Lightstep Terms and Conditions
Effective: 7/16/2021 Previous version effective 3/4/2019 - 07/15/2021
Upon execution of an ordering document signed between Customer and Lightstep, Inc. or upon electronic acceptance by Customer via Lightstep's online portal (collectively the "Order Form") referencing these terms and conditions ("Terms") by the Customer identified on such Order Form and Lightstep, Inc. ("Lightstep"), such Order Form will be incorporated into and form a part of these Terms (these Terms, together with all fully executed Order Forms, the "Agreement"). Each Order Form covers only the Customer entity identified on such Order Form.
If any of Customer's affiliates, meaning any person or entity directly or indirectly Controlling, Controlled by, or under common Control with a party, where "Control" means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause direction of the general management of a legal entity ("Affiliate") wish to access or use Services hosted on a separate instance ("Affiliate Instance"), such Affiliate and Lightstep must enter into a separate mutually agreed upon Order Form referencing and subject to these Terms, which will establish a new and separate agreement between the Customer Affiliate and Lightstep signing such Order Form. If such Customer Affiliate resides in a different country than Customer, such Customer Affiliate's Order Form may include modifications particular to such international transactions. Customer Affiliates who have an Affiliate Instance may purchase Assistance or additional access and use rights for the Affiliate Instance but may not do so for any other instance of the Subscription Service, and Customer may not purchase Assistance or access and use rights for the Affiliate Instance.
Subject to Customer's compliance with this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Lightstep grants Customer a non-sublicensable, nonexclusive license to (i) access and use the Software, Updates, Documentation, Implementation Service, technology and/or methodologies (including products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects, and documentation) created by or for, or licensed to, Lightstep and ordered by Customer as specified in the applicable Order Form (collectively, the "Service," or "Services") during the applicable Order Form Term (as defined below) solely for Customer's internal business purposes, as provided herein and in accordance with Lightstep's applicable published user documentation ("Documentation"), and (ii) use the software specified in an applicable Order Form in object code form only ("Software") (unless otherwise specified in writing by Lightstep), and only in accordance with the Documentation.
Upon payment of the applicable fees set forth in each Order Form, Lightstep agrees to use reasonable commercial efforts to provide basic implementation assistance, account configuration, product training, relationship management for the Service only if and to the extent such assistance is set forth on such Order Form and does not include product and engineering support ("Assistance"). If Lightstep provides Assistance in excess of the agreed-upon hours estimate specified in an Order Form or performs any customization work at Customer's request (e.g., nonstandard services), Customer will pay Lightstep for such services at its then-current hourly rates for consultation.
Lightstep will provide Uptime for the Services in accordance with the Service Level Agreement attached hereto. Lightstep's uptime obligations only apply where Customer has implemented the latest available Update to the installed on-premises Software.
From time to time, Lightstep may provide upgrades, patches, enhancements, or fixes for the Services or Software to its customers generally without additional charge ("Updates"), and such Updates will become part of the Software and subject to this Agreement; provided Lightstep shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands Lightstep may cease supporting old versions or releases of the Services or Software at any time in its sole discretion; provided Lightstep shall use commercially reasonable efforts to give Customer prior notice of any major changes to the Software. Customer shall, within five (5) business days after notice of an Update to the Software, implement such Update and cease using the prior version or release of the Software.
As between the parties, Lightstep retains all right, title, and interest in and to the Service, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Lightstep for the purposes of this Agreement, including any copies, updates, upgrades, improvements, configurations, extensions, and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including, without limitation, any software identified on an Order Form) is licensed per Section 2 above and not sold, and is a part of the Services and subject to all of the terms and conditions of this Agreement, even if, for convenience, Lightstep uses words such as "sale" or "purchase" in Order Forms or other documents. No rights or licenses are granted except as expressly set forth in this Agreement. Customer may from time to time provide suggestions, comments or other feedback to Lightstep with respect to the Service or Software ("Feedback"). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Lightstep notwithstanding anything else. As between the parties, Customer and its licensors retain all right, title, and interest in and to all Customer Data. Customer hereby grants to Lightstep a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Lightstep's right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies Customer may develop, produce, market, or distribute.
