Last Updated: 5.14.2024

This Lightfusion Terms of Use Agreement (the “Terms”) governs your access to and participation in the “Platform” (defined below) including any functionality, content, or services offered on or through lightfusion.io and made available by Lightfusion, LLC. and its affiliates. Lightfusion, LLC and its affiliates are herein referred to as “Lightfusion”, “we”,“our”, or “us”. All references to “you”, “your”, or “user”, as applicable, mean the person who accesses, uses and/or participates in the Platform in any manner.

If you use the Platform on behalf of an entity, you're present and warrant that you have the authority to bind that entity and your acceptance of these Terms will be deemed an acceptance of these Terms by that entity, and “you”, “your”, or “user” here in shall refer to that entity, its directors, officers, employees and agents.

Please read these Terms carefully. By using the Platform or creating an account you accept and agree to be bound and abide by these Terms and you acknowledge our Privacy Policy, which is incorporated herein by reference, and can be found clicking here. If you do not agree to these Terms or acknowledge the Privacy Policy, you may not access or use the Platform.

Access to and use of the Platform is available only to individuals who are at least 18 years of age and can form legally binding contracts under applicable law. By accessing the Platform, you represent and warrant that you are such an individual.

Lightfusion’s customer support team is active during normal business hours on normal business days and you may submit a request to the customer support team if you have any questions regarding the Platform or Terms here. We will make reasonable efforts to respond to such requests within three (3) business days.

‍

KEY TERMS

Confidential Information means non-public information of a party to these Terms and includes, but is not limited to, the know-how; tradesecrets; information about existing, new, or envisioned products, services, or features and their development and performance; any scientific, engineering, or technical information; computer software; business and financial information; and information relating to manufacturing, marketing, sales, customers, and pricing. Confidential Information also includes information received by a party from others that the party has an obligation to treat as confidential. Confidential Information does not include: (i) information rightfully possessed by a receiving party, as shown by reliable evidence, prior to any disclosure bythe other party; (ii) information that is or becomes generally available to the public through no fault of the receiving party; (iii) information obtained by the receiving party in good faith from a third party who discloses such information to such party on a non-confidential basis without violating any obligation of secrecy relating to the information disclosed; or (iv)information that the receiving party independently develops without access to the information of the disclosing party.

Platform means Lightfusion’s Artificial Intelligence (AI) proposal tool that you use to create a preliminary proposal for an installation at an end-user’s property.  Platform also includes any websites, applications, software, processes, or other online or software-based services provided by or through Lightfusion.

End-User is a person who is your customer and who request generation of a preliminary proposal via the Platform.

Proposal Data includes the data input into the Platform aspart of generating a preliminary proposal and any personally identifiable data of an End-User including, for example, the name and address of the End User.

Usage Data means non-personally identifiable data related tousage of the Platform including, for example and without limitation, the number of uses of the Platform, dates and times of such uses, the length of time of such uses, various counts of activity, geolocation, and any errors or unexpected operation of the Platform.

Your Data means all non-public materials, data, and information provided by you to Lightfusion including without limitation, End-Userdata, your Confidential Information, content developed by you, and all intellectual property rights thereto.

‍

OVERVIEW

1. Description of the Platform.

1.1. Service Provided via the Platform. As mentioned, the Platform enables you to generate a preliminary proposal for an installation at an End-User’s property.  

2. Functionality of the Platform. Lightfusion provides certain service functionalities as a part of the Platform. Lightfusion may add other functionalities and/or modify some of the functionalities at its own discretion and without further notice.

