a. “Acceptable Use Policy” means Limelight’s Acceptable Use Policy, located at www.limelight.com/acceptable-use-policy, and which is incorporated by reference herein.
b. “Content” means all data, regardless of format or owner, including, but not limited to, content, websites, applications and the like, provided or identified to Limelight to be sent or received using the Services.
c. “Serverless Code” means, with respect to Limelight’s EdgeFunctions service, the code that You create or develop along with included libraries and or packages upon which the code depends for use with the Services.
d. “Traffic” means Content that You send or receive using the Services.
e. “Services” means the particular Limelight services provided to You on a trial basis pursuant to these Terms.
2. Services. Limelight makes available the Services to You in order to test the functionality and performance of the Services without incurring payment obligations.
3. Obligations. As between You and Limelight, You are responsible for Your Content, including maintaining backups and providing services and maintenance, and Your Serverless Code, if applicable, including the Serverless Code’s performance and function with the Services. You are solely responsible for any equipment, devices, hardware, cabling, material, services, support, products, applications, or licensed software supplied by parties other than Limelight that You use in conjunction with the Services (collectively, “Applications”). You represent and warrant that You own all right, title and interest in the Content, Serverless Code, or Applications, or possess the necessary rights and consent to permit the Content, Serverless Code, or Applications to be used with the Services.
Further, You: (i) represent and warrant that you have the right, authority, and capacity to enter into these Terms on behalf of yourself or the entity that you represent; (ii) will comply with Limelight’s Acceptable Use Policy; (iii) warrant that Your use of the Services will not violate any applicable law, rule, or regulation, including without limitation any data security, data privacy or export compliance law or regulation, breach an agreement with, or infringe the copyright or other intellectual property rights of a third party; (iv) will not sell, resell, license, sublicense, or otherwise distribute, or make the Services available to, or use the Services for, the benefit of any third party other than You; (v) will not transmit or introduce code, files, scripts, agents, or programs intended to do harm to Limelight’s network or services, which include but are not limited to viruses, worms, time bombs, Trojan horses; or (vi) will not interfere with or disrupt the integrity or performance of Limelight’s network, services, or any third party technology contained therein.
4. Term and Termination. The term of the Services begin on the date that Limelight begins providing you with the Services and will continue until the earlier of: (a) termination of these Terms by You or Limelight upon five (5) business days’ written notice to the other party; or (b) You and Limelight’s execution of an Order Form for the same or similar services that are the subject of these Terms. Notwithstanding the foregoing, Limelight may immediately suspend or terminate Your access to the Services without notice if You breach these Terms.
Within five (5) business days following termination for any reason, You must, at your own expense, remove all Content and Serverless Code from Limelight's network and infrastructure by using file transfer methods then-available to You for the terminated Services. After such five business-day period, Limelight will delete or otherwise remove all Content and Serverless Code and You will thereafter have no right or ability to retrieve such Content or Serverless Code. Limelight will have no responsibility or liability associated with removal or loss of Content or Serverless Code.
5. Licenses and Proprietary Rights. The Services and any documentation provided by Limelight to You under these Terms constitute Limelight’s proprietary information. Subject to the limited rights granted herein, Limelight reserves all right, title, and interest in the Services, including all intellectual property rights. Limelight does not transfer or otherwise license to You any technology, software, or other intellectual property rights.
6. DISCLAIMER OF WARRANTIES. UNLESS OTHERWISE EXPRESSLY STATED, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE EXTENT NOT PROHIBITED BY LAW, LIMELIGHT DISLAIMS ALL LIABILITY AND OBLIGATION UNDER THESE TERMS, INCLUDING FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, AND ANY OBLIGATION OR LIABILITY WITH RESPECT TO CONTENT, SERVERLESS CODE, OR APPLICATIONS. ANY CONFIGURATIONS, CONTENT, OR SERVERLESS CODE USED WITH THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, MAY BE PERMANENTLY LOST IF LIMELIGHT SUSPENDS, TERMINATES, OR DISCONTINUES THE SERVICES.
