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Lucidworks Cloud:
Terms of Service

THESE TERMS AND CONDITIONS (the “Agreement”) GOVERN YOUR ACQUISITION AND USE OF THE LUCIDWORKS HOSTED APPLICATION, UNLESS AND UNTIL A LATER, SEPARATE WRITTEN AGREEMENT COVERING ACQUISITION AND USE OF THE LUCIDWORKS HOSTED APPLICATION IS SIGNED BY AUTHORIZED REPRESENTATIVES OF LUCIDWORKS AND CUSTOMER.

IF YOU REGISTER FOR A FREE TRIAL FOR THE HOSTED APPLICATION, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

YOU (“Customer”) ENTER INTO, ACCEPT THIS AGREEMENT, AND AGREE TO ITS TERMS (A) BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, (B) BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR © BY USING THE LUCIDWORKS HOSTED APPLICATION.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “Customer” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.

IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE HOSTED APPLICATION.

NEITHER YOU, NOR ANY COMPANY OR OTHER LEGAL ENTITY ON BEHALF OF WHICH YOU ARE ENTERING INTO THIS AGREEMENT, MAY ACCESS THE HOSTED APPLICATION IF YOU OR THAT ENTITY IS A DIRECT COMPETITOR OF LUCIDWORKS, EXCEPT WITH LUCIDWORKS’ PRIOR WRITTEN CONSENT. IN ADDITION, NEITHER YOU NOR THAT LEGAL ENTITY MAY ACCESS THE HOSTED APPLICATION FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

THIS AGREEMENT IS EFFECTIVE BETWEEN CUSTOMER AND LUCIDWORKS AS OF THE DATE YOU ACCEPT THIS AGREEMENT, AND WILL REMAIN IN EFFECT UNTIL ALL SUBSCRIPTIONS AND FREE TRIALS HAVE EXPIRED OR BEEN TERMINATED, OR UNTIL A LATER, SEPARATE WRITTEN AGREEMENT BETWEEN LUCIDWORKS AND CUSTOMER HAS BEEN SIGNED AND DELIVERED BY BOTH PARTIES.   TERMS AND CONDITIONS

  1. Hosted Applications and Documentation. “Hosted Application(s)” means those web-based applications subscribed to by Customer, which Lucidworks will make accessible to Customer during the subscription term on a website designated by Lucidworks, in accordance with the Documentation. “Documentation” means standard specifications for the Hosted Applications, information relating to the operation and use of the Hosted Applications, applicable support knowledge bases, and similar materials provided by Lucidworks with the Hosted Applications. The definitions in this Section include all upgrades, updates, or other modifications to the Hosted Applications or Documentation, as applicable, which are performed by or on behalf of Lucidworks and provided to Customer. Lucidworks may update or otherwise modify a Hosted Application or the Documentation at any time.

  2. Subscription Term and Termination.

    1. Subscription Term and Termination. The initial subscription term for a Hosted Application shall commence on the date Customer agrees to this Agreement and remain in effect for the term specified in the order. Paid annual subscriptions will automatically renew for additional 12-month terms at the end of the initial subscription term and each renewal term, unless either party notifies the other of its intent not to renew such subscription at least thirty (30) days before the expiration of the then-current subscription term. Lucidworks will have no obligation to provide access to the Hosted Application once the subscription has expired or been terminated. ii. Agreement Term and Termination. This Agreement is valid until all subscriptions entered into hereunder have expired or been terminated. This Agreement will automatically terminate if no subscriptions are in effect. In addition, if either party materially breaches this Agreement and does not cure the breach within thirty (30) days of the other party’s written notice specifying the breach, the other party may, at its election, terminate this Agreement for cause. Either party may also terminate this Agreement at any time for cause if the other party files a petition or seeks relief under the bankruptcy or insolvency laws of any state, the United States, or a foreign jurisdiction. iii. Effect of Termination. Upon expiration or termination of this Agreement: (a) each party will return to the other party the Confidential Information of the other party; (b) Customer may no longer access the Hosted Applications; (c) Lucidworks will have no further obligation to provide the Hosted Applications to Customer; and (d) Customer will immediately pay to Lucidworks any fees or expenses incurred prior to the effective date of termination. iv. Customer Termination for Cause. Upon any termination for cause by Customer, provided all fees and expenses due to Lucidworks have been paid in full, Lucidworks will refund to Customer any prepaid fees for the portion of any subscription term remaining after the effective date of termination.