3. Restrictions. Except as expressly permitted in these Terms, you may not, and shall not allow any third party to: (i) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, sell, display, transmit, broadcast, transfer or distribute any portion of the Platform to any third party, including, but not limited to your affiliates, or use the Platform in any service bureau arrangement; (ii) circumvent, disable or otherwise interfere with security-related features of the Platform or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Platform; (iii) reverse engineer, decompile or disassemble, decrypt or attempt to derive the source code of, the Platform, or any components thereof; (iv) copy, modify, translate, patch, improve, alter, change, or create any derivative works of the Platform, or any part thereof;(v) use any robot, spider, scraper, or other automated means to access ormonitor the Platform for any purpose; (vi) take any action that imposes or may impose (at Lightfusion’s sole discretion) an unreasonable or disproportionately large load on the Lightfusion infrastructure or infrastructure which supports the Platform; (vii) interfere or attempt to interfere with the integrity or proper working of the Platform, or any related activities; (viii) remove, deface, obscure, or alter Lightfusion’s or any third party’s identification or attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Platform, or use or display logos of the Platform, without Lightfusion’s prior written approval; (ix) use Lightfusion’s marks without our prior written consent; (x) use the Platform to develop a competing service or product; (xi) use the Platform to send unsolicited or unauthorizedcommercial communications; (xii) use the Platform in any unlawful manner, for any harmful, irresponsible, or inappropriate purpose, or in breach of these Terms, any terms and conditions of any third-party product or service you use, or agreement you have entered into with any third party; and/or (xiii) use or access the Platform other than for their intended purposes.

4. Fees and Payment Terms. Use of the Platform is based subject to usage fees, set-up fees, and optional customization fees. Your right to usethe Platform begins when you have paid the set-up fee and completed the set-upprocess. Payments are not refundable. Your right to use the Platform ends if your account is inactive for thirty (30) or more days or you actively cancel your access to the Platform and/or your account by submitting a request through the website here.  All data associatedwith your account will be deleted thirty (30) days after your access to the Platform ends.

5. Availability of Service (SLA)

We will use commercially reasonable efforts to make the Platform available with a monthly uptime percentage of at least 99.99%. The monthly uptime percentage is calculated by subtracting from 100% the percentage of minutes during the month in which the service is not available. In the event Lightfusion does not meet this availability, you will be eligible to receive a reund as described below.

5.1 Refunds. In the event of the Platform is not available as described above, you get 1% of the total amount of the last invoice, per 10 minutes of unavailability, limited to 100% of the total invoice amount. To receive a refund, you must submit a claim, which contains at least the following information:

·        the dates and times of each unavailability incident that you’re claiming; and

·        your request logs that document the errors and corroborate your claimed outage.

5.2 SLA Exclusions. You are not eligible to receive a refund if the outage:

·        results from any announced maintenance (maintenance periods are announced on the service status page); or

·        is caused by corrupt or incompatible requests or files provided by you; or

·        is caused by unsupported input files; or

·        is caused by factors outside of our reasonable control, including any force majeure event or internet access or related problems beyond the demarcation point of Lightfusion.

6. Content.

6.1. Lightfusion Content and Materials. The Platform and associated content may only be used in accordance with these Terms. All materials displayed or performed on the Platform, including, but not limited to text, graphics, articles, photographs, images, illustrations (“Platform Materials”) are protected by copyright. You shall abide by all copyright notices, trademarkrules, information, and restrictions contained in any Platform Materials accessed through the Platform, and, without limiting your right to share such Platform Materials with associated End-Users as part of a generated preliminary proposal, shall not use, copy, reproduce, modify, translate, publish,broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Platform Materials or other proprietary materials not owned by you without the express prior written consent of the respective owners.

6.2. Content You Provide. In the course of using the Platform, you may provide content whether created by or for you, including but not limited to, graphics, images, files, photos, animation, artwork, text,data, information, scripts or other material or information which may be used by Lightfusion in connection with the Platform as provided by Lightfusion to you. You understand that by providing content, materials, data (including any personally identifiable data), or information (including without limitation information relating to your customers) to Lightfusion or in connection with the Platform (“Content You Provide”), you hereby grant Lightfusion a nonexclusive, worldwide, royalty free, perpetual, irrevocable, sublicenseable and transferable right to use, process, store, copy, reproduce, reformat, translate, modify and create derivative works of Content You Provide in connection with Lightfusion’s provision of the Platform to you as well as in connection with internal use by Lightfusion to improve the Platform. Forclarity, the foregoing license grant to Lightfusion does not affect your ownership of or right to grant additional licenses to the material in Content You Provide or any confidentiality obligations of Lightfusion with respect to Content You Provide otherwise set forth in these Terms.

