This Terms of Service (this “Agreement”) is entered into by and between Oracle America, Inc. (“we” or “Oracle”) and the entity or person placing an order for the LightCMS Service (as defined below) (“you” or “Customer”). This Agreement permits you to place orders for the LightCMS Service and sets forth the terms and conditions governing provision and use of the LightCMS Service.
Each party expressly agrees that this Agreement is legally binding upon it. If you are 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.
“Content” means any and all content, images, graphics, photos, video, digital media, brand features, logos, trademarks, service marks, written text, copy or similar materials.
“Customer Data” means, collectively, Service Data and Visitor Data.
“Documentation” means the user guides and account guides generally made available by Oracle.
“Effective Date” is the earlier of (a) Customer’s initial access to the LightCMS Service through any online provisioning, registration or order process (including for any Trial Subscription) or (b) the effective date of the first Order Form referencing this Agreement.
“Order Form” means: (i) an online registration page or order form for the LightCMS Service that references this Agreement or (ii) an Oracle renewal notification or order form executed by you and accepted by Oracle that references this Agreement.
“LightCMS Service” means Oracle’s on-line website management service as specified in the applicable Order Form, as may be updated or modified by Oracle from time to time (but excluding any Third Party Tools). The LightCMS Templates are included in the term LightCMS Service.
“LightCMS Templates” means Oracle-owned website design templates made available to Customers from time to time.
“Service Data” means any Content or business information that you or your Users submit to or store on the LightCMS Service.
"Subscription Fees" means the applicable standard recurring subscription fee for the LightCMS Service set forth on the Order Form or at http://www.lightcms.com/pricing (or other URL provided or re-directed by Oracle) (the “Pricing Page”).
“Subscription Term” means a monthly subscription term (subject to automatic renewal as described in Section 15(a)), unless another term is specified in the applicable Order Form.
“Third Party Tools” has the meaning given in Section 10(c).
“Users” means individuals who are authorized by Customer to access and use the LightCMS Service on Customer’s behalf, pursuant to this Agreement or as otherwise defined, restricted or limited in an Order Form or amendment to this Agreement, and who have been supplied user identifications and passwords by Customer (or by Oracle at Customer’s request).
“Usage Limits” means the applicable scope of use limitations (e.g., on pages, storage, bandwidth, products and/or Users) or restrictions on functionality set forth on the Order Form, this Agreement or through the LightCMS Service, including the Pricing Page. Regarding storage, we may enforce a maximum file size of 40MB for all plans (including Unlimited plans). Regarding bandwidth, we will consider your 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 our other remedies, you acknowledge that Oracle 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 Oracle account.
“Visitor” means a visitor to your Website.
“Visitor Data” means any Content or other information or data of any type that any of your Visitors submits to or stores on your Websites or that you collect from Visitors via your Websites.
“Website” means a website that you (or your Users) design, create and/or operate and that is hosted on the LightCMS Service.
Introduction to Service. The LightCMS Service is designed to enable you to create and operate your Website. You may create your Website using (a) your own Content and (b) LightCMS Templates. Once you launch your Website, Visitors may interact with your Website and submit (or you may collect) Visitor Data, as further described in Section 10 (Your Obligations).
Access to Service. During the Term and subject to your compliance with this Agreement, including your payment of applicable fees, your Users may access and use the LightCMS Service solely to create and operate your own Websites in accordance with the Documentation.
Restrictions. You agree not to: (i) use the LightCMS Service except as expressly authorized in this Agreement and your Order Form; (ii) use the LightCMS Service in excess of the Usage Limits; (iii) use any device, software, or routine that (a) interferes with any application, function, or use of the LightCMS Service, or (b) is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; (iv) outsource, rent, resell, sublicense, time-share, or otherwise share the LightCMS Service with any third party, including service bureau use; (v) frame or mirror the login page for the LightCMS Service; (vi) copy, translate, create a derivative work of, decompile, disassemble or reverse-engineer the underlying software that is part of the LightCMS Service or otherwise attempt to derive its source code; (vi) use the LightCMS Service either directly or indirectly to support any activity that is illegal; (vii) access the LightCMS Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (viii) use the Service for the purpose of building a similar or competitive product or service; (ix) use the Service in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (x) publish, post, upload or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (xi) authorize any third parties to do any of the above.
