PLEASE READ THESE LUCIDLINK TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY LUCIDLINK CORP. (“LUCIDLINK”). BY CLICKING THE “AGREE” (OR SIMILAR) BUTTON ON AN ONLINE ORDER FORM (AN “ORDER FORM”) OR BY USING THE SERVICES IN ANY MANNER, YOU (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THESE TERMS OF SERVICE TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO THAT ORGANIZATION OR ENTITY. IF A SEPARATE SIGNED WRITTEN AGREEMENT WITH RESPECT TO THE SERVICES EXISTS BETWEEN CUSTOMER AND LUCIDLINK, THE TERMS OF THAT SIGNED WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY LUCIDLINK) SHALL TAKE PRECEDENCE OVER THESE TERMS OF SERVICE, AND YOU ACKNOWLEDGE THAT CUSTOMER IS BOUND BY THE TERMS OF THAT SIGNED WRITTEN SERVICES AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Order Forms; Access to the Service
Support; Service Levels
LucidLink will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, LucidLink reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to LucidLink. Subject to the terms hereof, LucidLink will provide reasonable support to Customer for the Services from Monday through Friday during LucidLink’s normal business hours, excluding U.S. government holidays.
If Customer participates in a free trial as set forth on an Order Form, subject to the terms and conditions of this Agreement (including any Usage Limitations and restrictions set forth on the applicable Order Form) and during the free trial term set forth on the Order Form only (“Free Trial Term”), LucidLink will provide Customer with access to the Services free of charge but only for the purpose of Customer’s internal evaluation of a paid subscription. Such free trial shall terminate upon the earlier of (a) the expiration of the Free Trial Term, (b) the commencement of a paid subscription to the Services pursuant to this Agreement, and (c) notice by either Party. NOTWITHSTANDING ANYTHING TO THE CONTRARY, DURING A FREE TRIAL, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
From time to time, LucidLink may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that LucidLink shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that LucidLink may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that LucidLink shall use commercially reasonable efforts to give Customer sixty (60) days prior notice of any major changes.
As between the parties, LucidLink retains all right, title, and interest in and to the Services, and all software, APIs, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by LucidLink for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may from time to time provide suggestions, comments or other feedback to LucidLink with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for LucidLink notwithstanding anything else. Customer shall, and hereby does, grant to LucidLink a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair LucidLink’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
Payment for Services. The Services are subject to payment as set forth on the Order Form. Any payment terms presented to Customer in the process of using or signing up for the Services are deemed part of this Agreement.
Billing. LucidLink uses third-party payment processors (each a, “Payment Processor”) to bill Customer through a payment account linked to Customer’s account on the Services (the “Billing Account”) for use of the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. LucidLink is not responsible for error by the Payment Processor. By choosing to use the Services, Customer agrees to pay LucidLink, through the Payment Processor, all charges at the prices then in effect for any use of such Services in accordance with the applicable payment terms and Customer authorizes LucidLink, through the Payment Processor, to charge Customer’s chosen payment provider (the “Payment Method”). Customer agrees to make payment using that selected Payment Method. LucidLink reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
Payment Method. The terms of Customer’s payment will be based on its Payment Method and may be determined by agreements between Customer and the financial institution, credit card issuer or other provider of its chosen Payment Method. If LucidLink, through the Payment Processor, does not receive payment from Customer, Customer agrees to pay all amounts due on its Billing Account upon demand.
Auto-Renewal for Services. The Services are subject to auto-renewal and will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If Customer terminates a Service, Customer may use its subscription until the end of its then-current term and, if Customer cancels the applicable Service no later than [fifteen (15) days] prior to the end of the recurring term, its subscription will not be renewed after its then-current term expires. However, Customer will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. For clarity, if Customer does not want to continue to be charged on a recurring monthly basis, Customer must cancel the applicable Service through its account settings or terminate Customer’s LucidLink account no later than [fifteen (15) days] prior to the end of the recurring term.
Current Information Required. CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR ITS BILLING ACCOUNT. CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP ITS BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER MUST PROMPTLY NOTIFY LUCIDLINK OR OUR PAYMENT PROCESSOR IF CUSTOMER’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF CUSTOMER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT LUCIDLINK MAY CONTINUE CHARGING CUSTOMER FOR ANY USE OF SERVICES UNDER ITS BILLING ACCOUNT UNLESS IT HAS TERMINATED ITS SERVICES AS SET FORTH ABOVE.
Change in Amount Authorized. LucidLink reserves the right to change the amount it charges for the Services. If the amount to be charged to Customer’s Billing Account varies from the amount Customer preauthorized (other than due to the imposition or change in the amount of state sales taxes), Customer has the right to receive, and LucidLink shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement Customer has with its payment provider will govern Customer’s use of its Payment Method. Customer agrees that LucidLink may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle. Note that if Customer use of the Services exceeds the Usage Limitation set forth on the Order Form, and LucidLink provides such Service, LucidLink reserves the right to charge additional fees.
Reaffirmation of Authorization. Customer’s non-termination or continued use of a Service reaffirms that LucidLink is authorized to charge the Payment Method for that Service. LucidLink may submit those charges for payment and Customer will be responsible for such charges. This does not waive LucidLink’s right to seek payment directly from Customer. Customer’s charges may be payable in advance, in arrears, per usage, or as otherwise described when Customer initially selected to use the Service.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any LucidLink product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures LucidLink may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
Confidentiality; Customer Data; Publicity
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not LucidLink, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. LucidLink shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. LucidLink will use commercially reasonable efforts to prevent unauthorized access to Customer Data or the unauthorized use of Customer’s account to the Service. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that LucidLink may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services and any support or consultation services to Customer and (B) generating Aggregated De-Identified Data (as defined below), and (ii) freely use and make available Aggregated De-Identified Data for LucidLink’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing LucidLink’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by LucidLink in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer or any individual. Notwithstanding anything else, LucidLink is permitted to disclose (including through display of Customer’s logo) that Customer is one of its customers (including in its publicity and marketing materials).
This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew as set forth in Section 6(d) (each, a “Renewal Order Form Term”) unless Customer terminates this Agreement as set forth in Section 6(d) or LucidLink notifies Customer or its intention not to renew no later than fifteen (15) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within fifteen (15) days of receipt of such notice. Without limiting the foregoing, LucidLink may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with LucidLink’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) LucidLink shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, LucidLink shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) if Customer remediates the issue and provides notice thereof, LucidLink will use reasonable efforts to reinstate Customer’s use of or access to the Service, as applicable, within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Customer will indemnify and hold harmless LucidLink, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses from a third party claim arising from or relating to Customer’s access to the Services, Customer’s use of the Services, Customer’s violation of this Agreement, or the infringement by Customer or any third party using Customer’s account of any intellectual property or other right of any third party.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
Limitation of Liability
IN NO EVENT SHALL LUCIDLINK, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO LUCIDLINK HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
This Agreement represents the entire agreement between Customer and LucidLink with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and LucidLink with respect thereto. This Agreement is governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled in San Francisco, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in San Francisco County, California. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. CUSTOMER UNDERSTANDS AND AGREES THAT BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND LUCIDLINK ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business or assets relating to this Agreement, and (ii) LucidLink may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.