Fusion End User License Agreement (EULA)
These Terms and Conditions (“Agreement”) are legally binding between the customer entity (“Customer”) identified below and Lucidworks, Inc. and its subsidiaries (“Lucidworks”).
Capitalized terms used in this Agreement are defined in this Section 1 or the Section in which they are first used:
1.1 “Documentation” means, with respect to a particular Supported Software, the standard end-user technical documentation and specifications that are supplied with such Supported Software. The Lucidworks Product(s) end-user technical documentation and specifications are available at https://doc.lucidworks.com/index.html.
1.2 “End of Life Policy” means the Lucidworks policy which describes key business milestones and timing associated with Lucidworks Products’ end of life, including but not limited to, end of sale, end of product development, and end of technical support services, which policy is subject to change from time to time upon prior written notice to Customer.
1.3 “Error” means a reproducible failure of Supported Software to perform in substantial conformity with its Documentation, if any.
1.4 “Incident” means a single question or issue posed by Customer with respect to the Supported Software; the number of Incidents purchased are specified in an order form (“Order Form”).
1.5 “Lucidworks Products” means the Lucidworks proprietary software application(s) identified in the applicable Order Form with a Lucidworks authorized reseller.
1.6 “Authorized Project” is as defined in the Order Form.
1.7 “Fusion Node” means, with respect to Lucidworks Products other than Fusion 5.0 or later, a physical or virtual server with up to four (4) physical or virtual CPU cores that will be used for indexing, querying, data processing, or data management purposes. Physical or virtual servers running Solr or other search software that is utilized for indexing, querying, data processing, or management from a Fusion system is considered to be a Fusion Node. Physical or virtual servers with more than four (4) physical or virtual CPU cores may be counted as multiple Fusion Nodes, one (1) Fusion Node for every multiple of four (4) physical or virtual CPU cores.
1.8 “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Supported Software, including any updated Documentation, that Lucidworks may provide to Customer during the Subscription Term, which may contain, among other things, Error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Supported Software, but does not include any New Version.
1.9 “New Version” means any new version of the Lucidworks Product(s) that Lucidworks may introduce and separately price or market generally as a distinct licensed product (as may be indicated by designation of a new version number), and which Lucidworks may make available to Customer under a separate written agreement for new Product Subscription(s).
1.10 “Professional Services” has the meaning set forth in Section 2.
1.11 “Subscription Term” means subscription period (in months) specified on the Order Form during which an Order Form remains effective. The initial Subscription Term begins on the Subscription Start Date unless otherwise stated in the applicable Order Form and will continue for the number of months stated therein.
1.12 “Support Coordinators” has the meaning set forth in Section 4.2.
1.13 “Supported Software” means the version(s) of the Lucidworks Product(s) that are specifically identified in an Order Form as “Supported Software” and includes any subsequent Error corrections, Maintenance Releases, or Workarounds to such Lucidworks Products that Lucidworks provides to Customer.
1.14 “Open Source Software” means any software that is licensed under any open source, freeware, shareware, or similar licensing or distribution models. Without limiting the generality of the foregoing, Apache Solr and Apache Lucene are Open Source Software.
1.15“Workaround” means a set of procedures to mitigate an Error and allow the Supported Software to substantially achieve the functionality set forth in the Documentation, if any.
2. Order Forms. Customer may purchase consulting, advisory, training, support and/or maintenance services by entering into an Order Form with Lucidworks. The specific services purchased by Customer will be deemed the “Services.”
3. Professional Services. If applicable, Lucidworks will provide software development, engineering, consulting, advisory and/or training services (collectively, the “Professional Services”) to Customer for the fees specified in the Order Form. Unless otherwise specified in an Order Form, such Services will be delivered either at Customer’s facilities or in a remote fashion, as determined by Lucidworks, and conducted in English and made available to Customer in class sizes as described in the applicable Order Form. Services may be recorded for Customer’s internal use but are not for external distribution. Professional Services will be subject to a mutually agreed written Professional Services Agreement and Statement of Work (“SOW”).
