Introduction
Thank you for considering Lexion as your intelligent intake, workflow automation, contract review and editing assistant, and contract lifecycle management system. Before we dive into the legalease of this Lexion Subscription Agreement (this “Agreement”), for context, DocuSmart, Inc., d/b/a Lexion, a Delaware corporation (“Lexion”), provides a business-focused solution and takes the privacy and security of data seriously (go here to learn about Lexion’s certifications and security posturing). Please assess the terms of this Agreement with that lens. Without further ado, here is the legalease:
1. Background
1.1 The Parties. This Agreement is between Lexion and the entity (or entities) that’s identified in the relevant order form (“Customer”) or similar document that references this Agreement and is executed by the parties (“Order Form”). This Agreement is effective as of the effective date of the first Order Form entered into between Lexion and Customer (except as set forth in Section 1.3 below) (“Effective Date”).
1.2 Applicable Terms. This Agreement sets forth the terms and conditions under which Lexion agrees to provide, and Customer agrees to receive and pay for, access to and use of the Services (defined in Section 2.1 below) described herein and the relevant Order Form. Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement or in an Order Form. In addition to this Agreement and solely to the extent applicable if Customer uses any of the products listed in the Lexion Service Specific Terms (“SST”), the applicable portions of the SST available at https://www.lexion.ai/service-specific-terms apply and are hereby incorporated into this Agreement by reference. References to this “Agreement” will include applicable portions of the SST.
1.3 Controlling Terms. If there’s a direct conflict between the terms of this Agreement, an Order Form, the DPA (defined in Section 4.5 below), or SST, the documents will control in the following order: Order Form, DPA, SST, and this Agreement. This Agreement was last updated as of the date set forth above. If Customer signed an Order Form with Lexion before the above last updated date, then the terms of the Prior Version - V1 of the Lexion Subscription Agreement available above apply and Customer agrees that the terms of this Agreement will apply upon renewal (unless the parties have entered into a written agreement).
2. Services and Each Party’s Responsibilities
2.1 Order Forms and Applicable Services. Each Order Form will set forth the Lexion software-as-a-service offerings and may incorporate offerings for the provision of professional services (“Professional Services”) to be purchased by or provided to Customer (collectively and inclusive of any updates thereto, the “Services”). Each Order Form constitutes Customer’s binding commitment to purchase the items described on such Order Form and is incorporated into this Agreement by reference. During the Subscription Term (defined in Section 5 below) set out in the Order Form, Lexion shall make available to Customer the Services set forth in such Order Form under the terms of this Agreement.
2.2 Service and Support Levels. During the applicable Subscription Term and as set forth in the Lexion Support Policy and Service Level Agreement available at www.lexion.ai/SLA (“SLA Policy”), Lexion will provide Customer support for the Services and the online Services component of the Services will be available. Lexion will not materially reduce its support or uptime availability requirements described in the SLA Policy during the applicable Subscription Term. Customer’s applicable support tier package is described in the relevant Order Form.
2.3 Customer’s Rights to Use the Services. Subject to the terms of this Agreement, Lexion hereby grants Customer a limited, non-exclusive, non-transferable, worldwide license during the relevant Subscription Term to access and use the Services and permit the number and type of individual users (“Authorized Users”) specified in the Order Form to access and use the Services solely for internal purposes of managing, processing, storing, analyzing, and reporting on contracts, documents, and tasks. Authorized Users may include Customer’s or Customer’s Affiliates’ (defined below) designated employees, contractors, or consultants.
