This End User License Agreement (“Agreement”) is legally binding between the End User entity identified on an applicable Order Form (“Customer”) and Reseller subsidiaries (“Reseller”) regarding Reseller’s provision of the Products and Services described in the Order Form. This Agreement is effective as of the Effective Date set forth on the Order Form. For purposes of this Agreement, Order Form means any ordering document between Reseller and Customer regarding Reseller’s provision of Products and Services, irrespective of the name of the document.
- PRODUCTS AND SERVICES.
- Products. Reseller will provide Customer a non-exclusive right to access and use the software applications (the “Product(s)”) identified in each Order Form for a time-limited basis and in accordance with the Product License Metrics (the “Product Subscription”). “License Metrics” means the standard of measurement for determining the permitted use and calculating fees for the Product(s) as specified in an applicable Order Form. Customer acknowledges that the’ Products are online, subscription-based products and that Reseller may make changes to: (a) the Products in accordance with the Documentation (as defined below), or (b) the Technical Support Terms (defined below). All Products are licensed and not sold. The Product Subscription terms, including License Metrics, Product descriptions, pricing, use rights, and access to Products will be defined in each Order Form and Customer agrees to use the Product as defined therein. The Product end-user technical documentation and specifications are available at https://lucidworks.com/legal/technical_support/ (the “Documentation”).
- Restrictions. Customer will not, directly or indirectly: (a) modify, adapt, alter, translate, or create derivative works from the Products or Services; (b) reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code, object code, or underlying structure, ideas, know-how, or algorithms for the Products or any software, documentation, or data related to the Services; (c) distribute, sublicense, lease, rent, loan, or otherwise transfer the 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 Reseller or its suppliers contained on or within any copies of the Products; (e) merge or use the Products with any software or hardware for which they were not intended (as described in the Documentation); (f) use the Products in any time-sharing, outsourcing, service bureau, hosting, or application service provider environments; (g) use the Products for the purpose of third party training; (h) disclose the results of any benchmark tests on the Products without Reseller’s prior written consent; (i) use the Products other than as described in the Documentation, or for any fraudulent or unlawful purpose; or (j) use the Products to store, publish, display, or transmit defamatory, infringing, libelous, harassing, abusive, threatening or otherwise unlawful or tortious material, or any material in violation of third-party privacy rights;
- GENERAL PRODUCT TERMS.
- Customer Obligations. Customer will use reasonable efforts to prevent unauthorized third parties from accessing or using the Products and will notify Reseller promptly of any unauthorized access or use. Customer is solely responsible for the actions of any person or entity which receives access to the Products through Customer’s systems, or any Customer log-in or access code, whether such access is authorized by Customer. Customer is responsible for complying with all applicable laws and other legal requirements when using the 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 Products or collected by Customer by means of the Products. Customer has the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data.
- Protected Information. Unless otherwise agreed by the parties, Customer will not submit to the Products or use the Products to collect any: (a) patient, medical, or other protected health information, including as 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; (b) cardholder data as protected by the Payment Card Industry Data Security Standard (“PCI DSS”); or (c) other information subject to specific regulation or protection under specific laws (such as the Gramm-Leach-Bliley Act or related regulations) (collectively, subsections (a) through (c) constitute “Protected Information”). Customer also acknowledges that Reseller is not acting as its Business Associate or subcontractor (as each is defined under HIPAA) and that the Products are not HIPAA or PCI DSS compliant. Notwithstanding any other provision to the contrary, Reseller expressly disclaims any liability of any kind that might arise from Protected Information being submitted to Reseller.
- Performance Data. Reseller may: (a) collect and evaluate information related to Customer’s use of and the performance of the Products (“Performance Data”); (b) use the Performance Data to improve and optimize the Products; (c) anonymize Customer Data and Performance Data (by removing any identifiers for Customer or any individuals) and aggregate that anonymized data with anonymized data from Reseller’s other customers; and (d) analyze, report, display, benchmark, disclose, market, sublicense, and distribute the aggregated, anonymized data for Reseller’ commercial, business, and marketing purposes.
