Terms of Service: Lighthouse
Effective: October 18, 2018.
1.1 Lighthouse.io, operating as Lighthouse.io Inc in The United States and Lighthouse.io Pty Ltd (ABN 35 606 197 086) in Australia, and/or its subsidiaries, successors or assigns (together, the “Company”) is the owner of Lighthouse.io (the “Platform”), a cloud workforce management platform that provides a mobile application and workforce and compliance reporting (the “Software”). Lighthouse.io is provided as a software-as-a-service.
1.2 This Agreement forms an agreement (“Agreement”) between the Company and each User (“User”) of the Software provided by the Company and governs all access to and use of the Software by the User.
1.4 The Company reserves the right at any time to update, modify, improve, change, enhance, or discontinue any part or all of the Software, with or without notice to the User.
1.5 The Company reserves the right to amend this Agreement upon notice to the User and continued use of the Software by the User shall be deemed accepted of those amendments.
1.6 Where there are inconsistencies between this Agreement and the Order Form or Quote, the terms in the Order Form or Quote shall prevail.
2. SAAS LICENSE
2.1 Subject to payment of all Fee & Charges and compliance with the terms and conditions of this Agreement, the SAAS License (the “License”) grants the User a revocable, limited, non-transferable, non-assignable and non-exclusive licence to make use of the Software for the duration of this Agreement, in accordance with the following terms and conditions.
2.2 The User must implement adequate controls to ensure that it complies with the terms and conditions of this Agreement.
2.3 The User shall not copy, modify, distribute, sublicense, disclose, market, rent, lease, or offer remote computing services, networking, batch processing or transfer of, the Software or Item to any third party, or permit any person or entity to have access to the Software or Item by means of a time sharing, remote computing services, networking, batch processing, service bureau or time sharing arrangement.
3. CONDITIONS OF USE
3.1 The User agrees that it shall only use the Software and/or Item for legal purposes and shall:
3.1.1 not engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
3.1.2 not use the Software and/or Item in any manner inconsistent with this Agreement;
3.1.3 not act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Software and/or Item or any operating system;
3.1.4 not infringe our intellectual property rights or those of any third party in relation to your use of the Software and/or Item;
3.1.5 not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Software and/or Item;
3.1.6 not use the Software and/or Item in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
3.1.7 not collect or harvest any information or data from the Software, Item or our systems or attempt to decipher any transmissions to or from the servers running any Software.
4.1 License Fees
4.1.1 License Fees are charged on a per User (“User”) basis in advance or as otherwise agreed upon with the Company in writing.
4.1.2 License Subscription Type, Fees, Discounts and other associated Purchase Terms will be detailed in the Order Form or Quote.
4.2 Hardware Fees
4.2.1 If hardware is required Users pay a one-time hardware purchase fee at the beginning of the contract. Hardware fees will be detailed in the Order Form or Quote.
4.2.2 Hardware is purchased outright by User.
4.2.3 For the purposes of this Agreement, “Hardware” includes any device required to use or support the Software, including, without limitation, Bluetooth beacons, mobile devices (e.g. mobile phones, tablets, etc.), phone cases, installation equipment and other radio devices and computers.
4.3 Implementation and Service Fees
4.3.1 The Company provides implementation, testing, training and other related services. Fees for such services are based on a standard daily rate of $1,000 USD per day unless otherwise agreed in writing.
4.3.2 The User agrees to pay all Fees & Charges in the manner as directed by the Company, at the time they are required and as a condition of using the Software and/or Item.
4.3.3 The Company may change any Fees & Charges at any time at its absolute discretion. These changes will be notified and become effective when the User next makes a payment in relation to the Software and/or Item.
4.3.4 The Company may revoke or suspend the User’s licence to access the Software and/or Item for unpaid Fees & Charges without liability. The Company will provide the User 30 days to rectify the unpaid Fees & Charges before revoking or suspending the Service.
5. AUTHORIZING OTHER USERS (WARRANTIES AND REPRESENTATIONS)
5.1 The User may authorize employees, agents and service providers (the “Service Provider” or “Service Providers”) to access the Software in its absolute discretion.
