1. Construction
Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, including the initial order set forth in Exhibit A (the “Order”), and its exhibits and addenda.
2. Lexion Services
2.1 Access. Commencing on the Effective Date of this Agreement, Lexion shall make available to Customer access to the Lexion software identified in the Order as a hosted service for use by Customer within the use limitations set forth in the Order (the “Service”) under the terms of this Agreement.
2.2 Rights to the Service. Subject to the terms and conditions of this Agreement, Lexion hereby grants Customer a non-exclusive, non-transferable, worldwide right during the Term to access the Service and permit the number of individual users and number of documents specified in the Order to use the Service solely for the internal purpose of managing Customer’s own documents up to the limits set forth in the applicable Order (“Authorized Users”).
2.3 Updates. At no charge to Customer, Lexion shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement.
2.4 Restrictions and Conditions. Customer shall not, directly, indirectly or through its Authorized Users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties the benefit of the Service; (b) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) allow access to the Service by multiple individuals impersonating a single end user; (d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Lexion technologies, services, systems or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with the Lexion online products and services; (f) circumvent or disable any security features or functionality associated with Service; (g) access the Service or associated data through web scraping or any undocumented process or API; or (f) use the Service in any manner prohibited by law. All rights not expressly granted to Customer are reserved by Lexion, its suppliers and licensor.
3. Customer Obligations
3.1 Fees and Payment Terms. In consideration of the rights granted herein, Customer shall pay Lexion the amounts specified in the initial Order located in Exhibit A, separately attached and incorporated herein to the Agreement (“Fees”).
(a) Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Customer shall be solely responsible for the payment of any Sales Taxes. In the event Lexion is required to pay Sales Taxes on Customer’s behalf, Customer shall promptly reimburse Lexion for all amounts paid.
(b) All amounts shall be paid to Lexion within thirty (30) days of receipt of an undisputed invoice. An invoice shall be deemed undisputed if, within such thirty (30) day period, Customer fails to notify Lexion in writing of any disputed amounts.
(c) Fees not paid when due shall be subject to a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Lexion further reserves (among other rights and remedies) the right to suspend access to the Service. Amounts payable to Lexion shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Lexion.
(d) All prices and other payment terms are confidential information of Lexion and Customer agrees not to disclose such information to any third party throughout the Term and for three (3) years thereafter.
(e) Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the scope of the subscription cannot be decreased during the relevant subscription term.
3.2 Compliance with Laws. The Lexion software and Service are of U.S. origin. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights. Notwithstanding anything to the contrary in this Agreement or any other agreement between the parties, Customer will not upload any data or information that is subject to government regulation, including without limitation, protected health information regulated under the Health Insurance Portability and Accountability Act of 1996 or sensitive financial information regulated under the Gramm-Leach-Bliley Act of 1999.
3.3 Publicity. Customer will allow the name and logo of Customer to be posted on Lexion’s web site and in marketing and advertising materials.
4. Ownership and protection of Data
4.1 Customer Content. As between the parties, all documents uploaded by Customer or its users to the Service are owned by Customer (“Customer Content”). Lexion shall treat such Customer Content as confidential and will not disclose the Customer Content, other than to employees, authorized and vetted contractors, and cloud hosting provider on a need-to-know basis under obligations of confidentiality and security.
4.2 Data Privacy and Security. Lexion will maintain reasonable administrative, technical, and physical safeguards to protect any (a) Customer Content and (b) any personally identifiable information processed, stored, collected or transmitted by Lexion (“PII”). Lexion will, on an ongoing basis, ensure that its information security program and safeguards and it privacy practices are designed, maintained, updated and adjusted, as necessary, to protect against reasonably foreseeable internal and external risks to the security, confidentiality and integrity of Customer Content and any PII. A copy of Lexion’s current security policy is available upon request.