2.4 Use of the Services by Customer Affiliates and Authorized Users. Customer may permit its Authorized Users, designated Affiliates, and Authorized Users of such Affiliates to access and use the Services pursuant to the terms of this Agreement; provided that additional fees may apply and such allowance does not expand Lexion’s liability under Section 8 below, the DPA, and volume of claims, and any claim under this Agreement, an Order Form, or DPA must be brought by Customer unless an Affiliate has separately signed an ordering document directly with Lexion for Services. Customer must notify Lexion of the identity of any Affiliates exercising rights granted to Customer hereunder. Customer is liable for all Affiliates and Authorized Users compliance with Customer’s obligations under this Agreement and the DPA. Customer must take reasonable steps to prevent unauthorized access to the Services, including, without limitation, by ensuring that all access credentials are kept confidential. No Authorized User will share its credentials or permit another individual to circumvent the privileges restrictions pertaining to the Services. Customer is liable to Lexion for all activity that occurs with Customer’s credentials or otherwise through or in connection with Customer’s or its’ Affiliates or Authorized Users’ accounts, including, without limitation, any unauthorized use or access of the Services through Customer or its’ Affiliates or Authorized Users’ accounts by Customer or any third parties. If Customer discovers any vulnerabilities or breaches related to Customer’s, an Affiliate’s, or an Authorized User’s use of the Services, Customer will: (a) promptly contact Lexion and provide details of the vulnerability or breach; and (b) cooperate with Lexion to remediate such vulnerability or breach. As used herein, “Affiliate” of a party means any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, and "control" (including as used in the terms "controlled by" and "under common control with") means the ownership, beneficially or of record, of more than fifty percent (50%) of the voting securities of an entity.
2.5 Customer Obligations When Using the Services.
(a) Customer understands that it has control over who are designated as Authorized Users and their specific roles and access rights, the files, information, or other data that’s uploaded, inputted, or otherwise processed in, through, and to the Services (together, “Customer Content”), and the specific purpose of how the Services are configured and used. Accordingly, in addition to Customer’s other obligations under this Agreement, in connection with Customer’s use of the Services, Customer agrees as follows: (i) Customer will ensure that it has obtained all requisite consents to enable Lexion to provide the Services; (ii) Customer will not use the Services in a manner that generates inquiries from a law enforcement or other regulatory agency or triggers such an agency to request the suspension of the Services; (iii) the Services may not be used to violate system or network security, including, but not limited to, transmitting files or messages containing computer viruses or propagating worms, Trojan horses, or “spyware” programs; (iv) Customer may not perform any audits, penetration testing, or make any other intrusion attempts on the Services without Lexion’s prior written consent; (v) the Services may not be used to transmit any Customer Content that violates or infringes the intellectual property, proprietary, or other rights of third parties, or that is offensive, illegal, or otherwise reasonably objectionable to any person or entity; and (vi) Customer will not upload any of the following types of information: personally identifiable health information, including any information defined as Protected Health Information under Health Insurance Portability and Accountability Act, as amended, financial account numbers (such as credit card or bank account numbers), or any other information or combinations of information that falls within the definition of “special categories of data” under applicable European Data Protection Law (defined in the DPA) or “sensitive information” under any other applicable law.
(b) The following describes general use restrictions for software-as-a-service offerings. Except as expressly allowed under this Agreement, Customer shall not, directly, indirectly or through its Affiliates, Authorized Users, employees, or independent contractors: (i) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties the benefit of the Services; (ii) "frame," "mirror,” copy or otherwise enable third parties to use the Services (or any component thereof) as a service bureau or other outsourced service; (iii) allow access to the Services by multiple individuals impersonating a single end user; (iv) modify or use the Services in a manner that interferes with, degrades, or disrupts the integrity or performance of any Lexion services, systems or other offerings, including, without limitation, data transmission, storage, and backup; (v) use the Services for the purpose of developing a product or service that competes with any of Lexion’s products or services; (vi) circumvent or disable any security features or functionality associated with the Services; (vii) access the Services or associated data through web scraping or any undocumented process or API; or (viii) use the Services in any manner prohibited by applicable law or treaties.
2.6 Optional Use of Beta Services. Lexion may offer a product, service, integration, or other feature available to Customer to try at Customer's election that is designated as beta, preview, trial, or other similar description (“Beta Service”). Beta Services are intended for evaluation purposes only and not suitable for production use. Unless otherwise agreed by the parties, use of any Beta Service will expire upon the earlier of: (a) the date provided by Lexion in an email notice; and (b) the date a version of the Beta Service becomes generally available without the applicable Beta Service designation. Lexion may discontinue a Beta Service at any time in its sole discretion. Customer understands that Beta Services are under development and may have flaws. As such, all Beta Services are provided “AS IS,” and Sections 6, 7, and 8.2(a) shall not apply to Customer’s use of any Beta Service, except that to the extent a Beta Service processes Customer Confidential Information (defined in Section 9 below) or Personal Data (defined in the DPA) this Section 2.6 shall not limit Lexion’s obligations under this Agreement regarding compliance with applicable laws and obligations under the DPA and under Section 9 below regarding the confidentiality of Customer Content.