Acceptable Use Policy. You must be 18 years or older to use the LightCMS Service. You agree not to engage in any of the following prohibited activities in connection with the LightCMS Service: (i) using the LightCMS Service for file storage or sharing purposes (other than incidentally to support your Website’s other functionality as permitted in the Documentation); (ii) transmitting spam, chain letters, or other unsolicited email; (iii) transmitting, storing or using invalid data, viruses, worms, or other software agents; (iv) transmitting, storing or using Customer Data that is harmful, threatening, defamatory, sexually explicit, pornographic, obscene or that violates any applicable laws or regulations; (v) harming or exploiting minors in any manner; (vi) obtaining unauthorized access to any other customer’s account to the LightCMS Service; or (vii) impersonating another person, misrepresenting your affiliation with a person or entity, conducting fraud or hiding or attempting to hide your identity. LightCMS may, but is not obligated to, monitor Websites and Customer Data for compliance with this Section 5 and (in addition to its other suspension and termination rights hereunder) may take-down Customer Data from your Websites that does not comply with this Section 5.
Trial Subscriptions. If you receive free access or a trial or evaluation subscription to the LightCMS Service (a “Trial Subscription”), then you may use the LightCMS Service in accordance with this Agreement for the period designated in the Order Form or otherwise in writing by Oracle (and if not designated, then for fourteen (14) days) (“Trial Period”). Trial Subscriptions are permitted solely for your trial use to determine whether to procure a subscription to the LightCMS Service. Your Trial Subscription and your access to the LightCMS Service will automatically terminate upon expiration of the Trial Period. During the Trial Period, you will have the option to procure a full subscription to the LightCMS Service. If you procure a paid subscription, all of the terms and conditions in this Agreement will apply to such subscription and the associated use of the LightCMS Service. Oracle has the right to terminate a Trial Subscription at any time for any reason.
Fees and Payment.
Fees and Payment Terms. All fees payable are due within 30 days from the invoice date unless otherwise specified in your Order Form. You will be charged the applicable Subscription Fee in advance of your Subscription Term in accordance with the Order Form and this Agreement. You hereby authorize Oracle to automatically charge applicable fees to the credit or debit card on your LightCMS Service account as specified above. All Order Forms are non-cancelable and fees are non-refundable.
Changes to Plan. If you upgrade your LightCMS Service subscription, your Subscription Fees will be adjusted to reflect such changes and you will be immediately charged the updated Subscription Fees at the date of such upgrade (prorated for partial Subscription Terms) and in the full amount upon the date of your next renewal Subscription Term. If you downgrade your LightCMS Service subscription, the downgrade will take effect upon your next renewal Subscription Term and your Subscription Fees during the current Subscription Term will remain unmodified.
- Taxes. Oracle’s 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"). You are responsible for paying all Taxes, excluding only taxes based on Oracle's net income. You are responsible for Taxes based on gross revenues or gross receipts imposed by a foreign tax authority on payments due to Oracle for the LightCMS Service. If Oracle has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Oracle with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Ownership. As between the parties, Oracle and its licensors own and shall retain all right, title and interest (including any and all intellectual property rights which includes, without limitation, all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the LightCMS Service provided or developed by Oracle) in and to the LightCMS Service and the Oracle Marks. Except as provided in this Agreement, Oracle does not grant or convey any rights in the LightCMS Service or Oracle Marks, express or implied, or any intellectual property rights thereto. Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the LightCMS Service, express or implied, or ownership in the LightCMS Service or any intellectual property rights thereto. Customer grants Oracle a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the LightCMS Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the LightCMS Service. Any rights in the LightCMS Service or Oracle’s intellectual property not expressly granted herein by Oracle are reserved by Oracle. “Oracle Marks” means Oracle’s trademarks, product and service names and logos, including LightCMS and the LightCMS logo. Without Oracle's prior permission, you agree not to display or use in any manner, the Oracle Marks. Any rights not expressly granted herein are reserved by Oracle. You may not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing in or on the LightCMS Service as provided.
Ownership of Customer Data and Websites. As between the parties, you shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Oracle, excluding any LightCMS Templates or other Oracle-provided materials embedded or incorporated into your Websites.
Use of Customer Data by Oracle. Customer hereby grants to Oracle a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, distribute, transmit, modify and create derivative works of the Customer Data to the extent necessary to provide the LightCMS Service to Customer and as otherwise permitted in this Agreement. This includes the right to publicly display and perform Customer Data on your Websites (and derivative works and modifications thereof) as you or your Users or Visitors direct or enable through the LightCMS Service and, if you have chosen to enable Third Party Tools, includes the right for Oracle to share or transmit Customer Data with or to Third Party Tools. Customer acknowledges and agrees that in connection with the provision of the LightCMS Service, Oracle may store and maintain Customer Data for a period of time consistent with Oracle’s standard business processes for the LightCMS Service. Following expiration or termination of the Customer Order Form or a Customer account Oracle may deactivate the applicable Customer account(s) and delete any data therein.