4. Support and Maintenance
4.1 Technical Support Services. If specified in the Order Form and in accordance with the Lucidworks End of Life Policy, Lucidworks will provide technical support services to Customer for the specific Supported Software designated in the Order Form for a period of eighteen (18) months from the Supported Software release date (the “Support Term”). Technical support services consist of: (a) 24×7 response to questions regarding the installation and operation of the Supported Software; (b) attempting to identify causes of suspected Errors occurring on the Supported Software; (c) addressing confirmed Errors in the Supported Software in accordance with Section 4.3; and (d) any additional support services that may be specified in the applicable Order Form. Unless otherwise mutually agreed in writing, Lucidworks will have no obligation to provide on-site technical support services at Customer’s location or to provide technical support services beyond the Support Term unless Customer: (i) purchases extended support for the Supported Software pursuant to an Order Form or (ii) migrates from the Supported Software to a New Version of a Lucidworks Product which is covered by an applicable Support Term. When Support Coordinators (as defined below) notify Lucidworks of a suspected Error in the Supported Software, Lucidworks will use commercially reasonable efforts to reproduce such suspected Error. If Lucidworks identifies an Error, it will determine the Severity Level (as defined below) of the Error and use commercially reasonable efforts to correct the Error in accordance with the appropriate SLA and procedures set forth below. Lucidworks will handle technical support requests for immaterial Supported Software defects, but such requests shall not be subject to the SLAs.
4.2 Authorized Support Coordinators. Each Order Form will designate specific Customer personnel for requesting and receiving technical support services from Lucidworks (the “Support Coordinators”), and Lucidworks will provide technical support services only to those designated Support Coordinators. Customer will provide Lucidworks with the names of the Support Coordinators upon execution of the Order Form. Lucidworks, in its sole discretion, may limit the number of Support Coordinators in proportion to the purchased Lucidworks Product(s).
4.3 Service Levels and Procedures. When Support Coordinators notify Lucidworks of a suspected Error in the Supported Software, Lucidworks will use commercially reasonable efforts to reproduce such suspected Error. If Lucidworks identifies an Error, it will use commercially reasonable efforts to correct the Error in accordance with the following:
a. Services: In addition to the technical support services listed in Section 4.1, Lucidworks shall provide the following additional support services described below:
(i) Support and Maintenance: Providing Maintenance Releases, bug fixes, and other software updates as made available.
(ii) Authorized support contacts: Four (4) unless otherwise indicated in Order Form.
(iii) Contact names: See Order Form.
(iv) Support Hours: 7 days a week, 365 days a year for both phone and email support, and access to the Lucidworks Knowledge Portal.
b. Service Levels.
(i) Severity 1: A reported Incident, which has a severe commercial impact on Customer’s business which either makes the Supported Software inoperable or prevents content discovery. Action: Support will address Severity 1 issues with an initial response time of one (1) hour; Lucidworks’ support personnel will work to resolve the issue until a temporary workaround is in place.
(ii) Severity 2: A reported Incident, which has a significant commercial impact on Customer’s business which either makes one or more critical areas of functionality inoperable or prevents content discovery, and any workaround has a significant operational impact. Action: Support will address Severity 2 issues with an initial response time of twelve (12) hours.
(iii) Severity 3: A reported Incident, which has a moderate commercial impact on Customer’s business which either makes one or more non-critical areas of functionality inoperable or results in serious inconvenience to a significant number of Customer’s users, and a workaround has only a minor operational impact or impact’s Customer’s non-production environments. Action: Support will address Severity 3 issues with an initial response time of twenty-four (24) hours.
(iv) Severity 4: A reported Incident, which has no commercial impact on Customer’s business or does not affect any critical areas of functionality and only results in minor inconvenience to a small number of Customer’s users, and a workaround has only a minor operational impact, or impacts Customer’s non-production environments. Action: Support will address Severity 4 issues with an initial response time of forty-eight (48) hours.
