LightCMS Developer Program Agreement

This LightCMS Developer Program Agreement (“Agreement”) is by and between LightCMS LLC (“LightCMS”) and the person or entity (“Developer” or “you”) participating in the LightCMS Developer Program (“Program”). Participating in the Program gives approved Developers the right to create and resell access to the LightCMS Service to Developer Customers (defined below), subject to the terms and conditions of this Agreement.

By clicking “accept” or participating in or applying for the Program, you agree that you are legally bound by this Agreement. If you are an individual agreeing to this Agreement on behalf of an entity, you represent and warrant that you are duly authorized to enter into this Agreement. The rights granted under this Agreement are expressly conditioned on acceptance by such authorized personnel. This Agreement is effective as of the earlier of the date you apply for the Program or enter into an Order Form under this Agreement (“Effective Date”).

Terms and conditions

1. Definitions

Account” means the LightCMS Service account administration interface accessed by Developer. All LightCMS Websites created by Developer on behalf of Website Users belong to the same Account.

Documentation” means the user guides and account guides for the LightCMS Service made generally available by LightCMS.

Fees” means the applicable standard fees for LightCMS Developers as set forth on the Order Form or at http://www.lightcms.com/developers (or other URL provided or re-directed by LightCMS).

LightCMS Marks” means product names, logos, trademarks or other identifiers of LightCMS or any LightCMS Service.

LightCMS Service” means LightCMS’s on-line website management service as specified in the applicable Order Form, as may be updated or modified by LightCMS from time to time (but excluding any third party tools or services with which such service may be used). Any website design templates made available by LightCMS through the LightCMS Service are also included as part of the LightCMS Service.

LightCMS Website” means a website designed, created and/or operated by Developer on behalf of a Website User and that is hosted on the LightCMS Service.

Order Form” means a LightCMS order form, renewal notification or other order form executed by Developer and accepted by LightCMS that references this Agreement. Each Order Form is incorporated into the Agreement by reference.

Developer Customer” means an end-user of the LightCMS Service that is a customer of Developer.

Subscription Term” means a monthly subscription term for each LightCMS Website.

Support” means the support services generally made available by LightCMS to its customers under the terms of a separate agreement or such other support terms as LightCMS may provide its customers from time to time.

Term” has the meaning set forth in Section 6.1 (Term).

Terms of Service” means the then-current version of LightCMS’s standard customer agreement governing use of the LightCMS Service, a current version of which is located at http://www.lightcms.com/terms-of-service.

Usage Limits” means any Subscription Term, user, LightCMS Website, page, storage, bandwidth, product, scope of use or other restrictions on use or functionality of the LightCMS Service, as specified in the Order Form, the LightCMS Service, or this Agreement. Regarding storage, LightCMS may enforce a maximum file size of 40MB for all plans (including Unlimited plans). Regarding bandwidth, LightCMS will consider LightCMS Website(s) to be utilizing abnormally high bandwidth (inclusive of all uploads/downloads) at the following levels for the applicable LightCMS Service plan: 2TB/month for Unlimited, 1TB/month for Professional, 500GB/month for Premium, 250GB/month for Standard, 125GB/month for Personal, and 25GB/month for Free. The foregoing limits and parameters for storage and bandwidth also constitute Usage Limits. Without limiting LightCMS’s other remedies, you acknowledge that LightCMS may monitor your compliance with Usage Limits and may enforce Usage Limits by restricting your usage of the LightCMS Service, or by contacting you and requiring you to either restrict usage or (if applicable) upgrade your Account.

"Website User” means an individual with access to one or more LightCMS Websites, including Developer Customers.

2. Developer Activities

2.1 Offering of LightCMS Service. Subject to all of the terms and conditions of this Agreement and Order Form, during the Term, LightCMS hereby grants Developer the right to market the LightCMS Service to and create LightCMS Websites on behalf of new Developer Customers, but solely for use by each such Developer Customer (i) without any right of redistribution or sharing, (ii) subject to the Usage Limits and (iii) pursuant to Section 2.7 below. These rights may not be transferred or sublicensed by Developer.