- Feedback. Customer and its representatives may provide to Reseller ideas, features, improvements, information, comments, suggestions, or inventions related to the Products or the Services (“Feedback”). Customer hereby assigns to Reseller during the applicable Subscription Term, all of Customer’s and its representatives’ rights, title, and interest in and to the Feedback.
- PROPRIETARY RIGHTS.
- Reseller Rights. Customer acknowledges and agrees that Reseller retains whatever license rights, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights, if any) in and to the Products, platforms, technology, tools, Documentation (“Pre-Existing Materials”), Performance Data, Feedback, and any deliverables or work product resulting from any of the Professional Services (the “Deliverables”), and any derivative works, modifications, or improvements of any of the foregoing, including that may be incorporated (collectively, “Reseller Technology”). Except for the express limited rights set forth in this Agreement, no right, title, or interest in any Reseller Technology is granted to Customer. Reseller grants to Customer a perpetual, irrevocable, worldwide right and license to use the Deliverables with the Product(s) solely for Customer’s internal business.
- Open-Source Software. The Products and Deliverables may include software, documentation, and other materials which are subject to open-source software, freeware, shareware, or similar licensing or distribution models (“Open Source”). Any Open Source is delivered subject to the license(s) applicable to them as referenced in the applicable Product Documentation; no licenses or rights in the Open Source are granted under this Agreement.
- Customer Data. Reseller agrees that Customer retains all ownership and intellectual property rights to Customer Data processed with the Products. Customer Data is considered Customer Confidential Information as defined in Section 4. Customer hereby grants to Reseller a worldwide, royalty-free, non-exclusive license to access, use, interact with, retrieve, collect, store, display, compile, copy, modify, and index Customer Data: (a) as necessary to provide the Products to Customer and manage Customer access to the Products; (b) to manage Reseller’ relationship with Customer; (c) as necessary to comply with any legal or regulatory obligations; and (d) as otherwise permitted under this Agreement.
- Confidential Information. “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 Products and Deliverables will be deemed to be Reseller’ Confidential Information, whether or not so marked.
- 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.
- Exceptions. Confidential Information does not include 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 use of or access 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, 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.
- The parties agree that a breach of Sections 3 and 4 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 and any separate non-disclosure agreement signed by authorized representatives of both parties, the separate non-disclosure agreement shall control.
- WARRANTIES AND DISCLAIMER.
- Product Warranty. Reseller represents and warrants, for a period of ninety (90) days from the Subscription Start Date (the “Warranty Period”), that the 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. In the event of a breach of this warranty, Reseller will correct the Product errors that caused the breach of warranty. The foregoing will be Customer’s sole and exclusive remedy, and Reseller’ sole and exclusive obligation, for a breach of the warranty under this Section 5.1.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTIONS 5.1 AND 5.2, RESELLER DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE RESELLER PRODUCTS, SOFTWARE, SERVICES, DELIVERABLES, AND MATERIALS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. THE RESELLER 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.
- 6. INDEMNITIES
- Infringement Indemnity. Reseller 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 such third party’s trademark or copyright arising under the law of the United States, provided that Customer notifies Reseller promptly in writing of the claim and grants Reseller sole control of the defense and of all negotiations for settlement or compromise thereof. The foregoing obligations will not apply to the extent that the claim or infringement was caused by: (a) Customer’s negligent acts or omissions; (b) Customer’s breach of this Agreement; (c) Customer’s intentional misconduct; (d) Customer’s violation of any applicable law; (e) Reseller’ compliance with specification or detailed instructions submitted by Customer; (f) Customer’s modification of the Products; or (g) Customer’s use of the Products in combination with software, hardware, or technology that was not provided by Reseller.
- Customer Indemnity. Customer will indemnify, defend, and hold Reseller 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 (a) Customer Data, including Protected Information; (b) unauthorized access to the Products by means of Customer’s account or the access information of any of Customer’s users; or (c) Customer’s use of the 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 Reseller 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 Reseller’ prior written consent unless that settlement includes a full and final release of all claims against Reseller and its officers, directors, and employees, and does not impose any obligations on Reseller or any of the other indemnitees).