3. Fees and Payment Terms
3.1 Fees and Taxes. In consideration of the rights granted herein and access to and use of the Services, Customer shall pay Lexion the amounts specified in an Order Form for the Services provided thereunder (“Fees”). Fees are non-refundable and non-cancelable unless expressly agreed otherwise under this Agreement. Taxes are continually evolving and vary by jurisdiction. As such, Fees specified in an Order Form 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 purchase or use of the Services (collectively, “Taxes”). Customer is solely responsible for the payment of any applicable Taxes. Lexion is responsible for any taxes based on Lexion’s net income, assets, payroll, property, and employees. If Lexion is required to pay Taxes on Customer’s behalf, Customer shall promptly reimburse Lexion for all amounts paid.
3.2 Billing and Payment Terms. Fees are payable in U.S. Dollars and invoiced per the billing frequency set out in the Order Form. All amounts shall be paid to Lexion within thirty (30) days of Lexion’s delivery of an invoice, unless expressly agreed otherwise by the parties in the relevant Order Form. If Customer reasonably disputes an invoice, Customer must deliver a written statement to Lexion no later than ten (10) days prior to the due date of such invoice listing all disputed items and providing a reasonably detailed description of each disputed item. In such event, the parties will work together in good faith to resolve any such dispute. If Customer does not so notify Lexion of its dispute of an invoice within such time period, such invoice is deemed undisputed and the right to dispute such invoice is waived. Lexion reserves (among other rights and remedies) the right to suspend Customer’s access to the Services if undisputed Fees are not paid when due. Amounts payable to Lexion shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation. Customer’s failure to pay any undisputed Fees when due shall be deemed a breach of a material obligation under this Agreement.
3.3 Overages and Upgrades. If Customer’s actual usage of the Services during a Subscription Term exceeds the allowance or scope stated in the Order Form (“Overage”), Customer will be invoiced for the Overage, prorated, based on the Fee set out in the then-current Order Form (or then-current pricing if not set out in such Order Form). Customer may elect to upgrade its Service package, add Professional Services or other then-available add-ons, modules or integrations, or increase the scope of its subscription to add additional users at the then-current rates (together, “Upgrade Fee”). With the exclusion of one-time Professional Services Fees which will be invoiced in full, Upgrade Fees will be prorated from the upgrade date (which is the date such upgrade was enabled in Customer’s Lexion account) and Customer will be invoiced thereafter. Following the end of the then-current annual period of the Subscription Term, any recurring Overage Fees or Upgrade Fees will be added to the then-current annual subscription fee for the Services and Customer will be billed accordingly.
4. Proprietary Rights and Data Protection
4.1 Rights to Customer Content. As between the parties, any rights in and to Customer Content are retained by Customer. The parties agree that Usage Data (defined as follows) and Feedback (defined in Section 4.4 below) are not considered Customer Content for purposes of this Agreement. As used herein, “Usage Data'' means data and other information pertaining to Customer’s use of the Services, including, but not limited to, the number of contracts processed and analyzed, the number of tasks created and completed, the number of searches or reports run, and the frequency of log-ins.
4.2 License to Customer Content. Customer, on behalf of itself and all authorized Affiliates, hereby grants to Lexion a limited, non-exclusive, royalty-free, worldwide license to use, copy, store, modify, distribute, transfer, and display all Customer Content solely for the purpose of providing the Services. Customer understands that to build and deliver a great product, Lexion improves the Services using Usage Data and aggregated and anonymized Customer Content. Accordingly, notwithstanding the foregoing, in compliance with applicable laws, this Agreement, and the DPA, Lexion may: (a) during and after the Term, use Usage Data to develop, improve, support, secure, market, and operate the Services, except that any Usage Data shared externally must be aggregated and anonymized and in a format that is not traceable back to Customer; and (b) improve the Services by producing artificial intelligence (“AI”) models that include Customer Content that has been de-identified, anonymized, and aggregated so that it does not identify Customer, Customer Affiliates, Authorized Users, or any other individual person or company (for example converting a governing law clause to a numerical representation that allows an AI model to better understand and identify variations of governing law clauses). Lexion agrees that once Usage Data and Customer Content are converted to a de-identified, aggregated and anonymized format (together, “De-Identified Data”), it cannot be re-identified.