5.2 The Software may tracks and gather sensitive location and non-public personal information about its Users.
5.3 By authorizing Service Providers to access the Software, User warrants and represents that:
5.3.1 Service Providers have consented to the collection and analysis of their location and non-public personal information;
5.3.3 Service Providers are at least 18 years of age and/or a legal entity capable of forming binding contracts.
5.4 If the User is collecting, or has authorized a Service Provider to collect, any information from minors under 18, including children under 13, the User warrants and represents that it, or the Authorised Service Provider on its behalf, has obtained verifiable parental consent in writing.
5.5 The User is solely responsible for the security of its Username and password for access to the Software.
6.1 Contract Term. This License Agreement shall have a fixed term of 12 months from the Commencement Date unless otherwise agreed upon in writing between the parties.
6.2 Rollover Term. At the end of the Initial Term this Agreement shall automatically roll over for an additional 12 months unless validly terminated.
6.3 The License Fees may increase at this time.
6.4 User will be notified 30 days in advance of any increase in price and will have the opportunity to either opt-in or terminate the Service.
7.1 User may terminate this Agreement by giving written notice at any time up to thirty (30) days before the end of the Contract Term.
7.2 There will be no refund for early termination of the Agreement.
8. DATA USE & STORAGE
8.1 The Company will store data for seven (7) years after the date of data generation unless the agreement is terminated at which time the User will have the option to export the data generated up until that date.
8.2 Should a User require longer data storage, it should notify the Company at least sixty (60) days before the end of the seven (7) year term for data storage.
8.3 Company does not acquire ownership rights in any data. However, every User grants Company and its authorized sub-licensees and distributors, a worldwide, non-exclusive, royalty-free, right and license to use all data generated through the Software for statistical analysis, benchmarking, and other improvements to the Service.
8.4 The Company will delete all stored data as soon as possible after a User terminates its License. The user will have the opportunity to export the data before it is deleted.
9. ACCESS & USE
9.1 The Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Software.
9.2 The User may authorise users to access the Software in its absolute discretion. The Company accepts no liability for access by users authorised by the User or using login details of users authorised by the User.
9.3 The User is responsible for ensuring that users authorised to use the Software comply with this Agreement in full and are liable for any breach by them.
9.4 The Company reserves the right to audit the User’s use of the Software during normal business hours and with reasonable notice and to include means within the Software to limit the User’s use of the Software to the licensed number of Servers.
10. INTELLECTUAL PROPERTY
10.1 User acknowledges that the Company retains ownership of all Intellectual Property of the Company incorporated in the Software (including all improvements, enhancements, updates and corrections) and any Intellectual Property generated by the Company in the process of providing the Software.
10.2 The User may use software, proprietary systems and Intellectual Property owned by the Company, or for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trade marks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not knowingly infringe on any third-party rights through the use of the Software.
10.3 The User agrees and accepts that any Intellectual Property generated by the User in connection with the Software is owned absolutely by the Company and vests in the Company immediately, including:
10.3.1 any text, images, graphics, source code, usage data, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Software.
10.4 The User further warrants that by using the Software the User will not:
10.4.1 use any Intellectual Property of the Company without express permission;
10.4.2 copy any part of the Software for the User’s own commercial purposes; or
10.4.3 directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in any documentation associated with it.
10.5 To the extent that any derivative works cannot be assigned to the Company, the User hereby grants the Company a perpetual and irrevocable (irrespective of the expiration or termination of this Agreement), non-exclusive, transferable, worldwide, and royalty-free licence to reproduce, distribute, perform, and display any derivative works of the Software developed by or for the User, and to use, make, have made, sell, offer to sell, import, export, and otherwise exploit any product based on any such derivative works.
11. LIABILITY & INDEMNITY
11.1 THE USER AGREES THAT IT USES THE SOFTWARE AND HARDWARE ENTIRELY AT ITS OWN RISK.
11.2 User acknowledges use of Software requires a modern browser such as, without limitation, Internet Explorer 10, Firefox 20, Safari 5 or Google Chrome 30, and a stable connection to the Internet. The Software may work in a limited manner on other web browsers (such as earlier versions of the previously mentioned browsers), but Software was not designed for use on web browsers other than those recommended above.