Responsibility for Customer Data and Websites. You are solely responsible and liable for your Websites and all Customer Data collected, used, disclosed and/or displayed therewith. Without limiting your other obligations in Section 10, you represent and warrant that: (i) all necessary rights, releases and permissions have been obtained (including without limitation from Users, Visitors, any third party owners or licensors of the Customer Data and Third Party Tool providers) for you to create and operate your Websites and to use, submit and allow the collection of Customer Data for the purposes contemplated in this Agreement and (ii) the Websites and Customer Data (and their use or collection hereunder) will not infringe any intellectual property rights, rights of privacy, rights of publicity or applicable laws. Subject to this Agreement, you will control access to and management of your Websites and Customer Data, including access by providers of Third Party Tools.
(d) In order to protect Customer Data Provided to Oracle as part of the performing provision of the LightCMS Service, Oracle will comply with the following:
2. the applicable administrative, physical, technical and other safeguards, and other applicable aspects of system and content management, available at http://www.oracle.com/us/corporate/contracts/index.html..
(f) Without prejudice to Sections 9(d) and 9(e) above, you are responsible for (i) any required notices, consents and/or authorizations related to your provision of, and our processing of, Customer Data, including any Personal Data, as part of the LightCMS Service; (ii) any security vulnerabilities, and the consequences of such vulnerabilities, arising from Customer Data, including any viruses, Trojan horses, worms or other harmful programming routines contained in Company Data; and (iii) , or from your use of the LightCMS Service in a manner that is inconsistent with the terms of this Terms of Service. To the extent you may disclose or transfer Customer Data to a third party, and upon such disclosure or transfer, we are no longer responsible for the security, integrity or confidentiality of such content outside of Oracle’s control.
Accounts, Information and Systems. You are responsible for compliance of your Users with this Agreement and for all activity occurring under your User accounts. You will: (i) maintain the accuracy and completeness of the registration, payment and other information you provide to us; and (ii) keep your login credentials for the LightCMS Service confidential and notify Oracle immediately of any unauthorized use of your credentials or account or any other known or suspected breach of security. User log-in credentials are for individual, named Users and cannot be shared or used concurrently or by more than one User. You also agree to ensure that your Users exit from their accounts to the LightCMS Service at the end of each session. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other equipment and services needed for access to the LightCMS Service. You are also responsible for obtaining and maintaining your own domain registrations for your Websites.
Third Party Tools. The LightCMS Service may permit use or connection of your Websites with third party tools or services, such as email services, analytics services and payment gateways or processing services (“Third Party Tools”). You are solely responsible for (1) selecting, procuring and enabling any Third Party Tools and paying all applicable fees to the third party providers; and (2) for selecting which Customer Data (including Visitor Data) to make available for sharing with or transmission to Third Party Tools. Oracle does not warrant any such Third Party Tools, regardless of whether or not such Third Party Tools are provided by a third party that is a member of a Oracle partner program or otherwise designated by Oracle as “Built For NetSuite,” "certified," "approved" or “recommended.” Any procurement by Customer of such Third Party Tools or services is solely between Customer and the applicable third party provider. Customer may not use Third Party Tools to enter and/or submit transactions to be processed and/or stored in the LightCMS Service, unless Customer has procured the applicable subscription to the LightCMS Service for such use and access. From time to time in Oracle’s sole discretion, Oracle may limit, substitute, change or eliminate any Third Party Tools available through, compatible with or used in conjunction with the LightCMS Service without liability and with or without notice to you.
Compliance with Laws. You must abide by all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with your Websites, Customer Data and your use of the LightCMS Service, including those related to United States and other applicable export regulations, data privacy, international communications, anti-spam legislation and the transmission of technical or personal data. Neither the LightCMS Service nor the data accessed on the LightCMS Service may be exported or re-exported directly or indirectly by you or your Users or Visitors in violation of any such export laws or used for any purposes prohibited by such export laws. You shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the LightCMS Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) you represent that Customer is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) you shall not permit Users to access or use the LightCMS Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) you shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located.