4.4 Exclusions. Lucidworks will have no obligation to correct Errors caused by: (a) any modification of the Supported Software (including any attempted Error correction) not performed by Lucidworks; (b) any Customer or third-party product; or (c) Customer’s systems. No technical support services will be provided for the Supported Software if any fees are overdue. Customer acknowledges that compliance with the usage metrics outlined in the Order Form is critical to Lucidworks’ ability to comply with the SLAs stated herein. Should Customer exceed such usage metrics, the SLAs shall no longer apply. Issues related to Professional Services, including training, custom integration, or development work, are not covered by technical support services and are instead covered by a SOW or contracted for separately.
4.5 Customer Obligations. As a condition to Lucidworks’ technical support obligations under this Agreement, Customer must: (a) assist Lucidworks in identifying and correcting Errors; (b) execute reasonable diagnostic routines in accordance with instructions provided by Lucidworks (and inform Lucidworks of the results of such tests); (c) ensure that its designated Support Coordinators are sufficiently qualified and familiar with the Supported Software and Customer systems so as to provide Lucidworks with reasonable assistance in diagnosing and addressing Errors; and (d) install all Maintenance Releases.
5. Term and Termination
5.1 Subscription Term and Order Forms. Unless otherwise specified therein or unless earlier terminated in accordance with this Section 5, an Order Form is effective during the Subscription Term and any applicable renewal term(s). Lucidworks will have no obligation to provide access to Supported Software or any Professional Services or technical support services under a particular Order Form once it has expired or is terminated. Except as otherwise stated on an applicable Order Form, at the end of an applicable Subscription Term, the Product Subscription will automatically renew for additional Subscription Terms, unless either party notifies the other of its intent not to renew such Product Subscription at least thirty (30) days before the expiration of the then-current Subscription Term.
5.2 Termination. Either party may terminate this Agreement at any time upon thirty (30) days’ written notice to the other party if no Order Forms are then in effect. If either party breaches this Agreement and does not cure the breach within thirty (30) days of the non-breaching party’s written notice specifying the breach, the non-breaching party may, at its election, terminate for cause (a) this Agreement, including all Order Forms, or (b) only the specific Order Form giving rise to the breach. Either party may terminate this Agreement (including all Order Forms) at any time for cause if the other party files a petition or seeks relief under the bankruptcy or insolvency laws of any state or the United States.
5.3 Effect of Termination. Upon termination of this Agreement: (a) Customer will delete all copies of the Supported Software and any Lucidworks Product(s); (b) all applicable Supported Software licenses will terminate; (c) all Order Forms will terminate; (d) Lucidworks will have no further obligation to provide any Professional Services or technical support services to Customer; and (e) upon request, each party will return or destroy all Confidential Information (as defined below) of the other party. Sections 1 and 8 through 11 will survive expiration or termination of this Agreement or any Order Form hereunder.
6. Licenses and Proprietary Rights
6.1 Product Licenses. The parties agree that, as between the parties, Lucidworks owns all of the Lucidworks Products and Supported Software and all modifications thereto (including but not limited to Error corrections, Maintenance Releases, and Workarounds), other than third party Open-Source Software. All Lucidworks Products and Supported Software are licensed, not sold. The Product Subscription terms, including licensing metrics, pricing, use rights, and access to Lucidworks Products and Supported Software will be defined in an applicable Order Form and Customer agrees to use the Lucidworks Product(s) and Supported Software as defined by the license. The Lucidworks Products and Supported Software may include Open-Source Software. All Open-Source Software is distributed to Customer under the terms of the open-source license agreements referenced in the applicable Documentation; no licenses or rights in the Open-Source Software are granted under this Agreement. Lucidworks may, in its sole discretion, make some or all of the modifications available to the open-source community.
6.2 Proprietary Rights. The parties agree that, as between the parties, Lucidworks owns all of the Lucidworks Products, platforms, technology, tools, and related transactional and performance data. This Agreement does not grant Customer any intellectual property rights in or to any portion of the Lucidworks Products or Supported Software or any modifications thereto (including, but not limited to modifications provided with the Professional Services).