2.2 Provision of LightCMS Service. Without limiting Developer’s permitted activities in Section 2.4 (White Labeling), the parties acknowledge and agree that LightCMS will: (a) operate the LightCMS Service, and (b) provide the LightCMS Service to Developer. Notwithstanding the foregoing, as to each LightCMS Website and Developer Customer, Developer will be solely responsible for ongoing activities related to billing and collection of fees and refunds as further set forth in Section 3 (Orders and Payment) below. LightCMS reserves the right to modify the LightCMS Service at any time.

2.3 Account Provisioning. Upon LightCMS’s receipt of a signed Order Form from Developer, LightCMS will provide to Developer the applicable passwords, authentication keys or security credentials.

2.4 White-Labeling. Developer may white-label certain branding and visual elements of certain pages of a LightCMS Website, solely as permitted via the functionality of the LightCMS Service and pursuant to the Documentation. Except as expressly permitted in this Section 2.4, Developer may not re-brand, re-frame, operate or otherwise control the LightCMS Service.

2.5 Developer Services. If Developer resells the LightCMS Service to Developer Customers as part of a package of services or offerings (“Developer Services”), Developer will remain solely responsible and liable for all Developer Services. Developer must have all necessary experience, skills and resources to successfully complete any Developer Services.

2.6 Developer’s Other Use. Under this Agreement, Developer may use the LightCMS Service only as needed to provide the LightCMS Service to Developer Customers. Any use by Developer of the LightCMS Service on its own behalf (e.g., for its own websites) must be purchased separately from LightCMS and will be subject to a different agreement.

2.7 Compliance by Developer and Website Users. Developer will comply with and will ensure that each Website User complies with the terms of this Agreement and the Terms of Service and shall be fully liable to LightCMS for all Website Users’ use of the LightCMS Service and/or LightCMS Website(s). LightCMS recommends that Developer incorporate terms consistent with or at least as restrictive as the Terms of Service into its agreements with Developer Customers. However, Developer’s failure to incorporate such terms into its agreements with Developer Customers shall not relieve Developer of its liability to LightCMS for its Website Users’ use of the LightCMS Service. If there is a conflict between the Terms of Service and this Agreement, the Terms of Service shall prevail.

2.8 General Restrictions. Developer shall not (and shall not permit any Website User or other third party) to: (a) rent, lease, copy, provide access to or sublicense the LightCMS Service to a third party, except as expressly permitted hereunder; (b) incorporate the LightCMS Service (or any part thereof) into another product or service or otherwise use the LightCMS Service (or any part thereof) to provide any product or a service to a third-party, except as expressly permitted herein; (c) reverse engineer, decompile, disassemble or otherwise seek to obtain the source code or non-public APIs to the LightCMS Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to LightCMS); (d) modify the LightCMS Service or any Documentation or create any derivative product from any of the foregoing, except as expressly permitted in Section 2.4 (White-Labeling); (e) remove or obscure any product identification, proprietary, copyright or other notices contained in the LightCMS Service (including any reports or data printed from the LightCMS Service); or (f) publicly disseminate information or analysis regarding the performance of the LightCMS Service.

2.9 Non-Exclusive. The rights granted to Developer hereunder are non-exclusive and nothing in this Agreement shall be deemed to prohibit LightCMS from entering into any reseller, end-user, services or other agreement with any party anywhere in the world either during or after the Term of this Agreement.

3. Orders and Payment

3.1 Unauthorized Terms. Any additional or different terms set forth on any Developer documentation with Developer Customers will not be binding upon LightCMS and Developer will be solely liable for any claims arising from such unauthorized terms. Submitted Order Forms are non-cancellable by Developer.