    2. Retrieval of Customer Data at Termination. With prior written notice to Lucidworks, Customer will have ten (10) days following termination or expiration of any paid subscription to a Hosted Application to retrieve Customer Data (as defined in Section 8) remaining on the Hosted Application at the time of termination. Lucidworks does not agree to make such Customer Data available to Customer in any particular format or medium. After such ten (10) day period, Lucidworks has no obligation to maintain or provide any Customer Data and may (unless otherwise prohibited by law) delete all Customer Data in its systems, in its possession, or under its control. vi. Survival. Sections 1 through 14 and 16 through 22 of this Agreement will survive expiration or termination of this Agreement.

  3. Payments, Expenses, and Taxes.

    1. Payment Terms. If Customer enters into a separate Order Form with Lucidworks, unless otherwise specified in that Order Form, Customer will pay Lucidworks the fees and expenses specified in the Order Form net 30 days from the date of the invoice from Lucidworks. ii. Taxes. Lucidworks’ fees do not include taxes. Customer is responsible for all taxes resulting from this Agreement, other than taxes on Lucidworks’ net income. iii. Fee Changes. Lucidworks may change the price of a subscription for a Hosted Application at any time, and will provide Customer notification of such change. However, any subscription price changes will not be effective until Customer’s next renewal term, and will not change Customer’s then-current subscription fees. iv. Decreases at Renewal Negate Discounts. If the level, volume or quantity of Hosted Applications ordered is decreased by Customer at the time the subscription is renewed, such decrease will negate any discounts previously provided to Customer.

  4. Right to Access and Use. During the subscription term, Customer has the nonexclusive, non-assignable, worldwide, limited right to use the Hosted Applications solely for Customer’s internal business operations and subject to the terms and conditions of the Documentation and this Agreement. Customer is responsible for its users’ compliance with the terms and conditions of this Agreement. No license to use any portion of Hosted Applications outside of the scope of this Section or the duration of the subscription is granted to Customer in this Agreement.

  5. Restrictions on Use. Customer may not: (i) copy reproduce, modify, adapt, alter, translate, or create derivative works from the Hosted Applications; (ii) reverse-engineer, decompile or reverse-compile, disassemble, or attempt to derive the source code for any portion of the Hosted Applications, including data structures or processes, or access it in order to copy any ideas, features, content, functions or graphics of the Hosted Applications; (iii) distribute, sublicense, lease, rent, loan, or otherwise transfer all or any part of the Hosted Applications in any form or by any means, including electronic means, to any third party, except as expressly authorized by this Agreement; (iv) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Lucidworks or others contained on or within any part of the Hosted Applications; (v) merge or use the Hosted Applications with any software or hardware for which it was not intended or other than as described in the Documentation; (vi) use the Hosted Applications in any time-sharing, outsourcing, service bureau, hosting, or application service provider environments; (vii) use the Hosted Applications for the purpose of third party training; (viii) use any portion of the Hosted Applications in order to build or support, or assist another to build or support, products or services competing with Lucidworks; (ix) perform, or disclose the results of, any benchmark tests on the Hosted Applications without Lucidworks’ prior written consent; (x) interfere with or disrupt the integrity or performance of the Hosted Applications or attempt to gain unauthorized access to the Hosted Applications or its related software, systems, platforms, applications, or networks; (xi) use the Hosted Applications to store or transmit fraudulent, infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights; (xii) use the Hosted Applications to store or transmit viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs; (xiii) use any components provided with the Hosted Applications separately from the Hosted Applications, or (xiv) use the Hosted Applications other than as described in the Documentation, or for any unlawful purpose. Lucidworks may audit and monitor Customer’s use of the Hosted Applications.

  6. Protected Information. Unless otherwise agreed by the parties, Customer will not submit to the Hosted Applications (or use the Hosted Applications to collect): (i) any personally identifiable information (including without limitation any information that contains any unique identifier for an individual, that can be used to authenticate an individual’s identity, or that is, or can be, linked to one of the preceding types of information); (ii) any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health (“HITECH”), or any similar federal or state laws, rules or regulations; (iii) any information with respect to payment card or other financial accounts or transactions, with or without any card validation codes, security codes, access codes, personal identification numbers, passwords, validity dates or magnetic stripe or electronic chip data that would permit access to such account; or (iv) any other information subject to regulation or protection under specific laws (such as the Gramm-Leach-Bliley Act or related regulations), (together, the information referenced in (i) through (iv) is “Protected Information”). Customer acknowledges that Lucidworks is not acting as its Business Associate (as defined in HIPAA), and that the Hosted Applications are not HIPAA or Payment Card Industry Data Security Standard (“PCI DSS”) compliant. Notwithstanding any other provision to the contrary, Lucidworks has no liability under this Agreement for any claims related to Protected Information.