Lightstep may remotely review the scope of Customer's use of the Service, and if Lightstep determines Customer exceeded its permitted access and use rights to the Service, Lightstep will invoice Customer for additional subscriptions commensurate with Customer's actual use.
Customer shall pay Lightstep fees for the Service as set forth in each Order Form ("Fees"). Unless otherwise specified in an Order Form, all Fees will be invoiced per the Order Form and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. If Customer fails to timely cure such delinquency Lightstep may suspend Customer's use of the Service or terminate this Agreement for breach, in addition to any other available rights and remedies. All terms of this Section 7 apply unless expressly stated otherwise in the applicable Order Form. Customer may issue a purchase order consistent with the terms of the Order Form, but a purchase order is not required. If Customer issues a purchase order, then it shall be for the full amount of the Order Form, and any additional or conflicting terms appearing in a purchase order shall not amend the Order Form or this Agreement. All payments required by this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes ("VAT"), goods and services taxes ("GST"), excise, business, service, and similar transactional taxes imposed by any jurisdiction, and the interest and penalties on any and all of these (collectively, "Taxes"). Customer is solely liable for and will pay all Taxes associated with its purchase of, payment for, access to, or use of, the ordered Service. For the avoidance of doubt, Taxes will not be deducted from payments to Lightstep, except as required by law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Lightstep receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. When applicable, Customer will provide to Lightstep its VAT or GST identification number(s) on the Order Form. Customer will use the ordered Service for Customer's business use in accordance with the provided VAT or GST identification number(s) of its business establishment(s).
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service ; (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party or license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share, or otherwise make any of it available for access by third-parties, except as may be otherwise expressly stated herein or in an Order Form,; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Lightstep product or service; (vii) use the Service to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation of the Service; (viii) access, disable, or bypass any Lightstep or third-party data, software, or network or any measures Lightstep may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service), (ix) use it in a manner that violates any third party intellectual property, contractual or other proprietary rights, or (x) use it in violation of law (including those applicable to collection and processing of Customer Data through the Service);. Customer is responsible for all of use or activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws).
Each party (the "Receiving Party") understands the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business ("Proprietary Information"). Proprietary Information means: (1) the Software and Service (which is Lightstep's Proprietary Information; (2) Customer Data (which is Customer's Proprietary Information); (3) any of a party's information that, due to the nature of the information or circumstances of disclosure, the receiving party should reasonably understand it to be confidential; and (4) this Agreement and any amendment or attachment (which are all deemed Proprietary Information of both parties). Proprietary Information excludes any information; that (a) is or becomes generally publicly known without fault or breach by receiving party; (b) receiving party obtains (rightfully and without restriction on use or disclosure) from a third party entitled to make the disclosure; or (c) is independently developed by receiving party without using disclosing party's Proprietary Information.
The Receiving Party will: (1) at all times protect Proprietary Information from unauthorized disclosure with the same degree of care that it uses to protect its own confidential information, and in no event less than reasonable care; and (2) not use Proprietary Information except to the extent necessary to exercise rights or fulfill obligations under this Agreement. Each party will limit disclosure of the other's Proprietary Information to those of its and its Affiliates' employees and contractors with a need to know such Proprietary Information to exercise rights and obligations under this Agreement, and then only to employees and contractors subject to binding disclosure and use restrictions at least as protective as those in this Agreement. Each party's obligations under this Section will remain in effect during, and for 3 years after termination of, this Agreement. Receiving party will, at disclosing party's request, return all originals, copies, reproductions, and summaries of Proprietary Information and other tangible materials and devices provided to receiving party as Proprietary Information, or at disclosing party's option, certify destruction of same. This Agreement will not prevent Receiving Party from disclosing the other party's Proprietary Information to a court or governmental body pursuant to a valid court order, law, subpoena, or regulation, but only if receiving party: (1) gives prompt notice (or the maximum notice permitted under law) before making the disclosure, unless prohibited by law; (2) reasonably assists disclosing party, at disclosing party's cost, in its lawful efforts to resist or limit such disclosure; and (3) discloses only that portion of disclosing party's Proprietary Information that is legally required to be disclosed.