6.3 Other Materials. With respect to any deliverables or work product resulting from any of the Professional Services (the “Deliverables”), Lucidworks owns all right, title, interest in and to the intellectual property rights pertaining to such Deliverables and hereby grants to Customer a non-exclusive, perpetual, worldwide right and license to use, reproduce, modify, display, and perform such Deliverables solely for Customer’s internal business purposes within Customer’s organization.
6.4 Feedback. Lucidworks owns and retains all rights to any Customer feedback including ideas, features, improvements, information, comments, suggestions, or inventions related to the Lucidworks Products or the Professional Services which are provided by Customer or its representatives to Lucidworks (the “Feedback”), and all intellectual property rights therein, and may freely use, copy, disclose, and exploit such Feedback without any obligation, royalty, or restrictions based on intellectual property rights or otherwise. Customer hereby assigns to Lucidworks all of Customer’s and its representatives’ rights, title, and interest in and to the Feedback.
6.5 Restrictions. All licenses granted are subject to the conditions that Customer will not: (a) modify, adapt, alter, translate, or create derivative works from the Lucidworks Products; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Lucidworks Products; (c) distribute, sublicense, lease, rent, loan, or otherwise transfer the Lucidworks Products to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Lucidworks or its suppliers contained on or within any copies of the Lucidworks Products; (e) merge or use the Lucidworks Products with any software or hardware for which they were not intended (as described in the Documentation); (f) use the Lucidworks Products in any time-sharing, outsourcing, service bureau, hosting, application service provider environments; (g) use the Lucidworks Products for the purpose of third party training; (h) disclose the results of any benchmark tests on the Lucidworks Products without Lucidworks’ prior written consent; or (i) use the Lucidworks Products other than as described in the Documentation, or for any unlawful purpose. Lucidworks reserves the right to audit and monitor Customer’s use of the Lucidworks Products.
7. Confidential Information.
7.1 “Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary,” or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Without limiting the foregoing, the Lucidworks Products and Deliverables will be deemed to be Lucidworks’ Confidential Information, whether or not so marked.
7.2 Each party agrees: (a) to hold the other party’s Confidential Information in strict confidence; (b) not to disclose such Confidential Information to any third parties, except as described below; and (c) not to use any Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to nondisclosure obligations sufficient to protect the other party’s Confidential Information hereunder.
7.3 The restrictions set forth in this Section 7 will not apply to any Confidential Information that the receiving party can demonstrate: (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; or (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. In addition, a disclosure of Confidential Information required by applicable statute or regulation or by judicial or administrative process shall not be considered a breach of this Section 7, provided that the receiving party shall, to the extent permitted under applicable law, promptly notify the disclosing party of such requirement so as to provide the disclosing party the opportunity to obtain such protective orders or confidential treatment or otherwise limit or prevent the disclosure.
7.4 The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party. If there is any conflict between this Section 8 and any separate non-disclosure agreement signed by authorized representatives of both parties, the separate non-disclosure agreement shall control.
8. Warranty; Disclaimer.
8.1 Product Warranty. Lucidworks represents and warrants, for a period of ninety (90) days from the Subscription Start Date (the “Warranty Period”), that the Lucidworks Products (excluding Open-Source Software) will substantially conform to the applicable Documentation. For the avoidance of doubt, this warranty does not apply to any Product Subscription renewal term. If, during the Warranty Period, Customer notifies Lucidworks in writing of any defect or fault in the Lucidworks Products which causes it to fail to conform to the Documentation, and such defect or failure is not as a result of Customer, then Lucidworks will repair the Lucidworks Product to cause it to operate substantially in accordance with the Documentation. The foregoing will be Customer’s sole and exclusive remedy, and Lucidworks’ sole and exclusive obligation, for a breach of the warranty under this Section 8.1.
8.2 Professional Services Warranty. Lucidworks represents and warrants that: (a) the Professional Services will be performed in a professional and workmanlike manner, consistent with generally accepted industry standards, and using personnel with the proper skill, training, and background; and (b) for a period of ninety (90) days after delivery, any Deliverables (excluding Open-Source Software) will substantially conform to the description of that Deliverable in the Order Form and/or the SOW that describes it. In the event of a breach of this warranty, Lucidworks will re-perform the applicable Professional Services within a reasonable time provided that Customer notifies Lucidworks within seven (7) days following the date of completion of the Professional Services. The foregoing will be Customer’s sole and exclusive remedy, and Lucidworks’ sole and exclusive obligation, for a breach of the warranty set forth in this Section 8.2.
