Terms of Service

Definitions

Capitalized terms have the meanings set forth in this section or in the section where they are first used.

1. 1.1

   “Authorized User” means any individual who is an employee of Customer or an affiliate, contractor, or other person authorized by Customer to access the Services under Customer’s account.

2. 1.2

   “Confidential Information” has the meaning given in Section 11.1.

3. 1.3

   “Customer Data” means any data, information, files, and other content submitted or transmitted by Customer or its Authorized Users to or through the Services, including personal data of Customer’s end users or contacts, but excluding Feedback and Company Derived Data.

4. 1.4

   “Documentation” means the online user guides, help articles, and other technical materials relating to use of the Services that we make available to Customer, as updated from time to time.

5. 1.5

   “Company Derived Data” means data derived from aggregating or de-identifying Customer Data such that it no longer identifies Customer, its Authorized Users, or any natural person.

6. 1.6

   “Intellectual Property Rights” means all patents, trade secrets, copyrights, trademarks, moral rights, and other proprietary rights recognized under the laws of any jurisdiction.

7. 1.7

   “Order Form” means an online or written order form, subscription checkout flow, or similar document specifying Customer’s subscription to the Services, including applicable fees and subscription term.

8. 1.8

   “Services” means Silk Commerce Corp.’s cloud-based LightningAI platform, including its Lightning Reviews, Lightning Connector, Lightning Returns, and other product modules made available to Customer from time to time (collectively, “LightningAI”), together with related support, as described in the Documentation and any applicable Order Form.

9. 1.9

   “AI Features” means any features of the Services that generate, analyze, or recommend content or actions using machine learning, generative AI, or similar techniques, including any Input and Output associated with those features.

Modification to This Agreement

We may amend this Agreement from time to time to reflect changes to the Services, legal or regulatory developments, or other reasons. If we make a material change, we will provide notice — for example, by emailing the address associated with your account or displaying a notice within the Services — at least thirty (30) days before the change takes effect, unless a shorter period is required by law. Updated terms will apply to you on the later of (a) thirty (30) days from the date of the updated Terms of Service, or (b) the start of your next renewal term. If you do not agree to a change, you must notify us and stop using the Services before the change takes effect; otherwise, your continued use of the Services constitutes acceptance of the updated Agreement.

Provision of the Services

1. 3.1

   Access. Subject to this Agreement, we grant Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services during the Term. Customer may permit its Authorized Users to use the Services, and Customer is responsible for each Authorized User’s compliance with this Agreement.

2. 3.2

   Restrictions. Customer will not, and will not permit any Authorized User or third party to: (a) modify, adapt, or create derivative works of the Services; (b) sublicense, rent, lease, or otherwise make the Services available to any third party not authorized under this Agreement; (c) reverse engineer, decompile, or attempt to derive the source code of the Services, except as expressly permitted by law; (d) circumvent or disable any security or access-control feature of the Services; (e) use the Services to build or support a competing product; (f) remove any proprietary notices from the Services; (g) attempt to gain unauthorized access to the Services or related systems; or (h) use the Services in violation of our Acceptable Use Policy. We may, but are not obligated to, monitor use of the Services for compliance with this Agreement.

3. 3.3

   Availability. We will use commercially reasonable efforts to make the Services available, but access may be interrupted for scheduled or unscheduled maintenance, outages, or circumstances beyond our reasonable control.

4. 3.4

   Third-Party Services. The Services may allow Customer to interact with or connect to third-party products or services not provided by us (“Third-Party Services”). Any use of a Third-Party Service is solely between Customer and the applicable provider, and we are not responsible for the availability, content, or practices of any Third-Party Service. If Customer’s use of a Third-Party Service requires us to share Customer Data with that provider, Customer’s decision to enable the integration constitutes its instruction to us to do so.

Use of the Services

1. 4.1

   Setup. Customer is responsible for configuring its account and provisioning access for its Authorized Users, and for obtaining any hardware, software, or connectivity needed to access the Services.

2. 4.2

   Account Security. Customer is responsible for safeguarding its account credentials and for all activity occurring under its account. Customer must notify us at security@lightningcommerce.ai promptly, and in no event later than twenty-four (24) hours, after becoming aware of any unauthorized use of its account or other security incident involving the Services.