6.3. Responsibility. You represent and warrant that: (i) youown or have obtained necessary rights (including intellectual property and other rights) in and to the Content You Provide and you have the right to provide Content You Provide and the license granted in these Terms to use Content You Provide as stated in Section 6.2 above; (ii) Content You Provide, as set forth in these Terms (including in any applicable privacy policy), does not and shall not (a) infringe or violate the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party, (b) violate any law, statute, ordinance, or regulation, (c) beharmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable, (d) impersonate any person or entity, including without limitation any employee or representative of Lightfusion, or (e) contain a virus, trojan horse, worm, timebomb, or other harmful computer code, file, or program. Lightfusion reserves the right to remove any content from the Platform at any time, for any reason (including, but not limited to, upon receipt of claims or allegations fromthird parties or authorities relating to such content or if Lightfusion is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You are responsible to back up Content You Provide before uploading it onto our Platform. Lightfusion may add, change, suspend or discontinue the Platform, in whole or in part, for any reason, at any time, including the availability of any feature, or Content You Provide, without notice or liability to you. Lightfusion shall not be responsible nor heldliable for any failures, errors, unavailability, and/or damages to Content You Provide and does not assume responsibility for the accuracy, completeness, safety, timeliness, legality, or applicability of any Content You Provide.

7. Intellectual Property Rights.

7.1. Platform. Title and full, exclusive ownership rights in the Platform (and all parts of either, including the Platform Materials), and all reproductions, corrections, modifications, enhancements, and improvements, and all related patent rights, copyrights, trade secrets, trademarks, servicemarks, related goodwill, including data related to your usage of the Platform (excluding Your Data), and Lightfusion’s intellectual property, and any rights therein not explicitly granted to you hereunder, are reserved to and shall remain solely and exclusively proprietary to Lightfusion (or its third partyproviders). “Lightfusion” is a mark of Lightfusion or its affiliates. All other trademarks, service marks, and logos used on the Platform are the trademarks, service marks, or logos of their respective owners. We reserve all rights not expressly granted in and to the Platform and the Platform Materials.

7.2. Content You Provide. The intellectual property and allother rights, title and interest of any nature in and to Content You Provide are and shall remain your exclusive property. Except as expressly set forth herein, nothing in these Terms shall be construed as transferring any rights, title or interests to Content You Provide to Lightfusion or any third party.

8. Confidential Information.

Except as otherwise permitted under this Agreement, you and Lightfusion will not knowingly disclose to any third party or make use of any Confidential Information while these Terms are in effect and for so long as such information remains confidential. This provision shall not be deemed to prevent the disclosures of information after having received prior consent from the otherparty, disclosures required by applicable law or a binding regulation, rule or order of a court, governmental or regulatory body having competent authority and jurisdiction over same, or disclosures to the parties’ respective attorneys and accountants for legal and accounting advice. Upon any termination of your subscription to the Platform, you shall return to us (or destroy atLightfusion’s direction) all Lightfusion Confidential Information, and all copies thereof, in your possession, custody or control unless otherwise expressly provided in these Terms.

