Service Terms and Conditions
These Services Terms and Conditions (“Terms and Conditions”) are legally binding between the customer entity identified on the Order Form (“Customer”) and Lucidworks, Inc. (“Lucidworks”) regarding Lucidworks’ provision of the services described in the Order Form. This Exhibit is effective as of the Effective Date set forth on the Order Form.
1. SERVICES. Lucidworks will provide to Customer the services (the “Professional Services”) and will provide specified deliverables, such as an assessment report and/or training materials (collectively “Deliverables”) as described in the Description of Professional Services referenced in the order form which references this Exhibit C (“Order Form”).
2. FEES AND EXPENSES. Customer will pay to Lucidworks fees for the Professional Services as set forth in the Order Form. Customer will be responsible for all taxes resulting from the performance of the Professional Services other than taxes on Lucidworks’ income. Lucidworks will invoice Customer for expenses incurred in accordance with the Order Form. Customer will pay the fees and expenses within thirty (30) days of the invoice date.
3. LICENSE RIGHTS
3.1 License. As between the parties, Lucidworks owns all right, title and interest in and to the Deliverables. Lucidworks hereby grants to Customer a non-exclusive, perpetual license to use, reproduce, modify, display and perform the Deliverables for Customer’s internal business purposes within Customer’s organization.
3.2 Open Source Components. The 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 Components”). Any Open Source Components are delivered subject to the license(s) applicable to them; no licenses or rights in the Open Source Components are granted under this Exhibit.
3.3 Non-solicitation. The parties acknowledge and agree the Professional Services involve complex methodology requiring a high degree of specific product training. Therefore, unless otherwise mutually agreed to by the parties in writing, Customer agrees not to hire, retain or seek to retain any current and/or former employee, consultant, agent or other personnel of Lucidworks during the term specified in the Description of Professional Services and for a period of one year thereafter.
3.4 Injunctive Relief. Each party acknowledges that the other will be irreparably harmed if its obligations under of this Section 3 are not specifically enforced and that the non-breaching party would not have an adequate remedy at law in the event of a violation by the other party of its obligations. Therefore, each party agrees and consents that the non-breaching party will be entitled to an injunction or any appropriate decree of specific performance for any violation or breach thereof either by such party or its employees, consultants or agents.
4.1 Lucidworks Warranties. Lucidworks represents and warrants, for a period of ninety (90) days after delivery, that the Professional Services will be performed in a good and workmanlike manner and the Deliverables (excluding Open Source Components) will substantially conform to the description in the Order Form. 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 ten (10) days (for training services) 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 4.1.
4.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTION 4.1, LUCIDWORKS DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND THE DELIVERABLES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.
5. INFRINGEMENT. Lucidworks will defend any claim brought against Customer by any third party alleging that the Deliverables, or portion thereof (excluding Open Source Components), 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.
6. TERM & TERMINATION. This Exhibit will commence on the Effective Date set forth in the applicable Order Form or Description of Professional Services and will continue for one (1) year thereafter. However, either party may terminate this Exhibit for the other party’s material breach that is not cured within thirty (30) days of the date of notice of the breach. In the event of any termination of this Exhibit, Customer agrees to pay Lucidworks, within fifteen (15) days from date of termination, for all Professional Services performed, whether invoiced or work in process, up to the effective date of termination. Sections 3, 4.2, 7, 8 and 9 will survive termination or expiration of this Exhibit for any reason.
7. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 8 BELOW, (I) NEITHER PARTY WILL HAVE ANY LIABILITY TO THE OTHER WITH RESPECT TO ITS OBLIGATIONS UNDER THIS EXHIBIT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) IN NO EVENT WILL LUCIDWORKS’ LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AMOUNTS PAID TO LUCIDWORKS BY CUSTOMER UNDER THE ORDER FORM OR DESCRIPTION OF SERVICES GIVING RISE TO SUCH CAUSE OF ACTION. THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES SET FORTH IN THIS EXHIBIT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
8. CONFIDENTIALITY. “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 Deliverables will be deemed to be Lucidworks’ Confidential Information, whether or not so marked. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below and (iii) not to use any Confidential Information except for the purposes of this Exhibit. 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 Exhibit, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this section 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; (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. 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.
9. GENERAL. Neither party will 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, or intervention by governmental authority. Neither party may assign this Exhibit or any right or obligation hereunder, without the other party’s prior written consent, which will not be unreasonably withheld. However, either party may assign this Exhibit to a surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets. Any other assignment will be void and of no force or effect. This Exhibit will be binding upon and inure to the benefit of the permitted successors and assigns of each party, provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Exhibit. Lucidworks is acting in performance of this Exhibit as an independent contractor. Neither party will have the power to bind the other or incur obligations on the other’s behalf. Any notices or communication under this Exhibit will be in writing and will be hand delivered or sent by registered mail return receipt requested at the address set forth above, or such other address as either party may in the future specify to the other party. This Exhibit will be governed by the laws of the State of California in the United States of America. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Exhibit. Any action or proceeding arising from or relating to this Exhibit must be brought in the courts in San Mateo County, California. The parties agree that this Exhibit is written and construed in the English language. A failure of either party to exercise any right provided for herein, will not be deemed to be a waiver of any right hereunder. This Exhibit and the Order Form (together with its exhibits) which references it 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 both parties. In the event of a conflict between this Exhibit and the Order Form, the terms of such Order Form will control with respect to the Professional Services and Deliverables provided pursuant to such Order Form. In the event any one or more of the provisions of this Exhibit or of any Order Form is invalid or otherwise unenforceable, the enforceability of remaining provisions will be unimpaired. During the term of this Exhibit, Customer and Lucidworks may engage in co-marketing and publicity programs, including advertisements in trade and other publications, upon written approval (not to be unreasonably withheld or delayed). Lucidworks may also use Customer’s name, trademarks, and logo as a reference, on Lucidworks’ website, and in marketing materials. Customer agrees to serve as a “reference” for Lucidworks which means that Customer may be called from time-to-time to serve as a reference to other prospective customers, current or potential investors, the press, and financial and technology analysts, as mutually agreed to by both parties. Customer further agrees to cooperate with Lucidworks within one (1) year following the effective date of this Exhibit to produce and publish a public or non-public (at Customer’s discretion), “case study” of Customer’s usage of Lucidworks’ products.