ACCEPTANCE OF TERMS
LightCMS ("LightCMS", "we", or "us") is owned and operated by Element Fusion, LLC ("Element Fusion"). We provide our service to you subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you. You can review the most current version of the TOS at any time at: http://www.lightcms.com/terms-of-service. In addition, when using particular LightCMS services, you and LightCMS shall be subject to any posted guidelines or rules applicable to such services which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.
Acceptance of the TOS is absolute and applies to you as an account owner regardless of the number of websites contained within your account. You, as the LightCMS account owner, are solely responsible for all websites within your account and for each site’s adherence to these Terms of Service.
DESCRIPTION OF SERVICE
LightCMS currently provides you with access to a full-featured website management system (the "Service"). You understand and agree that the Service may include certain communications from us, including but not limited to service announcements, administrative messages and newsletters, billing invoices, and the like, and that these communications are considered part of your LightCMS subscription and you will not be able to opt out of receiving them.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the TOS. You understand and agree that the Service is provided "AS-IS" and that LightCMS assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service or airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Service.
YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Service, you agree to the following:
- You must be 18 years or older.
- You must provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data");
- You must maintain and promptly update the Registration Data to keep it true, accurate, current and complete;
- You must provide true, accurate, current, complete and valid information about your method of payment (such information being the “Account Billing Data”);
- You must provide true, accurate, current, complete and valid information about your clients' methods of payment (such information being the "Client Billing Data");
- You must maintain and promptly update the Account Billing Data and Client Billing Data to keep it true, accurate, current, complete and valid. If you provide any information that is untrue, inaccurate, not current or incomplete, or if we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
Payments for your use of the Service are calculated on a per website basis. Each website under your account that utilizes a paid (not free) website plan, will incur monthly or yearly service charges. Websites that sell products through the store features will also incur transaction fees if the plan requires it. These service charges and transaction fees can be billed to the credit card on file for your LightCMS account (a process known as "Account Billing"), or billed directly to your clients' credit cards (a process known as "Client Billing"). In either case, you understand and agree that you, as the LightCMS account holder, are ultimately responsible for payment for every website under your account.
The following describes LightCMS’s billing practices for all websites utilizing Account Billing under your account:
- Service charges are billed each month or year for the upcoming month’s or year's service, based on the plans of all websites assigned to Account Billing on your account billing date.
- Adding a new website to Account Billing, or upgrading the plan of a website using Account Billing will cause an interim transaction to occur on the date the change is made. The interim transaction will charge your card a pro-rated amount in order to compensate for the change in service charges over the remainder of your billing cycle. Then, at the beginning of your next billing cycle, you will be charged the new amount based on the sites and packages in your account on the billing date.
- Downgrading the plan of a website in your account will not initiate an interim transaction. No refunds will be given for any days remaining in your current billing cycle.
- Transaction fees are billed each month on your account billing date for the previous month's store transactions for all websites assigned to Account Billing whose associated plans require the transaction fee.
The following describes our billing practices for all websites utilizing Client Billing under your account:
- Service charges are billed each month or year for the upcoming month’s or year's service, based on the price that you, as the LightCMS account holder, assign to the client's website. Your price must be greater than or equal to the LightCMS base price for the plan used.
- Upgrading the plan of a website using Client Billing will cause an interim transaction to occur on the date the change is made. The interim transaction will charge the client's card a pro-rated amount in order to compensate for the change in service charges over the remainder of the website's billing cycle. Then, at the beginning of the next billing cycle, the client's card will be charged the new amount based on the plan of the website on the billing date.
- Downgrading the plan of a website will not initiate an interim transaction. No refunds will be given for any days remaining in the current billing cycle.
- Whenever charges are made to a client's card, the portion of the service charges which exceed the LightCMS base price will be credited as profit to the "Money Pile" in your LightCMS account.
- In the event that we receive a chargeback on the credit card of a client under your account, LightCMS will have the right to reclaim any profits credited to you from the charges in question either by deducting them from your Money Pile funds or charging them to your Account Billing Data.
- You will be able to withdraw the funds in your money pile at any time. Upon withdrawal, your money pile funds may be subject to a processing fee. To protect against fraudulent activity, the withdrawal will undergo manual verification and, because of this, it may take up to a week to complete.
- Transaction fees are billed each month on the website's billing date for the previous month's store transactions.
If, at any time, the billing obligations of any LightCMS website are not met, whether through Account Billing or Client Billing, LightCMS will have the right to disable the website in its entirety.
LightCMS offers a number of partner programs in which customers can participate. All participants in partner programs are subject to the LightCMS Terms of Service outlined in this document, in addition to any terms and conditions provided for a specific partner program. In case of conflict between a specific program's terms and the LightCMS Terms of Service, the LightCMS Terms of Service shall always take priority.
LightCMS shall have the right to approve, reject and remove participants in any of its partner programs at any time for any reason. Terms regarding specific partner programs are listed below.