  7. 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 (i) Customer Data, including Protected Information; (ii) unauthorized access to the Hosted Applications by means of Customer’s account or the access information of any of Customer’s users; or (iii) Customer’s use of the Hosted Applications 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. This indemnification obligation is contingent on Lucidworks notifying Customer promptly, in writing, of the claim (except that failure to promptly notify Customer will not limit, impair or otherwise affect the indemnification rights under this Section unless Customer is prejudiced by that failure, and then only to the extent of the prejudice); and granting Customer sole control of the defense and all negotiations for settlement or compromise of such claim (however Customer may not settle any claim without Lucidworks’ prior written consent unless that settlement includes a full and final release of all claims against Lucidworks and its officers, directors, and employees, and does not impose any obligations on Lucidworks or any of the other indemnitees).

  8. Customer Obligations. Customer will make every reasonable effort to prevent unauthorized third parties from accessing or using the Hosted Applications, and will notify Lucidworks promptly of any unauthorized access or use. Customer is solely responsible for the actions of any person or entity which receives access to the Hosted Applications through Customer’s systems, or any Customer log-in or access code, whether or not such access is authorized by Customer. Customer is responsible for complying with all applicable laws and other legal requirements when using the Hosted Applications, including applicable privacy laws and regulations relating to the collection, use, processing and transfer of Customer Data. “Customer Data” means all electronic data or information submitted by Customer to the Hosted Applications, or collected by Customer by means of the Hosted Applications. Customer acknowledges that the Hosted Applications may require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated, and consents to such transfer. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data. As between the parties, Customer Data is owned by Customer, and is Customer’s Confidential Information (as defined in Section 17).

  9. Feedback. “Feedback” means any ideas, features, improvements, information, comments, suggestions, or inventions related to the Hosted Applications which are provided by Customer or its representatives to Lucidworks, and all intellectual property rights therein. Lucidworks owns and retains all rights to Feedback, and may freely use, copy, disclose and exploit any Feedback without any obligation, royalty or restrictions based on intellectual property rights or otherwise. Customer hereby assigns to Lucidworks all of Customer’s and its representatives’ rights, title and interest in and to the Feedback.

  10. Ownership; Intellectual Property Rights. Lucidworks or its licensors owns and retains all right title and interest to the Hosted Applications, Documentation, all related transactional and performance data, and all other software, hardware, applications, platforms, technology, tools, and other items related to the Hosted Applications. This Agreement does not grant Customer any intellectual property rights in or to any portion of the Hosted Applications. Customer will retain all ownership and intellectual property rights to Customer Data processed with the Hosted Applications.

  11. Open Source Software. “Open Source Software” means any software or technology that is licensed under any open source, freeware, shareware, or similar licensing or distribution models. Without limiting the generality of the foregoing, Apache Solr and Apache Lucene are Open Source Software. Access to Open Source Software technology may be included with the Hosted Applications. Customer’s right to use such Open Source Software technology is governed by the terms of the applicable open source license agreement, and Open Source Software is not licensed under or otherwise subject to this Agreement.

  12. Free Trial. The term of the applicable trial subscription and the term of this Agreement will end (for the applicable free trial products, not for any paid subscriptions entered into by Lucidworks and Customer) at the end of the free trial period. During any free trial period, the Hosted Applications are provided “AS-IS” and no support services, warranties, or service level agreements are provided for the Hosted Applications during the free trial. However, as time permits, Lucidworks will make commercially reasonable efforts to address reasonable questions or reproducible operating errors that are communicated by Customer to Lucidworks. Lucidworks will not have any liability, including any indemnification obligations, under this Agreement to Customer, its users, or to any third party during any free trial period or as a result of any free trial. ANY CUSTOMER DATA OR CUSTOMIZATIONS MADE TO THE HOSTED APPLICATIONS BY OR ON BEHALF OF CUSTOMER DURING A FREE TRIAL WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD.

  13. Use of Customer Data. Customer hereby grants to Lucidworks a worldwide, royalty-free, non-exclusive license to access, use, interact with, retrieve, collect, store, display, compile, copy, modify and index Customer Data (i) as necessary to provide the Hosted Applications to Customer and manage Customer access to the Hosted Applications; (ii) to manage Lucidworks’ relationship with Customer; (iii) as necessary to comply with any legal or regulatory obligations; and (iv) as otherwise permitted under this Agreement.

  14. Aggregated Data. Lucidworks may (i) collect information related to Customer’s use of and the performance of the Hosted Applications; (ii) anonymize Customer Data and performance data (by removing any identifiers for Customer or any individuals); (iii) aggregate that anonymized data with anonymized data from Lucidworks’ other customers; and (iv) analyze, report, display, benchmark, disclose, market, sublicense and distribute the aggregated, anonymized data for Lucidworks’ commercial, business and marketing purposes.