4.3 Lexion’s Proprietary Rights. Customer understands that the Services, AI, and underlying technology are core to Lexion’s business. As such, all rights (including all ownership rights) not expressly granted to Customer under this Agreement or in an Order Form are reserved by Lexion, its suppliers, and licensors. Lexion and its licensors retain all right, title, and interest in and to Lexion’s name, logo, and other marks, the Services, any documentation related thereto, all underlying software, AI models, De-Identified Data, methodologies, and all components, updates, modifications, derivative works, and manifestations to the foregoing, including, but not limited to, all intellectual property and proprietary rights in the foregoing (including, without limitation, any changes which incorporate any Feedback) (collectively, “Lexion Technology”).
4.4 Feedback. Customer and any Authorized User may submit comments, suggestions, ideas, or other feedback to Lexion related to the Services or any Lexion Technology (together, “Feedback”). Customer hereby grants Lexion a perpetual and irrevocable license to use and exploit any portion of Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise. Any Feedback provided by Customer is AS IS and Lexion will not attribute to Customer any Feedback used.
4.5 Data Processing, Privacy, and Security. The Data Processing Addendum (“DPA”) available at https://www.lexion.ai/dpa includes terms required under applicable laws and regulations and contains security-related provisions. The DPA will be updated from time to time to meet the requirements of new Applicable Data Protection Laws (defined in the DPA). The parties agree that the terms of the DPA are hereby incorporated by reference. As described in the DPA, Lexion will maintain reasonable administrative, technical, and physical safeguards designed to protect Customer Content and any Personal Data processed, stored, collected, or transmitted by the Services. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by Lexion, the Standard Contractual Clauses (as defined in the DPA) shall apply, as further set forth in the DPA. For purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer's acceptance of this Agreement, and an applicable Affiliate's execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices.
5. Term and Termination Rights
5.1 Term and Renewals. The term of this Agreement will begin on the Effective Date and shall continue thereafter until all Order Forms have expired or terminated (“Term”). The term of Customer’s subscription to the Services is set out in the applicable Order Form (“Subscription Term”). Unless otherwise specified in such Order Form, Customer’s subscription to the Services shall thereafter automatically renew for additional periods of one (1) year (“Renewal Subscription Term”) unless: (a) Customer provides written notice of non-renewal to Lexion at least thirty (30) days before the start of a Renewal Subscription Term; or (b) Lexion provides written notice of non-renewal to Customer at least sixty (60) days before the start of a Renewal Subscription Term. Lexion will notify by email Customer’s then-current Service account administrators about ninety (90) days before a Renewal Subscription Term to discuss Service usage. Subject to the terms of the applicable Order Form, effective during a Renewal Subscription Term, Lexion reserves the right to charge Customer at Lexion’s then-current list price for Services then-used where such pricing will not include any discounts from the initial or immediately prior Subscription Term.
5.2 Mutual Right to Terminate For Cause. This Agreement or any Order Form may be terminated (a) by either party if the other party breaches or violates a material obligation under this Agreement and does not cure such violation or breach within thirty (30) days after receiving written notice thereof from the non-breaching party, (b) as expressly set out in this Agreement, or (c) by either party if the other party provides proof that it made a general assignment for the benefit of creditors, suffered or permitted the appointment of a receiver for its business or assets, or availed itself of or became subject to any proceeding under the US Federal Bankruptcy Act or any other foreign or domestic statute, law, rule or regulation relating to insolvency or the protection of rights of creditors. If Customer terminates this Agreement or an Order Form due to Lexion’s uncured breach of a material obligation, then Lexion will refund Customer a prorated amount of the prepaid annual subscription Fees paid by Customer to Lexion for the terminated Service based on the effective date of termination of this Agreement or Order Form and Customer will not be liable to pay Fees due for the unused portion of the remainder of the applicable Subscription Term. If Lexion terminates this Agreement due to Customer’s uncured breach of a material obligation, Lexion will not refund any Fees or other amounts paid by Customer and Customer remains liable for payment of all Fees due under this Agreement and all Order Forms.