8.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTIONS 8.1 AND 8.2, LUCIDWORKS DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE LUCIDWORKS PRODUCTS, SOFTWARE, SERVICES, DELIVERABLES, AND MATERIALS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. THE LUCIDWORKS PRODUCTS, SOFTWARE, SERVICES, DELIVERABLES, AND MATERIALS ARE NOT DESIGNED, INTENDED, OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
9. Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 6.5 (RESTRICTIONS) OR SECTION 7 (CONFIDENTIAL INFORMATION): (A) NEITHER PARTY WILL BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO (I) LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF, KNOWS, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE LUCIDWORKS PRODUCTS OR SERVICES; AND (B) REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF ACTION, LUCIDWORKS’S TOTAL CUMULATIVE LIABILITY FOR ACTUAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS OR SERVICES GIVING RISE TO SUCH LIABILITY DURING THE TWENTY-FOUR (24) MONTHS PRIOR TO THE DATE THE DAMAGES WERE INCURRED. THE PARTIES ACKNOWLEDGE THAT THE FEES PAID PURSUANT TO THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT, AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
10.1 Infringement Indemnity. Lucidworks will indemnify, defend, and hold harmless any claim brought against Customer by any third party alleging that the Products or Deliverables, or portion thereof (excluding Open-Source Software), infringes any existing United States copyright, provided that Customer notifies Lucidworks promptly in writing of the claim and grants Lucidworks sole control of the defense and of all negotiations for settlement or compromise thereof. The Lucidworks defense obligations described above will not apply to the extent that the claim or infringement was caused by (i) Customer’s negligent acts or omissions; (ii) Customer’s breach of this Agreement; (iii) Customer’s intentional misconduct; (iv) Customer’s violation of any applicable law; (v) Lucidworks’ compliance with specification or detailed instructions submitted by Customer; (vi) Customer’s modification of the Products; or (vii) Customer’s use of the Products in combination with software, hardware, or technology that was not provided by Lucidworks.
10.2 General Indemnity. Lucidworks will indemnify, defend, and hold harmless any claim brought against Customer by any third party alleging that any act or omission of Lucidworks or its personnel resulted in: (i) personal injury (or death) or tangible property damage; (ii) the violation of any statute, regulation, or ordinance applicable to Lucidworks’ performance of the Services; and (iii) gross negligence or willful misconduct.
11.1 Force Majeure. Neither party shall be liable for delay in performance hereunder due to causes beyond its control, including but not limited to acts of God, fires, strikes, acts of war, intervention by governmental authority or other potential disaster(s) or catastrophe(s), such as epidemics, pandemics, and quarantines (each, a “Force Majeure Event”). Each party shall promptly notify the other party of any Force Majeure Event and shall use commercially reasonable efforts to mitigate the impacts thereof and perform notwithstanding. Such party shall promptly resume performance of its obligations when the Force Majeure Event has ended. Lucidworks reserves the right to suspend the provision of any Lucidworks Products or services to comply with laws.
11.2 Assignment. Either party may assign this Agreement in its entirety to (a) any entity under the common control of such party; (b) any successor in interest to such party by way of merger or consolidation; or (c) a purchaser of all or substantially all of the assets of such party, provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement.
11.3 Independent Contractor. Each party is acting in performance of this Agreement as an independent contractor. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
11.4 Notices. Any notices or communication under this Agreement shall be in writing and shall be hand delivered or sent by registered mail return receipt requested at the address set forth on the Order Form, or such other address as either party may in the future specify to the other party.
11.5 Choice of Law. The laws of the State of California in the United States of America will govern this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the courts in San Francisco County, California. The parties agree that this Agreement is written and construed in the English language.
11.6 No Waiver. A failure of either party to exercise any right provided for herein, shall not be deemed to be a waiver of any right hereunder.
