the site or any association with its operators.
b. Certain services made available via the Site are delivered by the third party site(s) listed on your Order Form (each a “Third Party Service”). By using the Services, you hereby acknowledge and consent that Company may share your Customer Data with the Third Party Service with whom Company has a contractual relationship, solely in order to perform the Services for you.
10. Restrictions on use of Services
a. You may not use the Site or Services for any purpose that is unlawful or prohibited by this Agreement.
b. You may not use the Site or Services in any manner which could damage, disable, overburden, or impair the Site.
c. You may not obtain or attempt to obtain any materials or information from the Site or Services through any means not intentionally made available to you or provided for your use through the Site or Services.
d. You agree that you will not use the Services Content (defined in Section 11) accessed through the Site in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
11. Services Content
a. All content other than Customer Data included as part of the Service or displayed to you as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site (the “Services Content”), is the property of Company or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. The Services Content does not include any advertising materials displayed on www.facebook.com or any other Third Party Service at your direction using the Services. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such Services Content and will not make any changes to the Services Content.
b. You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of theServices Content, in whole or in part, found on the Site or accessed through the Services. Services Content is not for resale. Your use of the Site and Services does not entitle you to make any unauthorized use of any Services Content, and in particular you will not delete or alter any proprietary rights or attribution notices in any Services Content. You will use Services Content solely as described under the documentation for the Services and this Agreement, and will make no other use of the Services Content without the express written permission of Company and the copyright owner. You agree that you do not acquire any ownership rights in any Services Content. We do not grant you any licenses, express or implied, to the intellectual property of Company or our licensors except as required for you to use the Services as expressly authorized by this Agreement.
If the parties have entered into a Non-Disclosure Agreement (“NDA”), the Agreement incorporates the NDA. If the parties have not signed an NDA, neither party will disclose the other party’s Confidential Information to any third party without the other party’s prior written consent or except as required by law, or use the other party’s Confidential Information for any purpose except performing the Agreement or furthering the relationship between the parties. “Confidential Information” means information a party designates as confidential or reasonably considers as confidential. “Confidential Information” does not include information that is or becomes publicly available through no fault of the recipient or received from a third party without a duty of confidentiality. Each party will return or destroy the other party’s Confidential Information upon written request from the other party.
13. International Users
The Service is controlled, operated and administered by Company from our offices within the USA. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws.
a. Company will defend, indemnify and hold Customer harmless from any demand, claim, loss, liability, cost, fees, (including, but not limited to and reasonable attorney’s fees) or damages (“Claim”)
that Customer may incur by reason of or arising out of: (1) use of Customer Data by Company which is not permitted under this Agreement, (2) any violation by Company of its obligations of confidentiality under this Agreement, or (3) and third party claim that the Services, as delivered by Company and used within the scope of this Agreement, infringe any U.S. patent or any copyright or misappropriates any trade secret. If Company reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any Claim described at subparagraph (3), then Company may, at Company’s option and expense, (a) procure for Customer the right to continue using the Services in accordance with the terms hereof, (b) replace or modify the allegedly infringing Services to make them non-infringing, or, (c) if options (a) and (b) cannot be accomplished despite Company’s reasonable efforts, then Company may terminate this Agreement upon written notice to Customer, and refund to Customer any prepaid amounts for unused Services. Company’s indemnification obligations under this Section 14 are conditioned upon Customer: (i) promptly (not less than thirty (30) days from notice of Claim) gives written notice of the Claim to Company (unless Customer’s failure to so notify Company does not prejudice Company), (ii) granting Company sole control of the defense and settlement of the Claim (provided that Company may not settle any Claim unless it releases Customer of all liability) and (iii) providing Company, at Company’s cost, with all assistance, information and authority reasonably required for the defense and settlement of the Claim. Customer shall not be bound by any settlement or compromise that requires Customer to admit liability or that would impose any obligation upon Customer.
b. Notwithstanding the foregoing, Company will have no obligation under this Section 14 or otherwise with respect to any Claim to the extent based upon: (i) Company’s authorized use of the Customer Data, (ii) any unauthorized use, reproduction, or distribution of the Services, (iii) any breach of this Agreement by Customer, (iv) any combination of the Services with other products, equipment, software or data not supplied by Company, (v) any modification of the Services or Company Data by any person other than Company or its authorized agents or contractors, (vi) any activity after Company has provided Customer with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Services or (vii) any action by a third party that is not within Company’s reasonable control.