9. Data Rights and Use.

You represent and warrant that you have complied and will comply with all applicable laws related to the use, disclosure, and processing of and has the obtained all rights, authorization, consents and necessary to provide Your Data to Lightfusion for all uses required for the operation of the Platform and additional uses as outlined in this section. As between you and Lightfusion, you shall retain ownership of the entire right, title, and interest in and to Your Data. No ownership rights in Your Data are transferred to Lightfusion. Lightfusion shall maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data. However and except as may be restricted by applicable privacy laws, You grant to Lightfusion and its affiliates a non-exclusive, perpetual, irrevocable, worldwide license to use, sample, collect, and compile Your Data in aggregated and/or de-identified form for the purposes of providing or maintenance of, improvement to, and operation of the Platform or for any new or different products or services or other lawful purposes, including without limitation training of artificial intelligence and the generation of derivative data. As between You and Lightfusion, Lightfusion owns all right, title, and interest in and to such de-identified, aggregated data, and/or derivative data and may use the same for all lawful purposes. In addition, we shall own Usage Data.

10. Termination by Lightfusion. Lightfusion shall have the right to terminate your use of the Platform or to terminate the Platform at anytime and without prior notice or liability to you. Notwithstanding, Lightfusion may terminate your use of the Platform at any time and without prior written notice in any case where it believes that you have breached these Terms and such breach may cause Lightfusion irreparable harm unless your account is terminated immediately. Upon termination of these Terms, you shall cease all use of the Platform.

11. Effect of Termination. Upon termination you will lose all access to the Platform and to Content You Provide that we may be storing on your behalf. We do not accept any liability for any termination of the Platform or Content You Provide that is deleted in connection thereto. We shall not be liable to you or any third party for termination of your use of or access tothe Platform, or any portion thereof. This Section ‎11 and Sections ‎3 (Restrictions), 6 (Content), 7 (Intellectual Property Rights), ‎9 (Data Rightsand Use), 12 (Warranty Disclaimer), ‎13 (Limitation of Liability), ‎14(Indemnification), ‎15 (Disclosure), ‎20 (Governing Law and Disputes) and ‎21 (General), as well as any other provision which is intended to survive termination of the Terms or your subscription to the Platform, shall survive termination of these Terms and your subscription to the Platform.

12. Warranty Disclaimer.

12.1. The Platform is provided on an “as is” and “as available” basis, and without warranties of any kind either express or implied. You assume all responsibility for accessing and using the Platform and for the selection of the Platform functionalities to achieve your intended results. LIGHTFUSION HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

12.2. LIGHTFUSION DOES NOT WARRANT THAT THE PLATFORM OR ACCESS TO AND USE OF THE PLATFORM WILL BE UNINTERRUPTED, ERROR FREE THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM IS FREE FROM VIRUSES OR OTHER HARMFUL CODE.

12.3. LIGHTFUSION OFFERS NO WARRANTY REGARDING THE RELIABILITY OF THE PERFORMANCE OF THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY WARRANTY: (I) THAT THE PLATFORM, INCLUDING ANY ANTI-VIRUS OR ANTI-SPAM FEATURES, WILL DETECT, BLOCK OR PREVENT ALL VIRUSES, SPAM OR OTHER HARMFUL OR UNWANTED CODE OR INTRUSIONS; AND (II) REGARDING THE BACKUP OR STORAGE OF CONTENT YOU PROVIDE ON OR BY THE PLATFORM.

12.4. LIGHTFUSION DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT YOU OBTAIN THROUGH THE PLATFORM. YOUR USE OF AND RELIANCE UPON PLATFORM, OR CONTENTAND DATA (INCLUDING END-USER DATA AND GENERATED PRELIMINARY PROPOSALS) IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK, AND LIGHTFUSION, ITS AFFILIATES AND THIRD-PARTY PROVIDERS, SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO YOU IN CONNECTION WITH ANY OF THE FOREGOING.

12.5. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.

13. Limitation of Liability. NOT WITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW:

13.1. IN NO EVENT WILL LIGHTFUSION ITS AFFILIATES AND THIRD-PARTY PROVIDERS BE LIABLE UNDER OR OTHERWISE IN CONNECTION WITH THESE TERMS FOR: (I) ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL ORPUNITIVE DAMAGES; (II) ANY LOSS OF PROFITS, BUSINESS, OR ANTICIPATED SAVINGS; (III) ANY LOSS OF, OR DAMAGE TO DATA, REPUTATION, REVENUE OR GOODWILL; AND/OR (IV) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.