3. 4.3

   Suspension. We may suspend or limit Customer’s access to the Services, without liability, if we reasonably determine that (a) Customer or an Authorized User is using the Services in violation of this Agreement or applicable law; (b) such use poses a security risk to the Services or other customers; (c) we are required to do so by a court or governmental authority; or (d) any amount owed under this Agreement is more than fifteen (15) days past due.

Intellectual Property

The Services and Documentation, including all related Intellectual Property Rights, are and will remain the exclusive property of Silk Commerce Corp. and its licensors. Except for the limited rights expressly granted in this Agreement, no right, title, or interest in the Services is transferred to Customer, and we reserve all rights not expressly granted. We may modify or improve the Services from time to time; if we introduce material new functionality as a separately priced offering, Customer may continue using the generally available Services without paying additional fees for that new functionality.

Fees and Payment

1. 6.1

   Fees. Customer will pay the fees specified in the applicable Order Form or account billing page (“Fees”). Unless stated otherwise, Fees are billed in advance of each billing period and are quoted in U.S. dollars (USD).

2. 6.2

   Billing and Payment. By providing a payment method, Customer authorizes us (or our payment processor) to charge that payment method for all Fees due. Fees are non-refundable except as expressly stated in this Agreement or required by law. Customer must notify us of any billing dispute within fourteen (14) days of the applicable invoice; disputes raised after that period are waived. Late payments accrue interest at 1.5% per month or the maximum rate permitted by law, whichever is lower.

3. 6.3

   Fee Changes. We may change our Fees, provided we give Customer at least fourteen (14) days’ advance notice; changes take effect at the start of Customer’s next renewal term. Continued use of the Services after a Fee change takes effect constitutes acceptance of the new Fees.

4. 6.4

   Taxes. Fees are exclusive of taxes. Customer is responsible for all applicable sales, use, value-added, or similar taxes, other than taxes based on our net income.

Customer Data and Responsibilities

1. 7.1

   Ownership. As between the parties, Customer owns all Customer Data. Customer grants us a non-exclusive, worldwide, royalty-free license to host, process, and use Customer Data solely as necessary to provide, maintain, secure, and improve the Services and as otherwise permitted by this Agreement. Customer represents that it has all rights and consents necessary to provide Customer Data to us and to grant this license.

2. 7.2

   Feedback. If Customer or an Authorized User submits ideas, suggestions, or other feedback about the Services (“Feedback”), we may use that Feedback without restriction or obligation to Customer, and it will not be treated as Customer’s Confidential Information.

3. 7.3

   Aggregated/De-Identified Data. We may generate Company Derived Data from Customer Data and use it for legitimate business purposes, including improving and developing the Services, provided it does not identify Customer, its Authorized Users, or any natural person.

4. 7.4

   Personal Data. To the extent we process personal data on Customer’s behalf as part of the Services, such processing is governed by our Data Processing Agreement, which is incorporated into this Agreement by reference.

5. 7.5

   Customer’s Responsibility for Data. Customer is solely responsible for the accuracy, quality, and legality of Customer Data, the means by which it was obtained, and for maintaining its own backups. Customer must comply with all applicable laws relating to its use of the Services and any communications, transactions, or content it sends or processes through the Services.

AI Features

1. 8.1

   Use of AI Features. The Services may include AI Features that use algorithms or models developed by us or licensed from third-party providers to generate, analyze, or recommend content or actions based on Input submitted by Customer.

2. 8.2

   Ownership and Responsibility. As between the parties, and to the extent permitted by law, Customer retains ownership of its Input and owns the Output generated for its account; we assign to Customer any rights we may have in that Output, without transferring any rights in the underlying AI models. Customer is solely responsible for reviewing and validating any Output before relying on it, and acknowledges that Output may be inaccurate, incomplete, or unsuitable for Customer’s specific use case, and that similar Output may be generated for other customers.

3. 8.3

   No Training on Customer Data. Customer Data will not be used to train third-party foundation models. We may use Company Derived Data to improve the Services, including our own models, as described in Section 7.3.