Sensitive Data. In addition to Customer's other obligations set forth herein, Customer specifically acknowledges and agrees that: (i) Oracle is not acting on your (or your Visitors’) behalf as a Business Associate or subcontractor; and (ii) Customer (and its Visitors) may not store, process or transmit protected health information (“PHI”) using the LightCMS Service or otherwise use the LightCMS Service in any manner that would require Oracle or the LightCMS Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”). In the preceding sentence, the terms “Business Associate or subcontractor” and “personal health information” or “PHI” have the meanings described in HIPAA. You further agree not to (and not to permit Visitors to) use the LightCMS Service to store, process or submit any social security numbers, payment card information, nonpublic personal information (as defined and used under the Gramm-Leach-Blilely Act and related rules and regulations), or other sensitive financial or personal information, excluding only payment card information submitted to Third Party Tools in accordance with your applicable agreements with Third Party Tool providers. Without limiting the generality of Section 10(b) (Relationships with Visitors), you are responsible for ensuring that your Visitors are aware of and comply with the restrictions in this Section 10(e) (Sensitive Data).
Oracle Responsibilities. Oracle will use Customer Data solely to exercise its rights and perform its obligations in providing the LightCMS Service pursuant to this Agreement and as permitted in Section 14 (Usage Data; Independent Data). Without limiting the generality of the foregoing, Oracle may access your account and Customer Data as necessary to provide you with support, verify whether your Websites have launched and determine the recurring Subscription Fees due to Oracle or in order to respond to complaints about the LightCMS Service. Notwithstanding any other provision of this Agreement and in addition to Oracle’s other rights to make available Customer Data in Section 9(b), Oracle may disclose Customer Data if we determine that such action is reasonably necessary: (a) to comply with the law, regulatory requirements, or legal or regulatory process; (b) to enforce this Agreement; (c) to respond to claims that you are using the LightCMS Service to perform or support activities that violate the law or the rights of third parties; or (d) to our contractors, infrastructure and service providers who assist us in providing, supporting, optimizing and protecting the LightCMS Service (including without limitation by disclosing Visitor Data to security, anti-fraud and anti-spam vendors). Oracle may also disclose Customer Data as otherwise directed or enabled by you or your Users.
LightCMS Service Support. Oracle uses commercially reasonable efforts to provide: (a) self-serve web-based support at http://help.lightcms.com/ and (b) email responses to support inquiries, in each case subject to any applicable Oracle support policies. Oracle support does not cover (and Oracle is not responsible for) issues arising from: (i) your equipment, software, network connections or other infrastructure; (ii) use of the LightCMS Service by you in a manner not consistent with its documentation; (iii) modifications to the LightCMS Service by any party other than Oracle; or (iv) third party acts, services or systems. You acknowledge that Oracle may not be able to resolve all support requests. Support is not available for Trial Subscriptions.
Scheduled Downtime. Oracle will use commercially reasonable efforts to pre-announce any scheduled downtime associated with upgrades and maintenance to the LightCMS Service at http://status.lightcms.com/ (or through other means as described in Section 22 (Notices)).
Usage Data; Independent Data. Oracle may maintain certain usage information about you or Visitors, including duration and frequency of your use of the LightCMS Service or Visitors’ use of your Websites, the pages viewed and searches performed, and other similar usage data (collectively “Usage Data”). Usage Data may also include aggregated Customer Data. Oracle may use Usage Data to operate and improve the LightCMS Service; for promotion, statistical analysis, market analysis, financial analysis and similar purposes; and for its other lawful business purposes. Oracle may disclose Usage Data to third parties in aggregate form (e.g., data aggregated from your and other customers’ use of the LightCMS Service, but that does not identify you or any other customer). Nothing in this Agreement limits Oracle from collecting or using content or data from sources other than Customer, even when such data relates to individuals who are Visitors or is otherwise similar to Customer Data.
Term and Termination.
This Agreement is effective on the Effective Date and will continue in effect until expiration of all of your Subscription Terms (collectively, the “Term”), unless terminated earlier pursuant to this Agreement. Unless otherwise specified on your Order Form and except for non-converting Trial Subscriptions, all Subscription Terms will automatically renew for successive renewal terms of equal length to the initial Subscription Term, unless (i) you properly terminate your subscription by disabling your account from within the LightCMS Service (or as otherwise directed by Oracle in writing) prior to the expiration of the then-current Subscription Term or (ii) Oracle notifies you prior to the renewal date that your Subscription Term will not renew.