c. Customer will defend, indemnify and hold harmless Company against any Claim that Company may incur by reason of or arising out of a third party Claim alleging that the Customer Data as delivered directly or indirectly by Customer to Company and used within the scope of this Agreement infringes any third party intellectual property right or violates any applicable law or regulation. Customer’s indemnification obligations under this Section 14 are conditioned upon Company: (i) promptly (not less than thirty (30) days from notice of Claim) gives written notice of the Claim to Customer, (ii) granting Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it releases Company of all liability) and (iii) providing Customer, at Customer’s cost, with all assistance, information and authority reasonably required for the defense and settlement of the Claim. d. Any notices required by this Section 14 will be in writing and given by personal delivery, by pre-paid first class mail or by overnight courier “Attention Legal Department” to the address specified in the most recent Order Form (or such other address as may be specified in writing in accordance with this Subsection 14(d)).
In the event the parties are not able to resolve any dispute between them arising out of or concerning this Agreement, or any provisions hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration
pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the American Arbitration Association, or a similar arbitration service selected by the parties, in a location mutually agreed upon by the parties. The arbitrators award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. The parties agree to arbitrate all disputes and claims in regards to this Agreement or any disputes arising as a result of this Agreement, whether directly or indirectly, including Tort claims that are a result of this Agreement. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of this Agreement.
16. Class Action Waiver
Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER.
17. Disclaimer; Changes to Services
a. THE SOFTWARE IS NOT ERROR FREE AND MATERIALS AVAILABLE THROUGH THE SITE MAY INCLUDE TYPOGRAPHICAL ERRORS.
b. STEP ONE ANALYTICS CORP AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE OR SERVICES, OR BOTH, AT ANY TIME, PROVIDED THAT SUCH IMPROVEMENTS OR CHANGES, OR BOTH, DO NOT RESULT IN ANY DECREASE OF LOSS OF FUNCTIONALITY OF THE SITE OR SERVICES, OR BOTH.
18. Limited Warranty
a. Company represents and warrants that: (a) it has all right and authority necessary to enter into and perform this Agreement and (b) it will perform the Services in a professional and workmanlike manner in accordance with the Services documentation and generally prevailing industry standards.
b. STEP ONE ANALYTICS CORP AND/OR ITS SUPPLIERS MAKE NO OTHER REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE. STEP ONE ANALYTICS CORP HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
19. Limitation of Liability.
a. By Type. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR: (A) ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, BUSINESS, OR PROFITS), REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY MATTER BEYOND
THE PARTY’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
b. By Amount. IN NO EVENT SHALL AGGREGATE, CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE (TWELVE) 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. IN NO EVENT SHALL COMPANY’S AGGREGATE, CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE GREATER OF TWICE THE TOTAL FEES PAYABLE BY CUSTOMER TO COMPANY FOR TWELVE MONTHS WORTH OF SERVICES UNDER THIS AGREEMENT ACCORDING TO THE MONTHLY RATE SPECIFIED ON THE ORDER FORM OR $150,000.
c. The limitations of liability set forth in Sections 19(a) and 19(b) above do not apply to, and each party accepts liability to the other for: (a) damages related to claims that are the subject of indemnification under this Agreement (b) claims based on either party’s breach of its obligations set forth in Section 12 (Confidentiality) and (c) either party’s unauthorized use, distribution, or disclosure of the other party’s intellectual property.
20. Termination/access restriction
Company reserves the right, in its sole discretion, to terminate your access to the Site and the Services or any portion thereof at any time, without notice. To the maximum extent permitted by law, this Agreement is governed by the laws of the State of California and the parties hereby consent to the exclusive jurisdiction and venue of courts in California in all disputes arising out of or relating to the use of the Site or Services.
- Insurance. See Exhibit C.
- You agree that no joint venture, partnership, employment, or agency relationship exists
between you and Company as a result of this Agreement or use of the Site or Services.
c. Company’s performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Company’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site, Services or information provided to or gathered by Company with respect to such use.
d. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
e. Unless otherwise specified herein, this Agreement constitutes the entire Agreement between the Customer and Company with respect to the Site and Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between Customer and Company with respect to the Site and Services.
f. It is the express wish to the parties that this Agreement and all related documents be written in English.