SUPPLEMENTAL TERMS AND CONDITIONS FOR LUCIDWORKS SOLUTIONS

These Supplemental Terms and Conditions (“Supplemental Terms”) apply to your use of certain websites, software, applications, solutions, tools, content, products, and services hereafter, which may be branded Agent Studio, Analytics Studio, AI App Studio, App Studio, Commerce Studio, Knowledge Studio, Studio, Studio Solution, Predictive Merchandiser, Experience Optimizer or another brand (the “Solutions”), owned, or licensed by Lucidworks Inc., its affiliates and subsidiaries (collectively, “Lucidworks” “Service Provider” “we” or “us”) and as identified in the Order Form entered into between Lucidworks and its customer (collectively “You” “Your” or “Customer”) to be used in conjunction with Lucidworks Search (“Product”, “Hosted Product” or “Fusion”).

These Supplemental Terms are incorporated by reference into the master subscription agreement, terms of service, or other agreement for that You may have with Lucidworks for use of the Product or Services (each, an “Agreement”) and are legally binding upon Your execution of the applicable Order Form. In the event of any conflict between these Supplemental Terms and the Agreement, these Supplemental Terms will govern with respect to the Solutions to which they apply. Except as otherwise defined herein, all capitalized terms used shall have the same meaning as ascribed in your Agreement with Lucidworks.

  1. Intellectual Property Rights and Restrictions
    1. Lucidworks retains all right, title, and interest in and to the Solutions, including all related intellectual property rights. The Solutions are protected by copyright, patent, trademark, trade secret, and other intellectual property or proprietary rights laws. Nothing in these Supplemental Terms shall be construed as transferring any such ownership rights from Lucidworks to You or any other third party. The Solutions’ end-user technical documentation and specifications are available at https://doc.lucidworks.com (the “Documentation”).
    2. Your use of the Solution(s) does not include any rights to:
      1. resell or make any commercial use of the Solutions;
      2. modify, adapt, translate, or create derivative works based on the Solutions or any part thereof;
      3. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Solutions;
      4. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or any features or functionality of the Solutions to any third party for any reason;
      5. merge or use the Solutions with any software or hardware for which they were not intended (as described in the Documentation);
      6. use the Solutions other than as described in the Order Form or Documentation, or for any fraudulent or unlawful purpose;
      7. use the Solutions to collect any: (a) patient, medical, or other protected or regulated health information, (b) cardholder or payment 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 (collectively, subsections (a) through (c) constitute “Protected Information”); and
      8. remove any proprietary notices or labels on the Solutions.
    3. All rights not expressly granted herein are reserved by Lucidworks. Unauthorized use of the Solutions may violate copyright, patent, trademark, and other laws. Lucidworks reserves the right to terminate the applicable Order Form and to demand the immediate cessation of all use of the Solutions in the event of any breach of these Supplemental Terms.
    4. The Solutions 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 Documentation; no licenses or rights in the Open Source are granted under these Supplemental Terms. Lucidworks may, in its sole discretion, make some or all the modifications available to the open-source community.
    5. Amendments. Lucidworks reserves the right, at its sole discretion, to modify or replace these Supplemental Terms at any time. If a revision is material, Lucidworks will provide at least thirty (30) days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at Lucidworks’ sole discretion. Notwithstanding any other provision, Lucidworks agrees that any material modifications to these Supplemental Terms will not apply to Your subscription for the applicable Solutions during its then-current term if such changes would: (i) materially reduce the benefits provided, (ii) materially impair Lucidworks’ ability to deliver the Solutions, or (iii) materially diminish Your rights. By continuing to access or use the Solutions after those revisions become effective in a new Subscription Term, You agree to be bound by the revised Supplemental Terms. If You do not agree to the new terms, You are free to stop using the Solutions.
  1. Obligations and Responsibilities
    1. You will use reasonable efforts to prevent unauthorized third parties from accessing or using the Solutions and will notify Lucidworks promptly of any unauthorized access or use. You are solely responsible for the actions of any person or entity which receives access to the Solutions through Your systems, through Your request to Lucidworks, or through Your log-in or access code, whether or not such access is authorized by You. You are responsible for complying with all applicable laws and other legal requirements when using the Solutions, including applicable privacy laws and regulations relating to the collection, use, processing, and transfer of Your Data. “Your Data” means all electronic data or information submitted by You to the Solutions or collected by You by means of the Solutions. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property rights in all Your Data.
  2. Support for Solutions
    1. You are eligible to receive Support for the Solutions. Support is as described herein and is included for the Solutions during the Subscription Term as specified in the applicable Order Form. Support includes: (a) responses to Incidents (where “Incident” means a single question or issue posed by Customer with respect to the Products); (b) effort to identify causes of suspected errors (where “Error” means a reproducible failure of the Products to perform in substantial conformity with its Documentation, if any) occurring with the Solutions; (c) addressing confirmed Errors in the Solutions; and (d) any additional support Solutions specified in the Order Form. When You notify Lucidworks of a suspected Error in the Solutions, Lucidworks will use commercially reasonable efforts to reproduce and correct such suspected Error.
    2. As a condition to Lucidworks’ Support obligations for the Solutions, You 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); and (c) ensure that Your employees are sufficiently qualified and familiar with the Solutions and Your systems so as to provide Lucidworks with reasonable assistance in diagnosing and addressing Errors.
    3. Lucidworks will have no obligation to correct Errors caused by: (a) any modification of the Solutions (including any attempted Error correction) not performed by Lucidworks, (b) any third-party product You use with the Solutions, or (c) Your systems.
  3. Warranty and Disclaimer
    1. Lucidworks represents and warrants that the Solutions will perform in all material respects with the Documentation during the Solutions Subscription Term so long as the Solutions have not been customized (unless otherwise stated in an applicable Order Form). In the event of a breach of this warranty, Lucidworks will correct the Errors that caused the breach of warranty. The foregoing will be Your sole and exclusive remedy, and Lucidworks’ sole and exclusive obligation, for a breach of the warranty under these Supplemental Terms.

    DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTION D(1), LUCIDWORKS DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE LUCIDWORKS SOLUTIONS PURCHASED UNDER THESE SUPPLEMENTAL TERMS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. THE LUCIDWORKS SOLUTIONS 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. LUCIDWORKS EXPRESSLY DISCLAIMS ANY LIABILITY OF ANY KIND THAT MIGHT ARISE FROM PROTECTED INFORMATION BEING SUBMITTED TO LUCIDWORKS.

  4. Indemnities
    1. Infringement Indemnity. Lucidworks will indemnify, defend, and hold harmless any claim brought against Customer by any third party alleging that the Solution, or portion thereof (excluding Open-Source Software), infringes such third party’s trademark or copyright arising under the law of the United States.
    2. 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 (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.
    3. Applicability and Limits. The indemnification obligations in this section are contingent on the indemnified party notifying the indemnifying party promptly in writing of the claim and granting the indemnifying party 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 Party’s:
      1. negligent acts or omissions;
      2. breach of these Supplemental Terms or the respective License Metrics as applicable;
      3. intentional misconduct;
      4. violation of any applicable law;
      5. Lucidworks’ compliance with specification or detailed instructions submitted by Customer;
      6. Customer’s modification of the Products;
      7. Customer’s use of the Products in combination with software, hardware, or technology that was not provided by or expressly permitted by Lucidworks.
      This indemnification obligation is contingent on the indemnified party notifying the indemnifying party promptly, in writing, of the claim (except that failure to promptly notify will not limit, impair, or otherwise affect a Party’s indemnification rights under this Section unless the indemnifying party is prejudiced by that failure, and then only to the extent of the prejudice), and granting the indemnifying party sole control of the defense and all negotiations for settlement or compromise of such claim (however, the indemnifying party may not settle any claim without the indemnified party’s prior written consent, which will not be unreasonably withheld, unless that settlement includes a full and final release of all claims against the indemnifying party and its officers, directors, and employees, and does not impose any obligations on the indemnified party or any of the other indemnitees). Notwithstanding anything to the contrary in this Agreement, the aggregate liability of either Party under its indemnification obligations in this Section shall not exceed the lesser of 2x the fees paid or payable for the Solutions by the Customer in the previous 12 months or $1 million dollars.
  5. Limitation of Liability

    WITH RESPECT TO THE SOLUTIONS, AND EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION E., NEITHER PARTY WILL BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO: (a) 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 (b) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE PRODUCTS. REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF ACTION, EACH PARTY’S TOTAL CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE SOLUTIONS WILL NOT EXCEED THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE SOLUTIONS UNDER THE APPLICABLE ORDER FORM GIVING RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE DAMAGES WERE INCURRED OR $10,000, WHICHEVER IS GREATER. THE PARTIES ACKNOWLEDGE THAT THE FEES PAID AND PAYABLE PURSUANT TO THE APPLICABLE ORDER FORM REFLECT THE ALLOCATION OF RISK SPECIFIC TO THE SOLUTIONS, AND THAT NEITHER PARTY WOULD ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THE LIMITS OF LIABILITY IN THIS SECTION DO NOT APPLY TO FEES OWED TO LUCIDWORKS BY CUSTOMER.

  6. Additional Provisions
    1. Data Processing and Security. If applicable, Data processing of Your Data under these Supplemental Terms 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/. Lucidworks agrees to deliver the Solutions under these Supplemental Terms using the technical and organizational security measures detailed at https://lucidworks.com/legal/tosm/.
    2. Termination. These Supplemental Terms will automatically terminate upon termination or expiration of the applicable Order Form or the Agreement. All other terms and conditions of the Agreement remain in full force and effect.
    3. Miscellaneous. These Supplemental Terms are subject to all general provisions of the Agreement, including governing law and dispute resolution.

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