For purposes of this Agreement, "Customer Data" means any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service, including without limitation by means of the Software. Customer retains all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Lightstep, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. The parties acknowledge and agree that, except for limited personal information of Customer's personnel that is necessary in connection with the creation or administration of Customer's accounts on the Service, the Service does not require use of or access to any personally identifiable information by Lightstep. With regard to Customer Data, Customer shall (i) use reasonable efforts to restrict the inclusion of personally identifiable information submitted to the Services, and (ii) ensure no Sensitive Information is submitted to the Services. "Sensitive Information" means the following: (a) government-issued identification numbers, including Social Security numbers; (b) financial account data; (c) biometric, genetic, health or insurance data; (d) financial information; (e) data revealing race, ethnicity, political opinions, religion, philosophical beliefs or trade union membership; (f) data concerning sex life or sexual orientation; (g) data relating criminal convictions and offenses; and (h) any other personal information subject to specific or heightened requirements under applicable laws, regulations, or industry standards. If Customer inadvertently provides Lightstep with any Sensitive Information, Customer shall promptly notify Lightstep and Lightstep may delete such information. Customer acknowledges Lightstep may immediately delete all Customer Data stored in the Service if Lightstep believes Sensitive Information exists in the Service. Otherwise unless specified by Customer, the Service will delete any Customer Data more than twenty-eight (28) days old from the date Customer places such Customer Data into the Service. The terms of the data processing addendum ("DPA"), either attached here or available at lightstep.com/data-processing-addendum, shall apply to Lightstep's Processing of Personal Data (as defined in the DPA). Upon 45 days after termination or expiration of this Agreement (or termination or expiration of an Order Form), Lightstep will have no obligation to maintain any Customer Data and may, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
Lightstep shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Lightstep is not responsible for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Lightstep's gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Notwithstanding anything to the contrary, Customer acknowledges and agrees Lightstep may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services and any support or consultation services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) use Aggregated Anonymous Data for purposes of providing, improving, testing, and marketing Lightstep's products and services. "Aggregated Anonymous Data" means data submitted to, collected by, or generated by Lightstep in connection with Customer's use of the Service, but only in aggregate, de-identified form which can in no way be linked specifically to Customer or any individual. Notwithstanding anything to the contrary, Lightstep may disclose (including through display of Customer's logo) that Customer is one of its customers (including in its publicity and marketing materials). In addition, Customer shall participate in a case study at Lightstep's reasonable request to document impact and/or return on investment of the Services.
This Agreement commences upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, will last until the expiration of all Order Form Terms. For each Order Form, the "Order Form Term" begins as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (a) continues for the initial term specified on the Order Form (the "Initial Order Form Term"). In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Upon termination, Customer will stop accessing and using, and Lightstep will stop providing, the Service and all related rights granted to Customer in this Agreement terminate immediately, automatically, and without notice. Without limiting the foregoing, Lightstep may suspend or limit Customer's access to or use of the Service if (i) Customer's account is more than sixty (60) days past due, or (ii) Customer's use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Lightstep's ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Lightstep shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Lightstep shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Lightstep shall reinstate Customer's use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
a. BY LIGHTSTEP.
i. OBLIGATION. Subject to this Section 12(a), Lightstep will: (1) defend Customer and Customer Affiliates, and its and their officers, directors, and employees against any third-party suit, claim, action, or demand ("Claim") to the extent alleging any: (a) Service used in accordance with this Agreement infringes any IPR of any unaffiliated third party ("IPR Claim"); or (b) Lightstep personnel when onsite at Customer's premises caused death, bodily harm, or damage to tangible personal property due to their negligence or willful misconduct; and (2) pay any settlement amount or court-ordered damages award under the forgoing clauses (i)(a) or (i)(b) to the extent arising from such Claim.