11.3 USER ACKNOWLEDGES THAT THE COMPANY IS NOT RESPONSIBLE IN ANY WAY FOR MAINTAINING, SECURING, UPDATING, CHARGING OR REPLACING HARDWARE, OR COMPONENTS OF HARDWARE. USER ACKNOWLEDGES THAT THE COMPANY IS NOT RESPONSIBLE IN ANY WAY FOR FIRE, THEFT, DAMAGE OR ANY LIABILITIES ARISING FROM THE HARDWARE.
11.4 USER ACKNOWLEDGES THAT THE COMPANY IS NOT RESPONSIBLE FOR ANY DAMAGE CAUSED DURING PREPARATION, INSTALLATION OR TESTING OF ANY SOFTWARE, HARDWARE AND/OR BEACON DEVICES THROUGHOUT A FACILITY, EXCEPT TO THE EXTENT THAT THE COMPANY NEGLIGENTLY OR DELIBERATELY CAUSED SUCH DAMAGE.
11.5 USER ACKNOWLEDGES THAT THE COMPANY DOES NOT GUARANTEE THE ACCURACY OF DATA CAPTURED THROUGH ITS SOFTWARE. THE COMPANY IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING FROM THE CAPTURE, ANALYSIS, OR INTEGRITY OF THE DATA IN ANY CIRCUMSTANCES.
11.6 THE USER AGREES TO INDEMNIFY THE COMPANY FOR ANY LOSS, DAMAGE, COST OR EXPENSE THAT THE COMPANY MAY SUFFER OR INCUR AS A RESULT OF OR IN CONNECTION WITH THE USER’S USE OF OR CONDUCT IN CONNECTION WITH THE SOFTWARE AND/OR ITEM, INCLUDING ANY BREACH BY THE USER OF THIS AGREEMENT.
11.7 IN NO CIRCUMSTANCES WILL THE COMPANY BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS, OR ANY OTHER SIMILAR OR ANALOGOUS LOSS RESULTING FROM THE CLIENT’S ACCESS TO, OR USE OF, OR INABILITY TO USE THE SERVICES OR THE PROJECT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, IN EQUITY OR ANY OTHER LEGAL THEORY.
11.8 TO THE EXTENT PERMITTED BY LAW, THE COMPANY’S LIABILITY FOR BREACH OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE SERVICES OR THE PROJECT, INCLUDING ANY IMPLIED WARRANTY OR CONDITION THAT CANNOT BE EXCLUDED, IS RESTRICTED AT THE COMPANY’S OPTION TO THE RE-SUPPLY OF SERVICES, OR PAYMENT OF THE COST OF RE-SUPPLY OF SERVICES (IF APPLICABLE).
11.9 The User acknowledges and agrees that the User is solely responsible for the accuracy, quality and legality of the Content managed using the Software.
11.10 Nothing in this Agreement shall limit or exclude our liability for:
11.10.1 death or personal injury resulting from our gross negligence;
11.10.2 fraud or fraudulent misrepresentation; and
11.10.3 any other liability that cannot by law be excluded or limited.
12 FORCE MAJEURE
12.1 If a party is prevented in whole or in part from carrying out its obligations under this agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
12.1.1 Specify the obligations and the extent to which it cannot perform those obligations;
12.1.2 Fully describe the event of Force Majeure;
12.1.3 Estimate the time during which the Force Majeure will continue; and
12.1.4 Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
12.2 Following a notice of Force Majeure in accordance with clause 12.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended.
12.3 The party that is prevented from carrying out its obligations under this agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
12.4 The party that is prevented from carrying out its obligations under this agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this agreement.
12.5 The term of this agreement will not be extended by the period of Force Majeure.
13. TEMPORARY SERVICE FAILURE
13.1 In the event of a period of more than 12 hours for which the service is inoperable or inaccessible by all Users (“Service Failure”), the Company may issue the User a credit. The credit will be based on the pro-rata portion of the cost of the Service for the period of the Service Failure, as determined by Lighthouse.io in its reasonable discretion. The Company is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation termination of this Agreement. Credits issued are the User’s sole and exclusive remedy for any Service Failure.