5.3 Effect of Termination. Upon expiration or termination for any reason, Customer and all Authorized Users shall discontinue all use of the Services. If requested by Customer, within thirty (30) days following the expiration or termination of this Agreement and in the format that Lexion generally makes available to its customers (which format includes document files in their original file format and a CSV file of then-saved metadata associated with a file): (a) at no charge and subject to the functionality limitations of the Services, Lexion shall grant Customer limited access to the Services for the sole purpose of exporting Customer Content that’s then-capable of being exported from the Services and that’s then-stored in Customer’s Lexion account; or (b) make available to Customer all Customer Content that’s then-capable of being exported from the Services and then-stored in Customer’s Lexion account. Any non-standard file or data formats or delivery mechanism must be mutually agreed upon between the parties and may be subject to additional mutually agreed upon fees. After such thirty (30) day period, Lexion shall have no further obligation to retain any Customer Content and Customer consents to deletion by Lexion, except that Lexion may retain relevant information for financial reporting, compliance, or other legal purposes. Any Customer Content retained by Lexion for the foregoing reasons will continue to be protected by applicable terms of this Agreement and the DPA and will remain subject to confidentiality obligations set out in Section 9 below. The parties agree that definitions, payment obligations of either party, Sections 1, 2.6, 3, 4.2, 4.3. 4.4, 5.3 and 6-10, and other provisions that reasonably should survive to interpret the obligations or parties’ intent of this Agreement will survive any expiration or termination of this Agreement.
6. Indemnification From Third Party Claims
6.1 Protection of Customer From Third Party Claims. Subject to the terms set forth in this Section 6, at its expense, Lexion will defend Customer and its personnel, successors, and assigns from and against any Customer Claim (defined below) brought against them, and indemnify them for any judgment that a court of competent jurisdiction grants a third party on such Customer Claim or that’s awarded to a third party under any Lexion-approved settlement of any such Customer Claim. A “Customer Claim” means a third party claim, suit, or proceeding (which, for purposes of Section 6 of this Agreement, a “third party” is a party that is not a party to this Agreement or Order Form (or such party’s Affiliate)) alleging that the Services, when used as intended, infringe or misappropriate the intellectual property rights of a third party. If any portion of the Services is subject to a Customer Claim that prohibits or impairs Customer’s use of the Services, Lexion will, at its own cost and discretion, either procure for Customer the right to continue the Services or modify the Services so that they are non-infringing but retain materially equivalent functionality. If neither of the foregoing options are available on terms that are commercially reasonable for Lexion, then Lexion may terminate Customer’s right to access and use such portion of the Services subject to the Customer Claim, and Lexion will refund Customer any prepaid Fees for the unused portion of the applicable terminated Service’s Subscription Term, prorated from the effective date of termination.
6.2 Protection of Lexion From Third Party Claims. Subject to the terms set forth in this Section 6, at its expense, Customer will defend Lexion and its personnel, successors, and assigns from and against any Lexion Claim (defined below) brought against them, and indemnify them for any judgment that a court of competent jurisdiction grants a third party on such Lexion Claim or that’s awarded to a third party under any Customer-approved settlement of any such Lexion Claim. A “Lexion Claim” means a third party claim, suit, or proceeding alleging that the Customer Content, when processed or used as allowed under this Agreement, violate, misuse, infringe, or misappropriate the intellectual property, propriety, privacy, or other rights of a third party.
6.3 Tendering Claims. A party seeking indemnification hereunder (“Indemnitee”) must promptly notify in writing the other party (“Indemnitor”) of any claim for which defense and indemnification is sought per this Section 6. 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. Indemnitor has the sole right to control the defense of any claim for which it is providing indemnification hereunder with its choice of counsel, and such control extends to all negotiations relating to the settlement of any such claim (except that Indemnitor may not make any admissions on Indemnitee’s behalf or settle the claim unless the settlement unconditionally releases Indemnitee of all liability). Indemnitee understands that Indemnitor’s obligations under this Section 6 will be limited to the extent a court of final jurisdiction finds that Indemnitee contributed to the claim. Indemnitee may, at its own cost and expense and election, participate in the defense of any such claim. To the extent covered under this Section 6, indemnification is each party’s sole and exclusive remedy under this Agreement for any third party claims.