ii. MITIGATION. In connection with any IPR Claim, Lightstep may: (1) contest the Claim; (2) obtain claimant's permission for Customer's continued use of the applicable Service; (3) replace Customer's access to or use of the applicable Service with substantially similar functionality that avoids the Claim; or (4) if Lightstep determines the foregoing clauses (1), (2), and (3) are commercially impracticable, terminate Customer's access to and use of the affected Service on 60-days' prior notice and refund any prepaid fees covering that part of the applicable Term for such Service remaining after the effective date of termination.
iii. LIMITATIONS. Notwithstanding the above, Lightstep has no obligation or liability for any Claim under Section 12(a)(i)(a) to the extent arising from: (1) use of any Service not expressly authorized under this Agreement, to the extent the Claim would have been avoided without such access or use; (2) Customer Data or Customer Technology; or (3) use of Service: (a) in violation of law; (b) after termination under Section 12(a)(ii)(4); or (4) modification to the Service to Customer's specifications or by anyone other than Lightstep or its contractors, or if combined with anything not provided by Lightstep, if the Claim would have been avoided but for such modification or combination.
b. BY CUSTOMER.
Customer will: (1) defend Lightstep and Lightstep Affiliates, and its and their officers, directors, and employees against any Claim to the extent alleging that Customer Data or a modification to the Services or any Lightstep technology made to Customer's specifications or otherwise made by or on behalf of Customer (other than one made by or for Lightstep and only if the Claim would have been avoided by use of the unmodified Service), infringes any IPR, or violates any third-party privacy rights; and (2) pay any settlement amount or court-ordered damages award, under the foregoing clause (1) to the extent arising from such Claim.
Each party's duty to indemnify under Section 12(a) or 12(b), as applicable, is subject to indemnified party: (1) notifying indemnifying party promptly of any actual or threatened Claim, (2) giving indemnifying party sole control of the defense of such Claim and of any related settlement negotiations, and (3) cooperating and, at indemnifying party's reasonable request and expense, assisting in such defense. Neither party will stipulate, acknowledge, or admit fault or liability on the other's part without the other's prior, written consent. Indemnifying party will not publicize any settlement without indemnified party's prior, written consent. To the extent the parties perform as required, this Section 12 states each party's entire liability and the other party's exclusive remedy for third-party claims and third-party actions.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE ABOVE, LIGHTSTEP DOES NOT WARRANT THE SUBSCRIPTION SERVICE: (1) WILL MEET THE REQUIREMENTS OF CUSTOMER OR OTHERS; (2) WILL BE ACCURATE OR OPERATE WITHOUT INTERRUPTION OR ERROR; OR (3) IS DESIGNED FOR ANY PURPOSE REQUIRING FAIL-SAFE PERFORMANCE FOR WHICH FAILURE COULD RESULT IN DEATH, PERSONAL INJURY OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL DAMAGE.
a. LIMITED LIABILITY. To the extent permitted by Law, each party's total, cumulative liability arising out of or related to this Agreement and the products and services provided under it, whether based on contract, tort (including negligence), or any other legal or equitable theory, will be limited to the amounts paid by Customer for use of the products or provision of the services giving rise to the claim during the 12-month period preceding the first event giving rise to liability. Multiple claims will not enlarge this limit.
b. EXCLUDED DAMAGES. To the extent permitted by Law, neither Lightstep nor Customer will be liable to the other or any third party for lost profits (direct or indirect), for loss of use or data, or for any incidental, consequential, punitive, special, or exemplary damages (including damage to business, reputation or goodwill), or indirect damages of any type however caused, whether by breach of warranty, breach of contract, in tort (including negligence), or any other legal or equitable cause of action, even if such party has been advised of such damages in advance or if such damages were foreseeable.
c. APPLICABILITY. The limits in Section 14(a) and exclusions in 14(b) do not apply to: (1) obligations to pay for products, services or taxes; (2) obligations to pay third parties under Section 12; (3) IPR infringement; or (4) an action in tort, separate and distinct from a cause of action for breach of this Agreement, for the party's gross negligence or willful misconduct.