11.7 Entire Agreement. This Agreement and the Order Form(s) set forth the entire understanding of the parties as to the subject matter therein and may not be modified except in a writing executed by an authorized representative of both parties. Any contractual terms contained in any Customer purchase orders will not be applicable to any transaction between the parties unless contained in a written document signed by both parties and such terms are hereby rejected by Lucidworks.
11.8 Precedence. In the event of a conflict between this Agreement and the Order Form, the terms of such Order Form shall control with respect to the maintenance services provided pursuant to such Order Form.
11.9 Severability. In the event any one or more of the provisions of this Agreement or of any Order Form is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall together constitute one and the same agreement.
11.10 Compliance with Applicable Laws. Customer understands that: (a) the Lucidworks Products may contain encryption technology and other software programs that may require an export license from the U.S. State Department and (b) export or re-export of the Lucidworks Products to certain entities (such as a foreign government and its subdivisions) and certain countries is prohibited. Customer acknowledges and agrees that it will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the Lucidworks Products are used and, in particular, Customer will not export or re-export the Lucidworks Products without all required United States and foreign government licenses. Customer will defend, indemnify, and hold harmless Lucidworks from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
11.11 Federal Acquisition Regulations. The Lucidworks Products and any other software covered under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Lucidworks Products and any other software and documentation covered under this Agreement with only those rights set forth therein.
The following additional terms and conditions will apply to Product Subscriptions and Customer’s use of Lucidworks Fusion 5.0 or later:
1. Included in Product Subscription. Customer’s Product Subscription includes: (a) the Supported Software as it exists on the Order Form Effective Date and (b) Maintenance Releases.
a. Validation Procedure. During the term of this Agreement, but no more than once in a twelve (12) month period, on no less than thirty (30) days’ prior written notice and in a manner that does not unreasonably interfere with Customer’s business operations, Customer shall permit Lucidworks or its designated agent to inspect Customer’s facilities and records to verify Customer’s compliance with the Agreement. Customer shall provide all such assistance and cooperation as may be requested by or on behalf of Lucidworks. Lucidworks, at its option, may require that an officer of Customer certify in writing to Customer’s compliance with this Agreement and disclose the scope of use of the Supported Software by Customer under this Agreement at any time during the Subscription Term.
Results of Validation. If the validation determines that Customer’s use of the Supported Software exceeded the usage permitted by this Agreement by more than 10%, Customer shall pay to Lucidworks all amounts due for such excess use of the Supported Software. Customer shall make all payments required under this Section 2.
3. Customer Obligations. Customer will use reasonable efforts to prevent unauthorized third parties from accessing or using the Supported Software and will notify Lucidworks promptly of any unauthorized access or use. Customer is solely responsible for the actions of any person or entity which receives access to the Supported Software through Customer’s systems, or any Customer log-in or access code, whether or not such access is authorized by Customer. Customer is responsible for complying with all applicable laws and other legal requirements when using the Supported Software, including applicable privacy laws and regulations relating to the collection, use, processing, and transfer of Customer Data. “Customer Data” means all electronic data or information submitted by Customer to the Products or collected by Customer by means of the Products. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data. As between the parties, Customer Data is owned by Customer, and is Customer’s Confidential Information (as defined in Section 8 of the Agreement).
The following additional terms and conditions will apply to Product Subscriptions and Customer’s use of Lucidworks Managed Fusion or later:
“Hosted Products” means those Lucidworks Products for which Customer has purchased a Product Subscription, which will be accessible to Customer through a website designated by Lucidworks during the Subscription Term. Hosted Product Subscriptions include the functionality as it exists on the Order Form Effective Date and Improvements made during the Subscription Term. “Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades, and changes to the Hosted Product as developed by Lucidworks, made generally available for production use and which are not separately priced and marketed.