3.2 Fees for the LightCMS Service.

a. Fees. Developer shall pay to LightCMS the Fees for the LightCMS Service. Developer will be charged the Fees for each LightCMS Website in advance of the applicable Subscription Term in accordance with this Agreement. Developer hereby authorizes LightCMS to automatically charge applicable Fees to the credit or debit card on Developer’s Account. All Fees are non-refundable.

b. Taxes; Late Payment. The Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (“Taxes”). Developer is responsible for paying all Taxes, excluding only taxes based on LightCMS's net income and taxes based on gross revenues or gross receipts when imposed by a U.S. local, state, or federal tax authority. Developer is responsible for Taxes based on gross revenues or gross receipts imposed by a foreign tax authority on payments due to LightCMS for the LightCMS Service. If LightCMS has the legal obligation to pay or collect Taxes for which Developer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Developer unless Developer provides LightCMS with a valid tax exemption certificate authorized by the appropriate taxing authority. Any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less.

3.3 Developer Customer Pricing; Collection. Developer will independently determine the pricing and fees at which it offers the LightCMS Service to Developer Customers. Developer will be solely responsible for collecting all fees for any use of the LightCMS Service and LightCMS Websites. Non-payment by Developer Customers shall not relieve Developer of its obligation to pay Fees to LightCMS. LightCMS reserves the right to cancel or suspend the LightCMS Service with respect to the Developer or Website User(s) if LightCMS does not receive payment from Developer with respect to use of any LightCMS Website. If the Account credit card is declined when a charge is attempted, LightCMS will email Developer to warn Developer that the card must be updated. After a series of these messages is delivered, if the issue is still unresolved, all websites under the Account are disabled until Developer resolves the situation.

3.4 Refunds; Credits. If LightCMS elects to issue a refund or credit in its sole discretion, LightCMS will remit to Developer the portion of the applicable amounts and Developer will be solely responsible for any and all refunds/credits to Developer Customers.

4. Developer Obligations

4.1 LightCMS Marketing Materials and Trademarks. Developer may use the specific LightCMS Marks identified by LightCMS for such purpose in Developer’s marketing and advertising of the LightCMS Service, provided Developer receives advance approval in writing for each such marketing, advertising or other promotional material which uses a LightCMS Mark (or otherwise describes the LightCMS Service) and Developer otherwise complies with the terms of this Section. Developer’s use of LightCMS Marks shall conform to LightCMS’s then-current trademark use policies. Developer will cease any and all use of LightCMS Marks at any time upon request by LightCMS. Developer will not register, or attempt to register, any trademark or domain name using or similar to any LightCMS Marks, and if Developer has, agrees to immediately effect transfer of such domain name to LightCMS without charge. All goodwill arising from the use of LightCMS Marks shall inure to the benefit of LightCMS.

4.2 Representations. Developer shall not make any representations, guarantees or statements of any type regarding LightCMS or the LightCMS Service except as consistent with the written descriptions provided by LightCMS to Developer. In no event shall Developer make any representation, warranty or guarantee by or on behalf of LightCMS hereunder nor represent itself as an agent or employee of LightCMS. Developer shall represent LightCMS and the LightCMS Service in a positive and professional manner at all times. Developer acknowledges that such representation is essential to LightCMS’s goodwill in the LightCMS Service, and agrees that its failure to do so shall be a material breach of this Agreement.

4.3 Business Practices. Developer agrees not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to LightCMS or the LightCMS Service and agrees to comply with all applicable federal, state and local laws and regulations (including, without limitation, data protection, privacy and import and export compliance laws and regulations) in connection with its performance under this Agreement. Developer further agrees to notify LightCMS in advance if Developer intends to sell, represent or promote any products competitive with the LightCMS Service. Developer agrees that it shall compensate its sales force equally (including with respect to commissions, incentives, promotions and bonuses) for sales activities related to the LightCMS Service as compared to any other product or service offered by Developer.

4.4 Foreign Corrupt Practices. Developer represents and warrants that (i) in connection with this Agreement, it has not and will not make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, to any official of any foreign government or any agency or instrumentality thereof and (ii) it will comply in all respects with the U.S. Foreign Corrupt Practices Act and similar domestic or foreign law.

4.5 Records and Audit. Developer agrees to maintain complete, clear and accurate records of all orders, Website Users, LightCMS Websites created and transactions completed with respect to this Agreement or any other information reasonably required to evidence compliance or calculate fees payable. Upon ten (10) days advance written notice, Developer shall permit LightCMS or its representative to review such records and any other books and records of Developer which relate to Developer’s performance under this Agreement or to ensure Developer’s compliance with its obligations to LightCMS. Any such audit will be conducted during normal business hours and in a manner designed to cause minimal impact on Developer’s ordinary business activities. Developer shall maintain all records required under this Agreement for at least three (3) years following expiration or termination of this Agreement (or such longer period as required by law).