6.4 Mutual Limitation to Obligations. Neither party’s defense or indemnification obligations under this Agreement, SST, or the DPA will apply or will be comparatively reduced to the extent the underlying allegation arises from the Indemnitee’s fraud, gross negligence, willful misconduct, violation of any applicable law, or breach of any of its obligations under this Agreement. Lexion’s defense and indemnification obligations will not apply or will be comparatively reduced to the extent a Customer Claim arises from: (a) any Customer Content if used by Lexion as permitted under this Agreement; (b) any modification to the Services made by Customer, its Authorized Users, or a party at the direction of Customer or its Authorized Users without Lexion’s prior written consent if the Customer Claim would have been avoided in the absence of such modification; or (c) Customer’s use of the Services in breach of this Agreement (any of the foregoing subsections (a) to (c) are “Exclusions”).
7. Warranties and Disclaimers
7.1 Warranties. Each party warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein. Customer warrants that it has all rights and permissions to grant to Lexion the license and rights in and to Customer Content expressly set out in this Agreement. Lexion warrants to Customer that (a) the Services, as delivered and when used as intended, will be free from material defects, (b) the Professional Services will be performed in a professional manner in accordance with the standards in Lexion’s industry, and (c) Lexion will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “virus,” or other computer software routines within the Services that are intentionally designed to permit unauthorized access to or use of either the Services or Customer’s computer systems. In the event of any breach of the foregoing warranties, Lexion shall, as its sole liability and Customer’s sole remedy diligently remedy any deficiencies that cause the Services or Professional Services, as applicable, to not conform to the foregoing warranty. If Lexion determines this remedy to be impracticable, or otherwise is unable to provide a workaround within thirty (30) days of Customer notifying Lexion of the defect, then Customer may terminate the applicable Order Form as an uncured material breach in accordance with Section 5.2 above. Lexion will not be liable to the extent that any breach of the foregoing warranties are caused by any Exclusions.
7.2 Disclaimers. Subject to the applicable terms of the SLA Policy and except for the express warranties set forth herein, the Services are provided on an “AS IS,” “AS AVAILABLE” basis. To the maximum extent allowed under applicable law, the express warranties in this Agreement are the exclusive warranties offered by either party and neither party makes any warranties of any kind, whether express, implied, statutory, or otherwise, an each party disclaims all implied warranties, including, without limitation, any warranties of fitness for a particular purpose, accuracy, quiet enjoyment, title, non-infringement, merchantability and those that arise from any course of dealing or course of performance are hereby disclaimed.
8. Mutual Limitations on Liability
8.1 Aggregate Liability and Exclusion of Certain Types of Damages.
(a) TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW AND SUBJECT TO SECTION 8.2 BELOW, THE TOTAL AGGREGATE LIABILITY OF EACH PARTY AND ITS SUPPLIERS AND LICENSORS RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL AND PROVEN DIRECT DAMAGES INCURRED, UP TO THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER HEREUNDER AND ALL ORDER FORMS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO 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.
(b) TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW AND SUBJECT TO SECTION 8.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, 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 SERVICES. 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.
8.2 Exceptions and Interpretation.
(a) Notwithstanding anything to the contrary in this Agreement and to the maximum extent allowed under applicable law, Section 8.1 above will not apply to: (i) the amounts incurred by a party when acting as an Indemnitor under Section 6 above; (ii) Customer’s obligation to pay all Fees due under this Agreement and all Order Forms; or (iii) actual and proven damages incurred by a party arising from the other party’s intentional misconduct, fraud, or gross negligence. Notwithstanding anything to the contrary in this Agreement and to the maximum extent allowed under applicable law, a party’s aggregate liability to the other arising out of claims pursuant to: (A) its breach of its confidentiality obligations as a Receiving Party set forth in Section 9 below, will be limited to actual and proven damages in an amount not to exceed three (3) times the amount paid or payable by Customer to Lexion under this Agreement during the 12-month period immediately preceding the incident giving rise to the claim; and (B) a breach of its obligations under the DPA will be in accordance with limitation of liability terms set forth in the DPA.