14.1 Where a party is in breach of this agreement (including the Platform Terms and Conditions), the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:
14.1.1 The nature of the breach;
14.1.2 The provisions of the agreement that are alleged to have been breached;
14.1.3 A reasonable timeframe to remedy the breach in not less than 30 Business Days; and,
14.1.4 The action required to remedy the breach.
14.2 A Material Breach of this Agreement includes (without limitation) where a party:
14.2.1 Fails to remedy a breach set out in a Breach Notice as required;
14.2.2 Commits a breach of this Agreement which is irremediable;
14.2.3 Acts deceptively or fraudulently in respect to its dealings with the other party.
14.3 User Breach. In the event that the User commits a material breach of this Agreement, the Company may terminate the agreement in whole or in part immediately upon written notice.
14.4 Licensor Breach. In the event that the Company is found to be in breach of this Agreement, it agrees to use all reasonable commercial endeavours to remedy the breach, correct such non-performance or provide the User with an alternative means of accomplishing the desired performance.If the Company is unable to remedy the breach, provide the User with an alternative, or if it is found to be in Material Breach of the Agreement, it will offer a pro-rated refund of the Annual Subscription Fee. This is the User’s sole and exclusive remedy for Licensor Breach.
15. EXPIRATION OR TERMINATION
15.1 Upon expiration or prior termination of the Agreement, all rights granted herein shall revert to the Company. All access to and use of the Service by the User must then cease, and all materials, applications and tools downloaded from the Service must be erased, deleted, or destroyed.
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the User and the Company in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
16.1.1 includes or is accompanied by full and detailed particulars of the Dispute; and
16.1.2 is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
16.2 Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the User and the Company must meet and seek to resolve the Dispute.
16.3 Subject to clause 16.4, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
16.4 Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
16.5 Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
16.6 Arbitration. If the dispute between the parties relating to or arising out of this agreement is not settled by the dispute resolution mechanism above, either party may by written notice to the other refer the dispute to Arbitration administered by an independently appointed arbitrator, pursuant to arbitration laws and process in CA, United States or VIC, Australia.
16.7 Parties to the arbitration shall each pay an equal share of the costs and expenses of such arbitration, except as prohibited by law. Each party shall separately pay for its respective attorneys’ fees and costs.
17. ATTORNEYS FEES
17.1 In the event that either Party breaches any portion of this Agreement, the prevailing Party in an action to enforce this Agreement may recover from the other its reasonable attorneys’ fees and costs, if employment of an attorney was necessary.
18.1 The User can direct notices, enquiries, complaints and so forth to the Company at this address: email@example.com
18.2 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
19.1 The User may only assign or otherwise create an interest in their rights under this Agreement with the written consent of the Company.
19.2 The Company may assign or otherwise create and interest in their rights under this Agreement by giving the User written notice.
20.1 Formation. This Agreement is formed when the User acknowledges their consent to this Agreement, whether done electronically or physically.
20.2 Entire Agreement. This agreement, including all schedules and Appendices constitutes the entire understanding and contract between the Parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings, and agreements between the Parties with respect to the subject matter hereof. The Parties acknowledge and agree that neither of the Parties is entering into this agreement on the basis of any representations or promises not expressly contained herein.
20.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
20.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
20.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
20.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
20.7 Counterparts. This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
20.8 Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
20.9 Governing Law. These Terms, as well as the respective rights and obligations hereunder, shall be governed by and construed and enforced in accordance with the laws of the State of Victoria, Australia without regard to conflict of laws principles. Please note that use of the Platform by any User may be subject to other local, state, national, and international laws. Each User expressly:
20.9.1 Agrees that exclusive jurisdiction for resolving any claim or dispute with the Company relating in any way to use of the Platform resides in either California, United States, or Victoria, Australia.
20.9.2 Agrees and consents to the exclusive personal jurisdiction and venue of the courts located in either California, United States, or Victoria, Australia for any cause of action relating to or arising under these Terms;
20.9.3 Waives any right to a jury trial in any legal proceeding against the Company; and
20.9.4 Agrees to file any cause of action with respect to use of the Platform within one (1) year after the claim arises otherwise the cause shall be forever barred.
20.10 Interpretation. Headings are only for convenience and do not affect interpretation. The following rules apply in this Agreement unless the context requires otherwise:
20.10.1 The singular includes the plural and the opposite also applies.
20.10.2 If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
20.10.3 A reference to a clause refers to clauses in this Agreement.
20.10.4 A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.
20.10.5 Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
20.10.6 A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
20.10.7 A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
20.10.8 A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.