4.6 Indemnification by Developer. Developer will defend, indemnify and hold harmless LightCMS and its affiliates (including its and their respective directors, officers, employees and agents) from and against any and all third party claims (which may include claims from Website Users), demands, losses, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) arising from or relating to: (a) any breach or alleged breach by Developer, Developer Customer or Website User of this Agreement, including without limitation Sections 2.7 (Compliance by Developer and Website Users), 2.8 (General Restrictions), 4.2 (Representations), 4.3 (Business Practices), 4.4 (Foreign Corrupt Practices), or 12 (Export Compliance); (b) Developer’s relationships with Website Users; and (c) Developer’s acts or omissions in connection with the Program or its marketing, distribution or sale of any Developer Services. LightCMS may participate in the defense of any such claim by counsel of its own choosing, at its cost and expense. Developer may not settle any claim without LightCMS’s prior written consent if the settlement requires LightCMS to take any action, refrain from taking any action or admit any liability.

5. Ownership. Developer acknowledges that it is obtaining only a limited right to market the LightCMS Service and create LightCMS Websites on behalf of Developer Customers and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Developer under this Agreement. LightCMS or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the LightCMS Service, Documentation, any other materials provided by LightCMS in connection with the program, and any and all related and underlying software (including interfaces), databases (including data models and structures) and technology. Further, Developer acknowledges that the LightCMS Service consists of online hosted services, and that neither Developer nor any Website User has a right to obtain any underlying code of the LightCMS Service hereunder.

6. Term of Agreement

6.1 Term. This Agreement starts on the Effective Date and continues for the period of time set forth in the applicable Order Form (the “Term”).

6.2 Termination. Either party may terminate this Agreement (including all related Order Forms and LightCMS Websites) if the other party: (a) fails to cure any material breach of this Agreement within ten (10) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). In addition, LightCMS may terminate this Agreement immediately upon notice to Developer if LightCMS ceases to offer the Program. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

6.3 Effect of Expiration or Termination.

a. Upon any expiration or termination of this Agreement, Developer shall (i) cease to be an authorized reseller of the LightCMS Service and shall have no right to participate in the Program, market the LightCMS Service, or develop/design new LightCMS Websites under this Agreement; (ii) return to LightCMS all property of LightCMS (including Confidential Information); (iii) immediately pay LightCMS any outstanding unpaid amounts; and (iv) unless termination is by Developer for LightCMS’s material breach, pay LightCMS the amounts, if any, which come due under any Order Form accepted prior to the date of termination as such amounts come due. LightCMS shall have no liability to Developer or Website User of any type arising from termination of this Agreement in accordance with its terms.

b. Any Website User subscription to the LightCMS Service granted prior to the termination of the Agreement shall survive in accordance with the terms herein, provided Developer shall pay to LightCMS the applicable amounts set forth at http://www.lightcms.com/pricing per LightCMS Website. Developer Customers may elect to renew such subscriptions directly with LightCMS pursuant to LightCMS’s then current terms. Developer has no right to sell, renew or otherwise receive any compensation for any additional sales or renewals to any Developer Customer after expiration or termination of this Agreement.

6.4 Survival. Sections 1 (Definitions), 2.7 (Compliance by Developer and Website Users), 2.8 (General Restrictions), 3.2 (Fees for the LightCMS Service), 3.4 (Refunds; Credits), 4.5 (Records and Audit), 4.6 (Indemnification by Developer), 5 (Ownership), 6 (Term of Agreement), 7 (Disclaimer of Warranties), 9 (Limitation of Remedies and Damages), 10 (Indemnification by LightCMS), 11 (Confidential Information), 12 (Export Compliance) and 13 (General) shall survive any termination or expiration of this Agreement.