Representations, Warranties, and Disclaimers

1. 9.1

   Mutual Warranties. Each party represents that it has the authority to enter into this Agreement and that doing so does not violate any other agreement to which it is bound.

2. 9.2

   Customer Warranties. Customer represents that (a) it maintains a legally sufficient privacy notice governing its collection of personal data; (b) Customer Data and its use of the Services will not infringe or misappropriate any third party’s rights or violate applicable law; and (c) it will not use the Services to transmit malware or other harmful code.

3. 9.3

   Limited Warranty. We warrant that the Services will perform substantially in accordance with the Documentation. This warranty does not apply to issues caused by Customer Data, Customer’s equipment or third-party integrations, unauthorized use, or modifications not made by us. Customer’s sole remedy for breach of this warranty is for us to use commercially reasonable efforts to correct the non-conformance or, if we cannot, to allow Customer to terminate this Agreement.

4. 9.4

   Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY OUTPUT FROM AI FEATURES WILL BE ACCURATE OR RELIABLE.

Limitation of Liability

1. 10.1

   TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY (NOR ITS AFFILIATES, SUPPLIERS, OR SUBCONTRACTORS) WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR GOODWILL, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

2. 10.2

   EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

3. 10.3

   The limitations in this Section 10 reflect an agreed allocation of risk between the parties and are an essential basis of the bargain, and will survive even if any limited remedy fails of its essential purpose. Some jurisdictions do not allow certain limitations of liability, so some of the above may not apply to Customer.

Confidentiality

1. 11.1

   Confidential Information. “Confidential Information” means non-public information disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”) that is marked or identified as confidential, or that a reasonable person would understand to be confidential given its nature. The Services and Documentation are Silk Commerce Corp.’s Confidential Information.

2. 11.2

   Protection. The Receiving Party will use Confidential Information only to exercise its rights and perform its obligations under this Agreement, will not disclose it to third parties except to personnel and contractors bound by confidentiality obligations at least as protective as this Section, and will protect it using at least a reasonable standard of care.

3. 11.3

   Exceptions. These obligations do not apply to information that is or becomes public through no fault of the Receiving Party, was rightfully known to the Receiving Party before disclosure, is independently developed without use of the Confidential Information, or is required to be disclosed by law (subject to reasonable advance notice to the Disclosing Party where legally permitted).

Indemnification

1. 12.1

   By Company. We will defend Customer against any third-party claim alleging that the Services, as provided, infringe that party’s intellectual property rights, and will indemnify Customer for damages finally awarded, subject to standard exclusions (e.g., claims arising from Customer Data, unauthorized modifications, or use in combination with other products not supplied by us). If the Services become subject to such a claim, we may procure a license, modify the Services, or terminate the affected Services and refund any prepaid, unused fees.

2. 12.2

   By Customer. Customer will defend and indemnify Silk Commerce Corp. against any third-party claim arising from Customer Data, Customer’s breach of this Agreement, or Customer’s violation of applicable law, and will pay damages finally awarded or amounts agreed in settlement.

3. 12.3

   Procedure. The indemnified party must promptly notify the indemnifying party of any claim, allow the indemnifying party to control the defense and settlement, and provide reasonable cooperation.

Term and Termination

1. 13.1

   Term. This Agreement begins when Customer registers for an account and continues until all subscriptions have expired or been terminated and the account is closed. Unless otherwise stated in an Order Form, subscriptions renew automatically for successive terms equal to the prior term (“Renewal Term”), unless either party gives notice of non-renewal at least thirty (30) days before the end of the then-current term.

2. 13.2

   Termination. Either party may terminate this Agreement if the other party materially breaches it and fails to cure the breach within thirty (30) days of written notice. We may also suspend or terminate Customer’s account for non-payment, prolonged inactivity on a free plan, or as otherwise described in Section 4.3.

3. 13.3

   Effect of Termination. Upon termination, Customer’s right to access the Services immediately ends, and, except where required by law, we may delete Customer Data after a reasonable period. Provisions that by their nature should survive termination — including Sections 1, 5, 6, 9.4, 10, 11, 12, and 14 — will survive.