4.3 License to Customer Content. Customer hereby grants to Lexion a non-exclusive, royalty-free, worldwide license to use, copy, store, modify, distribute, transfer and display the Customer Content solely for the purpose of providing the Service to Customer. Notwithstanding the foregoing, Lexion may use or disclose aggregated and fully anonymized Customer Content for the purposes of improving and extending the Service, including but not limited to, increasing the accuracy of machine learning classification models, both during and after the term of this Agreement.
4.4 Return of Data. If requested by Customer within thirty (30) days of the expiration or termination of this Agreement, Lexion shall make available to Customer all Customer Content stored within the Service at the time of expiration or termination. Thirty (30) days after termination, Lexion shall have no further obligation to Customer and may, at its option, permanently delete or destroy the Service and all information and materials contained therein.
5. Term and Termination
5.1 Term. Unless otherwise specified in the Order, the initial term of this Agreement will begin on the Effective Date and shall continue thereafter until the End Date specified in the Order (the “Initial Term”), and shall thereafter automatically renew for additional periods of one (1) year unless either party provides written notice of its intention not to renew to the other party at least sixty (60) days prior to expiration of the current term (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”). If no End Date is specified in the Order, the End Date will be one year from the Effective Date of this Agreement.
5.2 Termination. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach has not been cured within thirty (30) days of providing notice thereof. Customer may terminate this Agreement or any Order or subscription hereunder for any reason or for no reason by giving two weeks prior written notice to Lexion, provided however that if Customer terminates this Agreement or an applicable Order or subscription for convenience under this Section, Customer shall remain obligated to pay all fees owed for the remainder of the agreed upon subscription term, all of which fees shall become immediately due and payable in full.
5.3 Effect of Termination. Upon expiration or termination for any reason, Customer shall discontinue all use of the Service, and return any and all software and documentation provided to Customer by Lexion.
6. Indemnification
6.1 Customer. Customer shall indemnify and hold Lexion, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under Section 2.4 or 3 of this Agreement. In the event Lexion is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Customer agrees to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorney’s fees.
6.2 Lexion. Lexion shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out a third-party claim that the Service infringes or misappropriates any U.S. patents issued as of the Effective Date or any copyright or trade secret of any third party during the term of this Agreement. Lexion shall have no indemnification obligation, and Customer shall indemnify Lexion pursuant to this Agreement, for claims of infringement arising from the combination of Service with any unique aspects of Customer’s business, for instance Customer’s content, products, services, hardware or business processes, or for any use of the Service or any Lexion software not expressly authorized herein.
6.3. Process. A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.
7. Warranty/ Liability/ Total Liability
Mutual Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
7.1 Disclaimer. THE SERVICE AND ANY LEXION TRAINING, INSTRUCTION AND SUPPORT OR OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, “SERVICES”) ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY LEXION, ITS SUPPLIERS AND ITS LICENSORS.
7.2 CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE USES MACHINE LEARNING MODELS AND THAT THESE EXHIBIT VARYING DEGREES OF ACCURACY IN PRODUCING RESULTS. LEXION IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND LEXION’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY LEXION.
7.3 Limitation. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS OR VIOLATIONS BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S EXCLUSIVE REMEDY AND THE OTHER PARTY’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED, UP TO THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEEDING THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES.
7.4 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
7.5 Interpretation. The limitations in sections 7.3 and 7.4 are independent of each other. The limitation of damages set forth in section 7.3 shall survive any failure of essential purpose of the limited remedy in section 7.4.
8. Notices and Requests
Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement. All additional access licenses purchased by Customer during the Term shall be subject to the terms of this Agreement. For clarity, in no event shall any other term or provision of this Agreement be deemed modified, amended or altered as a result of such purchase and all other changes to this Agreement shall be governed by terms of Section 9, below.
9. Additional Terms
Lexion shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by Lexion and counter-signed by its authorized agent. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement.
10. General
This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington. Either party may assign its rights and obligations hereunder to a successor in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of Lexion to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. All disclaimers, limitations, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this “General” section shall survive termination of this Agreement. If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect. This Agreement, together with it’s the following exhibits, comprises the entire agreement between Customer and Lexion and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