- LightCMS Resellers. LightCMS provides you the opportunity to resell the Service to your own clients through its Reseller Program. When you participate in this program, you accept full responsibility for all websites under your account and for each site's adherence to these Terms of Service. If you utilize LightCMS's Client Billing services, you accept the terms regarding Client Billing defined elsewhere in these terms. You also agree that the Service may include certain communications between LightCMS and your clients who are using the Service. You also agree that while we intend to allow you to resell the Service under a private label, this private label is in no way guaranteed we will in no way be held responsible for any failure to maintain its private label.
- LightCMS Professionals. LightCMS grants certain partners the opportunity to provide services to LightCMS customers as LightCMS Professionals. If you participate as a LightCMS Professional, you agree that the services you provide to LightCMS customers must result in websites running on one of LightCMS's paid plans. It is a violation of these terms to accept leads through the LightCMS Professionals program and to direct those leads to any platform other than LightCMS.
MEMBER ACCOUNT, PASSWORD AND SECURITY
You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify LightCMS of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. LightCMS cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not LightCMS, are entirely responsible for all Content that you or any of the users under your account upload, post, email, transmit or otherwise make available via the Service. LightCMS does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that you feel is offensive, indecent or objectionable. Under no circumstances will LightCMS be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You agree to not use the Service to:
- upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity, including, but not limited to, a LightCMS official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
- upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any content that is sexually explicit, pornographic, or in other ways could be viewed as "adult" content.
- upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose;
- upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
- collect or store personal data about other users.
You acknowledge that LightCMS does not pre-screen Content, but that LightCMS and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, LightCMS and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by LightCMS or submitted to LightCMS using the Service. You acknowledge and agree that LightCMS may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of LightCMS, its owners, its users and the public. You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE
LightCMS does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant LightCMS the following world-wide, royalty free and non-exclusive license(s), as applicable:
With respect to Content you submit or make available for inclusion on publicly accessible areas of the system, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purposes of providing and promoting the specific LightCMS site to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or LightCMS removes such Content from the Service. With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Service, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or LightCMS removes such Content from the Service. "Publicly accessible" areas of the Service are those areas of the LightCMS network of properties that are intended by LightCMS to be available to the general public. By way of example, publicly accessible areas of the Service would include LightCMS websites. However, publicly accessible areas of the Service would not include portions of services intended for private communication such as E-mail or areas off of the LightCMS network of properties such as portions of World Wide Web sites that are accessible through links from LightCMS sites but are not hosted or served by LightCMS.
You agree to indemnify and hold LightCMS, and its parent company, subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that we may establish general practices and limits concerning use of the Service, including without limitation the maximum disk space or bandwidth that will be allotted on our servers on your behalf. We may enforce these limitations by restricting the software itself, or by contacting you and requiring you to either restrict usage or upgrade your account if your website is found to be outside of the normal range of use. Regarding bandwidth, we will consider your site to be utilizing abnormally high bandwidth at the following levels: 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.
You agree that LightCMS has no responsibility or liability for the deletion or failure to store any data, messages, or other Content maintained or transmitted by the Service. We use many good practices to back up all Content multiple times dispersed over a large geographical area in order to minimize the likelihood of data loss. In the unlikely event Content is lost due to datacenter, hardware, or software malfunction, we will make all best efforts to recover the Content.
You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
MODIFICATIONS TO SERVICE
LightCMS reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that LightCMS shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.|
You agree that we may, under certain circumstances and without prior notice, immediately terminate your LightCMS account, any or all websites under your account, any associated email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical issues or problems, and (f) extended periods of inactivity. Termination of your LightCMS account includes (a) removal of access to all offerings within the Service, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring further use of the Service. Further, you agree that all terminations for cause shall be made in our sole discretion and that we shall not be liable to you or any third-party for any termination of your account, any associated email address, or access to the Service. All fees paid to us are non-refundable.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because LightCMS has no control over such sites and resources, you acknowledge and agree that LightCMS is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that LightCMS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
LIGHTCMS’S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to access the Service by any means other than through the interface that is provided by LightCMS for use in accessing the Service.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ELEMENT FUSION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- WE MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LIGHTCMS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT LIGHTCMS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF LIGHTCMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Any dispute or claim relating in any way to your use of LightCMS will be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law apply to this agreement. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. You agree to specifically exclude the TOS from the United Nations Convention on Contracts for the International Sale of Goods.
The TOS and the relationship between you and LightCMS shall be governed by the laws of the State of Oklahoma without regard to its conflict of law provisions. You and LightCMS agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Oklahoma, Oklahoma.
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on the Service or by posting them on their company website, blog or other corporate communications channels.
LightCMS, the LightCMS logo, Design Xpress, HTML Xpress, Custom Xpress and other Element Fusion product and service names and logos are trademarks of Element Fusion, LLC. (the "Element Fusion Trademarks"). Without Element Fusion's prior permission, you agree not to display or use in any manner, the Element Fusion Trademarks.
The TOS constitutes the entire agreement between you and LightCMS and governs your use of the Service, superseding any prior agreements between you and LightCMS. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The failure of LightCMS to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Note: The section titles in the TOS are for convenience only and have no legal or contractual effect.