Without limiting any other remedies available to it, Oracle may immediately suspend access to the LightCMS Service and/or terminate this Agreement (including all active subscriptions) if: (i) you violate Section 5 (Acceptable Use Policy) or provide false or misleading registration information to Oracle; (ii) you breach any other material provision of this Agreement (including without limitation terms regarding Usage Limits) that, if it is capable of being cured, is not cured within ten (10) days from notice to you; (iii) Oracle reasonably concludes that the LightCMS Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or your use of the LightCMS Service is causing immediate, material and ongoing harm to Oracle or others; or (iv) Oracle determines that your actions are likely to cause legal liability for its suppliers or other customers. Any suspension under this section shall not excuse Customer from Customer’s obligation to make payments under this Agreement.
Upon any expiration or termination of this Agreement, or upon expiration of the applicable Subscription Term, the rights granted to you hereunder will automatically terminate, and you may not continue to use the LightCMS Service. Oracle will have no liability for any costs, losses, damages, or liabilities arising out of or related to termination of this Agreement. Except as otherwise expressly provided in this Agreement, Oracle may permanently delete all Customer Data and your Websites after 370 days following termination or expiration of this Agreement. Oracle will not be liable in any way to you for any termination or suspension of access to the LightCMS Service or Customer Data or deletion of the Customer Data in accordance with this Agreement. The provisions of Sections 1 (Definitions), 7 (Fees and Payment), 8 (Ownership), 14 (Usage Data; Independent Data), 15 (Term and Termination), 17 (Confidentiality), 18 (No Warranty), 19 (Indemnity) (as set forth therein), 20 (Limitations of Liability) and 25 (General) will survive termination or expiration of this Agreement.
DMCA and Takedowns. As between the parties and without limiting Customer’s indemnification and other obligations in this Agreement, Customer is responsible for addressing all claims and incidents of alleged infringement by the Websites (including any Customer Data made available through the Websites), including by handling and processing notices of alleged infringement and requests to take down infringing content in accordance with the Digital Millennium Copyright Act (or any successors thereto or similar laws in foreign jurisdictions) (“DMCA”). Customer shall promptly notify Oracle if it becomes aware of any such notices or takedown requests. Notwithstanding the foregoing, without limiting Oracle’s other rights and remedies hereunder, Oracle reserves the right (without liability to Customer) to (i) respond to any DMCA notices it receives and take down allegedly infringing Customer Data and suspend service to Websites in accordance with its DMCA notice and takedown policies and (ii) to suspend or terminate this Agreement or access to the LightCMS Service for repeat infringers.
Confidentiality. For purposes of this Agreement, “Confidential Information” means: (a) all electronic data or information submitted to and stored in the LightCMS Service by Customer; (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.
Notwithstanding the foregoing, the following shall not be 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 Oracle or on behalf of Oracle regarding Oracle’s products and services (for purposes of providing or improving Oracle products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personally identifiable or Customer-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 Customer. 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 17. Additionally, Customer must input credit card information and social security numbers only in the fields designated for such data in the Service. Either party may disclose Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
No Warranty. The LightCMS Service is provided “AS IS” and the entire risk as to satisfactory performance, accuracy, and effort is with you. Oracle and its suppliers do not warrant that the operation of the LightCMS Service will be error free or uninterrupted. ORACLE AND ITS SUPPLIERS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
By Oracle. Oracle shall, at its own expense and subject to the limitations set forth in this Section 19, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the LightCMS Service, as provided by Oracle and used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall indemnify the customer from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the LightCMS Service in violation of this Agreement or applicable law, (b) use of the LightCMS Service after Oracle notifies Customer to discontinue use because of an infringement claim, (c) modifications to the LightCMS Service not made by Oracle, or (d) use of the LightCMS Service in combination with any software, application or service made or provided other than by Oracle.
If such an infringement Claim is brought or threatened (or if Oracle believes such a circumstance likely), Oracle may, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will allow Customer to continue using the LightCMS Service without additional cost to Customer; (b) to modify or replace all or portions of the LightCMS Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate this Agreement and refund to the Customer a pro-rata refund of the Subscription Fees paid under this Agreement for the terminated portion of the Term. This Section 19(a) states Oracle’s entire liability, and Customer's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party relating to the LightCMS Service.
By Customer. Customer shall, at its own expense, defend Oracle from and against any and all Claims (which may include, without limitation, Claims from Visitors) arising from or related to (i) any Customer Data or Websites (excluding underlying elements of the LightCMS Service), (ii) Customer’s breach or alleged breach of this Agreement, (iii) any service or product offered by Customer in connection with or related to the Websites or (iv) any interaction of Visitors with the Websites, violations of the Visitor Agreement or disputes with Visitors, and shall indemnify Oracle from and against liability for any Losses to the extent based upon such Claims.
Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 19, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 19 are expressly conditioned upon the indemnified party’s compliance with this subsection (c) except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 19 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 19 shall survive termination of this Agreement for one (1) year.
Limitations of Liability. IN NO EVENT SHALL ORACLE’S (OR ITS AFFILIATES’) AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO ORACLE FOR THE LIGHTCMS SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE. IN NO EVENT SHALL ORACLE AND/OR ITS AFFILIATES OR LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE LIGHTCMS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE LIGHTCMS SERVICE, OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE LIGHTCMS SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF ORACLE (OR ANY OF ITS AFFILIATES OR LICENSORS) HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Modifications; Discontinuation of LightCMS Service.
Modifications to the Service. Oracle may make modifications to the LightCMS Service or particular components of the LightCMS Service (including discontinuing specific functionality) from time to time and will use commercially reasonable efforts to provide its customers with notice of any material modifications via the Oracle blog (at http://www.lightcms.com/blog) or through other means as described in Section 22 (Notices). Oracle reserves the right to discontinue offering the LightCMS Service at the conclusion of your then-current Subscription Term. Oracle shall not be liable to you nor to any third party for any modification or discontinuance of the LightCMS Service as described in this Section 21.
Modifications to Agreement or Fees. Oracle may update or revise this Agreement or change the fees for the LightCMS Service from time-to-time. Oracle will notify you of such modifications pursuant to Section 22 (Notices). Any such modifications will be effective as of the monthly renewal date of your Subscription Term. You may have to click through the modified Agreement to show your acceptance. If you do not agree to the modified Agreement, your sole remedy will be to choose not to renew your account, in which case the post-termination procedures in Section 15(c) will apply.
Notices. Any notice required under this Agreement shall be provided to the other party in writing. If you have a legal dispute with Oracle or if you wish to provide a notice under the Indemnification Section of this Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Oracle America, Inc., 500 Oracle Parkway, Redwood Shores, CA 94065, Attention: General Counsel, Legal Department. In addition to any other means of providing notice identified elsewhere in this Agreement, Oracle may provide any and all notices, statements, and other communications to Customer through either e-mail (at the address provided during registration), posting on the LightCMS Service (or other electronic transmission) or by mail or express delivery service.
Force Majeure. Oracle shall be liable for loss, delay, nonperformance (including Oracle’s failure to provide the LightCMS Service or related support) to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving Oracle employees), or shortage of materials, provided that Oracle uses reasonable efforts, under the circumstances, to notify you of the circumstances causing the delay and to resume performance as soon as possible and any delivery date shall be extended accordingly.
Governing Law & Jurisdiction. This Agreement is governed by the substantive and procedural laws of the State of California and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco or Santa Clara counties in California in any dispute arising out of or relating to this Agreement. The Uniform Computer Information Transactions Act does not apply to this Agreement or to orders placed under it. General. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Except as expressly provided in Section 17 (Confidentiality), there are no third-party beneficiaries to this Agreement (including without limitation Visitors). Nothing in this Agreement shall be construed as (1) limiting Oracle’s express termination, suspension or takedown rights hereunder or (2) preventing either party from seeking injunctive relief to prevent irreparable harm, including without limitation, harm caused by a breach of confidentiality obligations under Section 17 (Confidentiality) or to protect a party’s intellectual property rights. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. You may not assign this Agreement, in whole or in part, without Oracle’s prior written consent; provided however, that you may assign this Agreement without Oracle’s consent, in connection with a merger, acquisition, or sale of all or substantially all of your assets, provided that you provide Oracle with prior notice. Oracle may freely assign, transfer or delegate this Agreement. Any attempt to assign this Agreement other than as permitted above will be null and void. This Agreement and any Order Forms constitute the complete and exclusive understanding and agreement between the parties regarding the Oracle Service and supersede all prior or contemporaneous agreements, emails, or understandings, written or oral, relating to their subject matter, including any different or additional terms and conditions stated by you in connection herewith in a purchase order or otherwise. Except as provided in Section 21(b) (Modifications to Agreement or Fees), any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by a duly authorized representative of the party against whom such provision shall be applied. In the event of a conflict between this Agreement and a valid Order Form signed or accepted by you, the terms shall apply in the following order of precedence: (1) description in an Order Form and (2) this Agreement. This Agreement has been written in the English language. You waive any rights you may have under the law of your country to have this Agreement written in the language of that country.