This Agreement represents the entire agreement between Customer and Lightstep with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Lightstep with respect thereto and excludes any other terms Customer seeks to impose or incorporate or that may be implied by trade, custom, practice, or course of dealing. Any purchase order submitted by Customer is for Customer's internal purposes only and its terms and conditions are superseded and replaced by this Agreement, and the purchase order terms and conditions have no force or effect. The Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties' consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. To the extent permitted by applicable law, the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Notwithstanding the foregoing, either party to this Agreement may, at any time, and without waiving any other rights under this Agreement, seek appropriate legal or equitable relief, including but not limited to, emergency interim and/or injunctive relief, in any court of competent jurisdiction to protect its intellectual property rights. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party's reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party's consent; provided Lightstep (i) may assign all of its rights and obligations hereunder without Customer's consent to a successor-in-interest in connection with a merger, reorganization or sale of all or substantially all of such party's assets or business relating to this Agreement, and (ii) may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party's rights with respect to such breach or any subsequent breaches. Customer has not relied on any statement, promise, or representation not expressly included in this Agreement, including related to any possible future functionality that Lightstep may provide or offer.
All capitalized terms used but not defined herein have the meaning given to them in the service agreement to which this is attached ("Agreement").
Availability SLA. If the Covered Services are Available less than 99.9% during a calendar month, Customer's exclusive remedy is to request Lightstep issue a service credit ("Service Credit") to Customer for the dollar value of the number of minutes the Covered Serviced were not Available in the month. Service Credits are determined at the deemed per-minute rate Lightstep charges to Customer for Customer's use of the Covered Services. Customer may request Lightstep apply a Service Credit to the next invoice for the Covered Services subscription fees. Customer must request all Service Credits in writing to Lightstep within 30 days of the end of the month in which the Availability SLA was not met. Lightstep may delay issuing service credits until such amounts reach $1,000 USD or equivalent currency specified in the applicable Order Form.
i. "Available" means the production instance of the Covered Service can be accessed during a calendar month, excluding Excused Downtime and Notification.
ii. "Covered Services" consist of (a) Lightstep webapp available at https://app.lightstep.com, and (b) Lightstep HTTP endpoints used as part of integrating the Services and Software into the Customer's application and environment as documented by https://docs.lightstep.com.
iii. "Excused Downtime" means, scheduled maintenance resulting in unavailability of the Covered Services shall not be included as not Available; provided there shall be no more than five (5) sessions of scheduled maintenance that result in downtime per month. All scheduled maintenance shall be conducted between the hours of 9:00 PM (PT) and 6:00 AM (PT) after supplying Customer with two (2) days advance notice. To the extent Lightstep conducts maintenance on the Covered Services outside of the scheduled window without Customer's prior consent, such unavailability of the Covered Services shall be included in the calculation of Availability. In addition, where any of the following is a cause of unavailability of the Covered Services, the duration of such unavailability shall not be included in the calculation of Available: (i) Customer's acts other than in accordance with the Agreement, including, without limitation, any negligence, willful misconduct or use of the Covered Services in breach of the Agreement; (ii) Force Majeure - circumstances beyond Lightstep's reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or internet services.
iv. "Notification" means in each case, in order to allow Lightstep a meaningful opportunity to record, test and remedy Available as expeditiously as possible, calculation of whether the Covered Service was not Available will not commence until the earlier of (i) Customer supplying Lightstep with written notification (email is acceptable) of suspected time when the Covered Service was not Available (such notice to be effective when sent) or (ii) Lightstep becoming aware of a verifiable period where the Covered Service was not Available by means other than such notification. The Customer can report if the Covered Service was not Available by emailing support@Lightstep.com or notifying its Lightstep account manager.