7. Disclaimer of Warranties. the LIGHTCMS SERVICE AND ANY TRAINING, SUPPORT OR OTHER SERVICES OF LIGHTCMS ARE PROVIDED HEREUNDER “AS IS”. NEITHER LIGHTCMS NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF Title, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LightCMS AND its suppliers do not warrant that the operation of the LightCMS Service will be error free or uninterrupted.

8. Support; Professional Services

8.1 Website User Support. Developer is solely responsible to Website Users for all support related to the LightCMS Service and/or LightCMS Websites. LightCMS shall not provide Support directly to any Website User.

8.2 Professional Services. Developer may order professional services or training to be provided directly by LightCMS at LightCMS’s then-current rates and terms. A separate Statement of Work shall be mutually agreed upon before LightCMS performs any such services.

9. Limitation of Remedies and Damages

9.1 Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THIS PROVISION SHALL ALSO APPLY TO ANY THIRD-PARTY SUPPLIER OF LIGHTCMS.

9.2 Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, LIGHTCMS’S (AND ITS THIRD-PARTY SUPPLIERS’) ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY Developer TO LIGHTCMS UNDER THIS AGREEMENT.

9.3 Exclusions. “Excluded Claims” means, with respect to Developer’s liability, any claim arising under Sections 2 (Developer Activities), 4.2 (Representations), 4.3 (Business Practices), 4.6 (Indemnification by Developer) or 11 (Confidential Information).

9.4 Failure of Essential Purpose. The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

10. Indemnification by LightCMS. LightCMS shall defend Developer from and against any claim by a third party alleging that the LightCMS Service when made available for sale as authorized under this Agreement infringes a U.S. copyright or U.S. trademark and shall indemnify and hold harmless Developer from and against any damages and costs awarded against Developer or agreed in settlement by LightCMS (including reasonable attorneys’ fees) resulting from such claim, provided that LightCMS shall have received from Developer: (i) prompt written notice of such claim (but in any event notice in sufficient time for LightCMS to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Developer. If the LightCMS Service is, or in LightCMS’s opinion is likely to be, enjoined, if required by settlement or if LightCMS determines such actions are reasonably necessary to avoid material liability, LightCMS may, in its sole discretion: (a) substitute for the LightCMS Service with substantially functionally similar products or services; (b) procure for Developer the right to continue reselling the LightCMS Service; or (c) terminate this Agreement and refund to Developer the amounts, if any, paid by Developer under Order Forms for portions of the LightCMS Service which will not be provided by LightCMS. The foregoing obligations of LightCMS shall not apply: (1)if the LightCMS Service is modified by any party other than LightCMS, but solely to the extent the alleged infringement is caused by such modification; (2)if the LightCMS Service is combined with other non-LightCMS products or processes, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the LightCMS Service; (4) to any third-party deliverables or components contained within the LightCMS Service; or (5) if Developer settles or makes any admissions with respect to a claim without LightCMS’s prior written consent. THIS SECTION 10 SETS FORTH LIGHTCMS’S SOLE LIABILITY AND Developer’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

11. Confidential Information.

“Confidential Information” means: (a) all electronic data or information submitted to and stored in the LightCMS Service by Developer, (b) the terms of this Agreement and (c) any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this Agreement, that: (i) in the case of information in tangible form, is marked “confidential” or “proprietary;” (ii) in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten (10) days following disclosure; (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; and (iv) will include any reproduction of such information in any form or medium, or any part of such information. The following shall not be deemed Confidential Information: (1) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party; (2) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a third party without restriction; (4) information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information; and (5) aggregate data collected or generated by LightCMS or on behalf of LightCMS regarding LightCMS’s products and services (for purposes of providing or improving LightCMS’s products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personally identifiable or Developer-specific information.

Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Developer. Either party may disclose Confidential Information on a need to know basis to its affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this section. Additionally, Developer must input credit card information and social security numbers only in the fields designated for such data in the LightCMS Service. Nothing in this Agreement will prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.

12. Export Compliance. In its use and other activities related to the LightCMS Service, Developer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Developer represents and warrants that it is not, and that it will not market the LightCMS Service to any party that is, listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) Developer shall not (and shall not permit any Website Users to) access or use the LightCMS Service in violation of any U.S. export embargo, prohibition or restriction.