13.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF LIGHTFUSION, ITS AFFILIATES OR ITS THIRD-PARTY PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS (INCLUDING THE PLATFORM), EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU (IF ANY) FOR IN THE 6 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

13.3. THE FOREGOING EXCLUSIONS AND LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION ‎13 SHALL APPLY: (I) EVEN IF LIGHTFUSION, ITS AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES OR DAMAGES; (II) EVEN IF ANY REMEDY IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE; AND (III) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT).

13.4. NO ACTION, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU AFTER THE EARLIER OF (A) 12 MONTHS AFTER THE DATE ON WHICH YOU BECOME AWARE THAT A CAUSE OF ACTION HAS ARISEN, OR (B) THE PERIOD SET FORTH UNDER THEAPPLICABLE STATUTE OF LIMITATIONS.

14. Indemnification. You hereby warrant, represent and agree to hold Lightfusion harmless and to indemnify Lightfusion and its respective affiliates, officers, directors, employees and agents from and against any and all claims, damage, obligations, liabilities, loss, expense, legal expense (including but not limited to attorney’s fees) or cost incurred as a result of(i) your use of or inability to use the Platform; (ii) your violation of these Terms, including any false representation; and/or (iii) Your Data and Content You Provide infringing or otherwise violating third-party rights.

15. Disclosure. We reserve the right to access, read, preserve, and disclose any information that we obtain in connection with the Platform as we reasonably believe necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena, or governmental request, (ii) enforce these Terms, including to investigate potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to your support requests, and/or (v) protect the rights, property or safety of Lightfusion, its users, or the public.

16. Links. The Platform may contain links to third party websites that are not owned or controlled by Lightfusion. We are not affiliated with, have no control over, and assume no responsibility for the content, privacy policies, or practices of, any third-party websites. You: (i) are solely responsible and liable for your use of and linking to third party websites and any content that you may send or post to a third-party website; and (ii) expressly release us from any and all liability arising from your use of any third-party website. Accordingly, we encourage you to read the terms and conditions and privacy policy of each third-party website that you may choose to visit.

17. Third Party Advertisements. The Platform may contain advertisements made by third parties. Lightfusion is not affiliated to, nor endorses, these ads. Lightfusion is not responsible for the privacy practices or the content of such third parties. Accordingly, Lighfusion encourages you to read the terms and conditions and privacy policy of each such third party that you choose to use or interact with.

18. Assignment. These Terms, and any rights granted hereunder, may not be transferred or assigned by you but may be assigned by Lightfusion without restriction.

19. Modifications. We reserve the right, at our discretion, to change these Terms at any time. Such change will be effective ten (10) days following our sending a notice thereof to you or posting the revised Terms on the Site and your continued use of the Platform thereafter means that you accept those changes.

20. Governing Law and Disputes. These Terms and any disputes between you and Lightfusion shall be governed by the laws of the State of Utah, without reference to its conflict of laws rules. The exclusive jurisdiction andvenue for all disputes between you and Lightfusion shall be the courts located in the County of Salt Lake City, and each party hereby irrevocably consents to the jurisdiction of such courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from these Terms. Notwithstanding the foregoing, Lighfusion reserves the right to seek injunctive relief in any courtin any jurisdiction.

21. General. These Terms and any order forms or separate license agreements represent the complete agreement concerning the Platform between you and Lightfusion and supersede all prior agreements and representations related to the subject matter hereof. Section headings are provided for convenience only and have no substantive effect on construction. Except for your obligation to pay Lightfusion, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Nothing herein shall be construed to create any employment relationship, partnership, joint venture, or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party. If any provision of these Terms is held to be unenforceable, these Terms shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term.