7. Confidentiality. If the parties are subject to an effective nondisclosure or confidentiality agreement, then that agreement will be deemed to supersede this section in its entirety until such time as that agreement no longer applies to the then-current exchange of information. “Confidential Information” is non-public information that includes, but is not limited to, these Terms; information concerning a party’s (the “Disclosing Party”) pricing terms, operations, methods of doing business, technologies, technical designs, research and development, know how, trade secrets, software source code, computer programs, algorithms, technical specifications and data, testing and bench-marking procedures and results, customers, personnel, financial information and other confidential or proprietary information belonging to or provided by or on behalf of the Disclosing Party, or information the party receiving such information (the “Receiving Party”) should reasonably know is confidential to the Disclosing Party. The term “Confidential Information” as used in this section does not include information that (i) was or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its directors, officers, employees, agents, contractors or advisors ("Representatives"); (ii) was or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided such source is not bound by a confidentiality obligation with the Disclosing Party; (iii) was within the Receiving Party's possession prior to it being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided the source of such information was not bound by a confidentiality obligation owed to the Disclosing Party with respect thereto; or (iv) is Content or Serverless Code. Each party agrees that it will not use, modify, copy, or disclose to any third party Confidential Information, except in furtherance of the relationship between the parties or as required by law. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s Representatives solely as necessary to meet their obligations under these Terms. The Receiving Party will also ensure that all Representatives are aware of the confidential and/or proprietary nature of the Confidential Information and have themselves an obligation of confidentiality providing no less restrictive and substantially the same protections as are provided under these Terms. The Receiving Party will take measures to protect Confidential Information at least as stringent as those measures that it takes to protect the confidentiality and security of its own confidential information of a similar nature, but in no event will the Receiving Party use less than reasonable care.
8. Indemnification. You agree to indemnify and defend Limelight against any and all third-party claims, liabilities, costs and expenses, including reasonable attorneys’ fees, based on claims relating to Your use of the Services, operation of Your websites (including any activities or aspect of commerce conducted thereon), or any breach by You of Your obligations under these Terms (a “Limelight Claim”). You are only liable to indemnify Limelight so long as: (i) Limelight gives You written notice no fewer than twenty (20) calendar days from the date Limelight first receives notice of the Limelight Claim; (ii) You are allowed to control the defenses of the Limelight Claim using legal counsel of Your choice; (iii) Limelight cooperates and assists You in investigating and defending such Limelight Claim when You makes reasonable requests for cooperation and assistance; and (iv) You are allowed to enter into an agreement to settle the Limelight Claim without prior Limelight consent.
Notwithstanding Your ability to settle the Limelight Claim, Limelight will have the right to approve any non-monetary settlement that involves the Services, and Limelight will not unreasonably withhold, condition or delay that approval. Limelight will have the right to control the defense of the Limelight Claim only if You do not give written notice to Limelight within thirty (30) calendar days from the date You receives notice from Limelight of the Limelight Claim that You will assume that defense.
9. LIMITATION OF LIABILITY. In no event is Limelight liable or responsible to You for any special, incidental, punitive, indirect, exemplary, or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, content or business information, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, however caused and regardless of the theory or liability.
WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, LIMELIGHT’S LIABILITY FOR ALL CLAIMS ARISING HEREUNDER, WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, WILL NOT EXCEED $100.00. THE IMMEDIATELY PRECEDING SENTENCE DOES NOT APPLY TO CONFIDENTIALITY OBLIGATIONS.
10. Governing Law, Venue. These Terms are to be construed in accordance with and governed by the internal laws of the State of Arizona, without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. All disputes and controversies arising out of or in connection with these Terms will be resolved exclusively in the state and federal courts located in Maricopa County in the State of Arizona. You agree to submit to the jurisdiction of such courts and agrees that venue will lie exclusively with such courts.
11. Severability. Whenever possible, each provision or portion of any provision of these Terms will be interpreted in a manner as to be effective and valid under applicable law. If any provision or portion of any provision of these Terms is held to be invalid, illegal, or unenforceable in any respect under any applicable law in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision in such jurisdiction. In such instance, these Terms, as appropriate, will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained in such document.
12. Survival. The provisions regarding preservation and ownership of intellectual property rights, confidential information, limitations of liability, indemnification, and Sections 10 (Governing Law, Venue) through 13 (Entire Agreement) will survive the expiration or termination of these Terms.
13. Entire Agreement. These Terms constitutes the entire agreement among the parties with respect to the subject matter hereof and no party shall be liable or bound to any other party in any manner by any warranties, representations, covenants or otherwise, except as specifically set forth in these Terms.