1. Customer Obligations. Customer will use reasonable efforts to prevent unauthorized third parties from accessing or using the Hosted Products and will notify Lucidworks promptly of any unauthorized access or use. Customer is solely responsible for the actions of any person or entity which receives access to the Hosted Products through Customer’s systems, or any Customer log-in or access code, whether or not such access is authorized by Customer. Customer is responsible for complying with all applicable laws and other legal requirements when using the Hosted Products, including applicable privacy laws and regulations relating to the collection, use, processing, and transfer of Customer Data. “Customer Data” means all electronic data or information submitted by Customer to the Hosted Products or collected by Customer by means of the Hosted Products. Customer has the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data.
2. Protected Information. Unless otherwise agreed by the parties, Customer will not submit to the Hosted Products (or use the Hosted Products to collect): (i) any personally identifiable information (including without limitation any information that contains any unique identifier for an individual, that can be used to authenticate an individual’s identity, or that is, or can be, linked to one of the preceding types of information); (ii) any patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health (“HITECH”), or any similar federal or state laws, rules, or regulations; (iii) any information with respect to payment card or other financial accounts or transactions, with or without any card validation codes, security codes, access codes, personal identification numbers, passwords, validity dates, or magnetic stripe or electronic chip data that would permit access to such account; or (iv) any other information subject to regulation or protection under specific laws (such as the Gramm-Leach-Bliley Act or related regulations) (collectively, the information referenced in subsections (i) through (iv) is “Protected Information”). Customer acknowledges that Lucidworks is not acting as its Business Associate (as defined in HIPAA) and that the Hosted Products are not HIPAA or Payment Card Industry Data Security Standard (“PCI DSS”) compliant. Notwithstanding any other provision to the contrary, Lucidworks has no liability under this Agreement for any claims related to Protected Information.
3. Customer Indemnity. Customer will indemnify, defend, and hold Lucidworks and its officers, directors, and employees harmless against any expense, liability, loss, damage, or costs (including reasonable attorneys’ fees and legal costs, including any post-judgment or appellate fees or costs) resulting from any third party claim arising from or related to (i) Customer Data, including Protected Information; (ii) unauthorized access to the Hosted Products by means of Customer’s account or the access information of any of Customer’s users; or (iii) Customer’s use of the Hosted Products other than as authorized by this Agreement, including any claim that Customer (or Customer’s employees or contractors), or Customer Data, has infringed or misappropriated the intellectual property rights of a third party, or has violated applicable law. This indemnification obligation is contingent on Lucidworks notifying Customer promptly, in writing, of the claim (except that failure to promptly notify Customer will not limit, impair, or otherwise affect the indemnification rights under this Section unless Customer is prejudiced by that failure, and then only to the extent of the prejudice), and granting Customer sole control of the defense and all negotiations for settlement or compromise of such claim (however, Customer may not settle any claim without Lucidworks’ prior written consent unless that settlement includes a full and final release of all claims against Lucidworks and its officers, directors, and employees, and does not impose any obligations on Lucidworks or any of the other indemnitees).
4. Ownership; Customer Data. As between the parties, Customer will retain all ownership and intellectual property rights to Customer Data processed with the Hosted Products. Customer Data is considered Customer Confidential Information as defined in Section 7 above.
5. Use of Customer Data. Customer hereby grants to Lucidworks a worldwide, royalty-free, non-exclusive license to access, use, interact with, retrieve, collect, store, display, compile, copy, modify, and index Customer Data (i) as necessary to provide the Hosted Products to Customer and manage Customer access to the Hosted Products; (ii) to manage Lucidworks’ relationship with Customer; (iii) as necessary to comply with any legal or regulatory obligations; and (iv) as otherwise permitted under this Agreement.
6. Performance Data. Lucidworks may (i) collect and evaluate information related to Customer’s use of and the performance of the Hosted Products (“Performance Data”); (ii) use the Performance Data to improve and optimize the Hosted Products; (iii) anonymize Customer Data and Performance Data (by removing any identifiers for Customer or any individuals); (iv) aggregate that anonymized data with anonymized data from Lucidworks’ other customers; and (v) analyze, report, display, benchmark, disclose, market, sublicense, and distribute the aggregated, anonymized data for Lucidworks’ commercial, business, and marketing purposes.