13. General

13.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. LightCMS may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of LightCMS’s assets or voting securities. Developer may not assign or transfer this Agreement, in whole or in part, without LightCMS’s prior written consent. Any attempt by Developer to transfer or assign this Agreement without such written consent will be null and void.

13.2 Modifications to Agreement or Fees. LightCMS may update or revise this Agreement or change the Fees for the LightCMS Service from time-to-time. LightCMS will notify Developer of such modifications pursuant to Section 13.6 (Notices). Any such modifications will be effective as of the date of such notice.If Developer does not agree to the modified Agreement, its sole remedy will be to choose not to renew its Account, in which case the post-termination procedures in Section 6.3 (Effect of Expiration or Termination) will apply.

13.3 Dispute Resolution Each party agrees thatbe­fore it seeks mediation, arbitration, or any other form of legal relief it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of any contract between the parties and which are allegedly being breached). Within thirty days after such notice knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.

(a) Mediation. Except as provided herein, any and all disputes, claims or controversies (“Disputes”) arising out of or relating to this Agreement shall be submitted to JAMS for mediation before arbitration or any other form of legal relief may be instituted. Mediation may be commenced by a party providing JAMS a written request for mediation setting forth the subject of the Dispute and the relief requested. The parties will cooperate with JAMS in selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation. The mediator shall be a retired judge who has had experience with technology disputes. The parties agree that they will participate in the mediation in good faith and share equally in its costs. The mediation shall take place in either San Francisco or Santa Clara County, California.

(b) Arbitration. Except as provided herein, any Dispute arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in either San Francisco or Santa Clara County, California and before a single arbitrator. The arbitrator selected shall be a retired judge who has had experience with technology disputes. In any arbitration arising out of or related to this Agreement, the parties agree the arbitrator is not empowered to award punitive or exemplary damages, and the parties waive any right to recover any such damages. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures if the amount in dispute exceeds $250,000 USD and its JAMS Streamlined Arbitration Rules and Procedures when lesser amounts are in issue. The arbitrator shall issue a written reasoned decision. Each party shall bear their own costs in connection with the arbitration, although the arbitrator shall award the prevailing party its reasonable costs and attorneys’ fees.

13.4 Governing Law; Jurisdiction and Venue. This Agreement and all related actions and proceedings shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. If the subject matter of a dispute does not permit the parties to use the dispute resolution procedures set forth in this Agreement or such dispute resolution procedures are deemed unenforceable, the jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in San Mateo or San Francisco County, California, and both parties hereby submit to the personal jurisdiction of such courts.

13.5 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

13.6 Notices. Developer agrees to accept emails from LightCMS at the e-mail address on file with LightCMS. LightCMS may provide any and all notices, statements, and other communications to Developer through either e-mail, posting on the LightCMS blog at http://www.lightcms.com/blog (or other electronic transmission) or by mail or express delivery service. Upon Account setup, Developer may further designate additional contacts for various types of notices. LightCMS recommends that the main and billing contact email addresses be group addresses (such as billing@developer.com) so that notices are reviewed promptly and not delayed due to the absence of one individual. In addition, LightCMS may rely and act on all information and instructions provided to LightCMS from the above-specified e-mail address. All notices to LightCMS shall be sent to legalnotices@netsuite.com.

13.7 Entire Agreement. This Agreement and any Order Form(s) are the complete and exclusive statements of the mutual understandings of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or in any other business form employed by Developer will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

13.8 Amendments; Waivers. Except as may be otherwise expressly set forth herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. 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.

13.9 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

13.10 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of Developership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

13.11 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency, insofar as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.

13.12 Government End-Users. The LightCMS Service is a commercial software-as-a-service product. If the user of the LightCMS Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the LightCMS Service, or any related Documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The LightCMS Service was developed fully at private expense. All other use is prohibited.

13.13 No Third-Party Beneficiaries. No third party (including any Website User) will be deemed to be an intended or unintended third party beneficiary of this Agreement.

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