- LIMITATION OF LIABILITY.
RESELLER WILL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO: (a) LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF CUSTOMER HAS BEEN ADVISED OF, KNOWS, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND (b) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE PRODUCTS. EXCEPT FOR BREACHES OF SECTION(S) 1, 2.1, AND 4 OF THIS AGREEMENT AND REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF ACTION, RESELLER’S TOTAL CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE PRODUCTS OR SERVICES UNDER THIS AGREEMENT GIVING RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE DAMAGES WERE INCURRED. THE PARTIES ACKNOWLEDGE THAT THE FEES PAID AND PAYABLE 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. THE LIMITS OF LIABILITY IN THIS SECTION DO NOT APPLY TO FEES OWED TO RESELLER BY CUSTOMER.
- LIMITATION OF LIABILITY.
- Force Majeure. Neither party shall be liable for delay or failure in performance hereunder (except for any obligations of Customer to make payments to Reseller) due to causes beyond its control, including but not limited to acts of God, fires, strikes, 3rd party malicious attacks, 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.
- Assignment. Customer shall not assign this Agreement without Reseller’s prior written consent. Any purported assignment in violation of this Section shall be null and void.
- 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.
- 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 to the address set forth on the Order Form, or such other address as either party may in the future specify to the other party. Notices sent to Reseller shall be addressed to:
Attention: Head of Legal
235 Montgomery Street, Suite 500
San Francisco, CA 94104
- Governing Law; Venue. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each party agrees to the applicable governing law and jurisdiction based on Customer’s domicile as follows:
If Customer is domiciled in: The governing law is: The courts that have exclusive jurisdiction are in: Arbitration location Any country or geographic region not listed below England and Wales Arbitration London Asia Singapore Arbitration Singapore Europe Republic of Ireland Dublin N/A United Kingdom England and Wales London N/A U.S. Canada or Mexico California San Francisco N/A
The parties further agree all proceeding for claims or controversies arising from or related to this Agreement shall be in English.
- 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.
- 7. Entire Agreement. This Agreement sets 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 or other ordering documents that add to or conflict with the terms in this Agreement will not be applicable to any transaction between the parties, and such terms are hereby rejected by Reseller.
- 8. Severability. In the event any one or more of the provisions of this Agreement 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 deemed an original, but all of which shall together constitute one and the same agreement.
- 9. Survival. Sections 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payment), 6.3 (Effect of Termination), 7.3 (Disclaimer), 8 (Indemnities), 9 (Limitation of Liability), and 10 (General) will survive expiration or termination of this Agreement or any Order Form hereunder.
- Data Processing and Security. Customer Data processing under this Agreement shall at all times be subject to Lucidworks’ Data Processing Addendum, available at https://lucidworks.com/legal/dpa/, and California Data Processing Agreement, available at https://lucidworks.com/legal/cdpa/, as applicable. Lucidworks agrees to deliver the Products and Services under this Agreement using the technical and organizational security measures detailed at https://lucidworks.com/legal/tosm/.
- Compliance with Applicable Laws. (a) Reseller will provide the Products and Services in accordance with its obligations under laws and government regulations applicable to Reseller’ provision of the Products and Services to its customers generally, including without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. (b) Customer understands that: (i) the Products may contain encryption technology and other software programs that may require an export license from the U.S. State Department and (ii) export or re-export of the Products to certain entities (such as a foreign government and its subdivisions) and certain countries is prohibited. Customer 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 Products are used and, in particular, Customer will not export or re-export the Products without all required United States and foreign government licenses. Customer will defend, indemnify, and hold harmless Reseller from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
- Federal Acquisition Regulations. The Products 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 Products and any other software and documentation covered under this Agreement with only those rights set forth therein.
- Updates to URL Terms. From time to time, Reseller may make changes to the URL Terms by posting updated terms at the applicable URL and updating the “Last Updated Date” for such terms. By continuing to access or use the Products or Services after the Last Updated Date for such updated URL Terms, Customer agrees to be bound by the updated URL Terms.
- Precedence. In the event of a conflict between this Agreement and the Order Form, the terms of this Agreement shall control.