Miscellaneous

1. 14.1

   Marketing. We may identify Customer by name and logo as a customer in our marketing materials unless Customer opts out by contacting legal@lightningcommerce.ai.

2. 14.2

   Governing Law. This Agreement is governed by the laws of the State of California, without regard to conflict-of-laws principles.

3. 14.3

   Dispute Resolution; Binding Arbitration.

   • Informal Resolution First. Before filing a claim, the parties agree to try to resolve any dispute arising out of or relating to this Agreement (a “Dispute”) informally. The party asserting a Dispute will send the other party a written notice describing the Dispute and the relief sought. The parties will negotiate in good faith for at least thirty (30) days from that notice before initiating arbitration.

   • Agreement to Arbitrate. If a Dispute is not resolved informally, it will be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, rather than in court, except as set out in Section 14.3(f). The arbitration will be conducted by one (1) arbitrator, in Orange County, California, in the English language. Judgment on the arbitration award may be entered in any court having jurisdiction.

   • Class Action Waiver. Disputes will be resolved on an individual basis only. Neither party may bring a Dispute as a class, collective, or representative action, and the arbitrator has no authority to consolidate more than one party’s claims or to preside over any form of a class or representative proceeding.

   • Fees. Each party will bear its own attorneys’ fees and costs, except as the arbitrator may otherwise award in accordance with the arbitration rules or applicable law.

   • Opt-Out. Customer may opt out of this arbitration agreement by sending written notice to legal@lightningcommerce.ai within thirty (30) days of first becoming subject to this Agreement. If Customer opts out, Disputes will instead be resolved exclusively in the state or federal courts located in Orange County, California, and both parties consent to personal jurisdiction and venue there.

   • Exceptions. Notwithstanding the foregoing, either party may bring an individual action in small claims court, and either party may seek injunctive or other equitable relief in any court of competent jurisdiction to prevent actual or threatened infringement, misappropriation, or violation of a party’s Intellectual Property Rights or Confidential Information.

   • Limitations Period. Neither party may bring a Dispute more than one (1) year after the cause of action accrued.

4. 14.4

   Export Compliance. Customer represents that it is not subject to any government sanctions or export restrictions and will not use the Services in violation of applicable export control laws.

5. 14.5

   Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions remain in full effect, and the invalid provision will be interpreted to best accomplish its original intent.

6. 14.6

   Waiver. No failure or delay in enforcing any provision of this Agreement constitutes a waiver of that or any other provision.

7. 14.7

   Assignment. Customer may not assign this Agreement without our prior written consent. We may assign this Agreement without restriction, including in connection with a merger or sale of assets.

8. 14.8

   Force Majeure. Neither party is liable for any delay or failure to perform resulting from causes beyond its reasonable control, including natural disasters, war, labor disputes, or governmental action.

9. 14.9

   Independent Contractors. The parties are independent contractors, and nothing in this Agreement creates a partnership, joint venture, or agency relationship.

10. 14.10

    No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

11. 14.11

    Notices. Customer must keep its account email address current; notices to Customer will be deemed effective when sent to that address. Notices to us should be sent to legal@lightningcommerce.ai or 47 Discovery, Suite 100, Irvine, CA 92782.

12. 14.12

    Beta or Pre-Release Features. We may make beta, early-access, or pre-release features available to Customer for evaluation purposes only. Such features are provided “as is,” without warranty or support commitment, and may be modified or discontinued at any time.

13. 14.13

    Entire Agreement; Order of Precedence. This Agreement, together with any applicable Order Form, Acceptable Use Policy, and Data Processing Agreement, constitutes the entire agreement between the parties regarding the Services and supersedes all prior discussions on the subject. In the event of a conflict, these documents govern in the order listed. Any terms in a Customer-issued purchase order or similar document are void. No modification of this Agreement is effective unless in writing and signed (or otherwise agreed in accordance with Section 2) by both parties.

Contact Us

Silk Commerce Corp.
47 Discovery, Suite 100, Irvine, CA 92782
legal@lightningcommerce.ai
949-748-3700