(b) The parties agree that: (i) for purposes of this Agreement and the DPA, a breach of confidentiality claim described in Section 8.2(a)(A) is distinct and separate from a breach of DPA claim described in Section 8.2(a)(B); (ii) the limitations in Sections 8.1(a) and 8.1(b) above are independent of each other; and (iii) the limitation of damages set forth in Section 8.1(a) shall survive any failure of essential purpose of the limited remedy in Section 8.1(b). The parties agree that they have entered into this Agreement in reliance on the terms of this Section 8 and these terms form an essential basis of the bargain between the parties.
9. Mutual Confidentiality Obligations
9.1 Meaning of Confidential Information. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical, and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the disclosing party (together, “Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Service performance information, pricing terms, and documentation shall be deemed Confidential Information of Lexion. Customer Content shall be deemed Customer’s Confidential Information.
9.2 Standard of Care. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any of the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement, will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and will limit access to Confidential Information of Disclosing Party to those of its employees, contractors, advisors, and agents with a need to know or who need access for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as protective to those in this Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees or contractors of the Receiving Party who had no access to such information.
9.3 Compelled Disclosure and Equitable Relief. A Receiving Party may disclose Confidential Information if so required pursuant to a regulation, law, or court order, but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party. The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law in any court of competent jurisdiction.
10. General Provisions
10.1 Notices. Either party may give notice to the other party by means of electronic mail or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement. Customer must give notice to Lexion in writing by U.S. mail at 113 Cherry Street, PMB 65390, Seattle, WA 98104, Attn: Legal Department, with a copy of the notice sent to legal@lexion.ai. Lexion will provide notice to Customer at the email provided by Customer or to the mailing address designated on the most current Order Form (or the then-current mailing address provided by Customer).
10.2 Additional or Amended Terms. The parties may amend or supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement. Lexion shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, vendor portal, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by Lexion and counter-signed by its authorized agent.
10.3 Governing Law and Venue. 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, an Order Form, DPA, any Lexion Technology, or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington.
10.4 Assignment. Neither party may assign its rights or delegate obligations hereunder to a third party except (a) as may be expressly permitted in this Agreement or an Order Form, or (b) to a successor-in-interest pursuant to a merger, acquisition, reorganization, or sale of all or substantially all of such party’s assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns.
10.5 Logo Rights. Customer agrees that Lexion may identify Customer as a Lexion customer in or on Lexion’s website or other promotional materials. Lexion’s use of Customer’s name and logo will be in accordance with any Customer supplied guidelines. Upon Customer’s written request, Lexion will remove Customer’s name or any Customer marks from Lexion’s website, and to the extent feasible, any Lexion marketing materials. Customer owns and retains all rights in and to its name, logo, and other trademarks.
10.6 Third Party Systems. Customer understands that while the Services integrates with many third party systems, Lexion isn’t responsible for applications, services, software, or other products supplied by a third party (excluding Lexion’s licensors and contractors engaged to provide services or technology to deliver the Services) (each a “Third Party Service”) that Customer chooses to integrate with the Service (including, without limitation, a third party email service, customer relationship management system, or e-signature tool) even if Customer uses Lexion’s API to enable the integration with a Third Party Service. Use of a Third Party Service is subject to the terms of the agreement between Customer and the Third Party Service provider.
10.7 Miscellaneous. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. Except as otherwise provided in this Agreement, there are no third party beneficiaries under this Agreement. Any claims brought against Lexion may only be brought by the Customer entity that executed the relevant Order Form. No joint venture, partnership, employment, agency, or exclusive relationship exists between the parties as a result of this Agreement or use of the Services. Customer agrees that its purchase of the Services under this Agreement is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Lexion regarding future functionality or features. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) Customer will not permit any Authorized Users to access or use the Services in violation of any U.S. export embargo, prohibition, or restriction. Customer agrees not to export, re-export or transfer any part of the Services in violation of export laws and regulations.
10.8 Entire Agreement. This Agreement, together with all Order Forms, and terms referenced herein (SST, DPA, SLA Policy), 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.