  15. Support Specifics and Service Level Agreements.

    1. Support services include (a) answering phone and email questions from Customer Support Coordinators (as defined below) regarding the operation of the Hosted Applications; (b) attempting to identify causes of suspected Errors (as defined below) occurring on the Hosted Applications; (c) addressing confirmed Errors in the Hosted Applications; and (d) any additional support services specified in the Order Form. Unless otherwise mutually agreed in writing, Lucidworks will have no obligation to provide on-site support services at Customer’s location. When Support Coordinators notify Lucidworks of a suspected Error in the Hosted Applications, Lucidworks will use commercially reasonable efforts to reproduce such suspected Error. If Lucidworks identifies an Error, it will use commercially reasonable efforts to correct the Error in accordance with the service level commitments and procedures set forth below.

    2. “Error” means a reproducible failure of the Hosted Applications to perform in substantial conformity with its Documentation, if any.

    3. “Incident” means a single question or issue posed by Customer with respect to the Hosted Applications.

    4. Authorized Support Coordinators. Customer will designate specific Customer personnel (the “Support Coordinators”) for requesting and receiving support services from Lucidworks, and Lucidworks will provide support services only to those designated Support Coordinators. Customer will provide Lucidworks with the names of the Support Coordinators upon execution of this Agreement.

    5. Number of Authorized Support Coordinators. Lucidworks may limit the number of Support Coordinators in proportion to the purchased subscriptions.

    6. Customer Support-Related Obligations. As a condition to Lucidworks’ support services obligations under this Agreement, Customer 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 its designated Support Coordinators are sufficiently qualified and familiar with the Hosted Applications and Customer systems so as to provide Lucidworks with reasonable assistance in diagnosing and addressing Errors.

    7. Scheduled Maintenance. Lucidworks will communicate with Customer regarding scheduled maintenance via official channels.

    8. Availability.

      1. “Availability” is measured on a quarterly basis and means the time that the Hosted Application is available.

        • The Availability percentage is calculated as ((A-B)/A) * 100

        • A is the number of minutes in the quarter, less Excused Downtime

        • B is the number of minutes in the quarter the Hosted Application is Not Available, except during Excused Downtime

      2. “Not Available” means, for the end user search functionality of the Hosted Application, (A) a material production system, function or process is not performing or not available for Customer’s use, and (B) the problem is with the Hosted Applications, or is caused by Lucidworks’ (and not Customer’s or any third party’s) personnel, equipment, software, or services, and © is not due to a Force Majeure (as defined in Section 22 below) event.

      3. “Excused Downtime”: means time the Hosted Applications are Not Available due to scheduled or emergency maintenance; Not Available due to Customer’s request; Not Available due to Customer’s (or its representatives’) actions or omissions (including without limitation when the Hosted Application is Not Available to Customer due to actions taken by Lucidworks in response to Customer’s actions or omissions, for example, if Customer actions or omissions create network or platform stability issues); Not Available as a result of Customer misuse of the Hosted Application; Not Available as a result of Customer’s breach of this Agreement (as examples, but not limited to, an unapproved penetration test, vulnerability scan, or other attack initiated by Customer); Not Available due to Customer or third party devices or infrastructure (e.g., network components, hardware, software or ISP/network access, or other devices); Not Available for a continuous period of five (5) minutes or less, without any further outage of a similar nature within the next four (4) hours; or Not Available due to a Force Majeure event.

    9. Severity Level Definitions.

      1. Severity 1: A reported Incident, which has a severe commercial impact on Customer’s business which either makes the Hosted Application inoperable or prevents content discovery.

      2. Severity 2: A reported Incident, which has a significant commercial impact on Customer’s business which either makes one or more critical areas of functionality inoperable or prevents content discovery, and any workaround has a significant operational impact.

      3. Severity 3: A reported Incident, which has a moderate commercial impact on Customer’s business which either makes one or more non-critical areas of functionality inoperable or results in serious inconvenience to a significant number of Customer’s users, and a workaround has a only a minor operational impact.

      4. Severity 4: A reported Incident, which has no commercial impact on Customer’s business or does not affect any critical areas of functionality and only results in minor inconvenience to a small number of Customer’s users, and a workaround has a only a minor operational impact.

      5. Support: “Business Day” and “Business Hours” Definitions Monday through Friday, excluding holidays from 8:00 am to 6:00 pm at Customer’s headquarters Lucidworks Knowledge Portal Access to the Lucidworks Knowledge Portal is available 24 hours per day, 7 days per week Severity 1 Incident Support Initial response time of eight (8) hours; Lucidworks’ support personnel will work to resolve the issue until a temporary workaround is in place; a permanent repair will be performed during Business Hours Severity 2 Incident Support Initial response time of twelve (12) Business Hours Severity 3 Incident Support Initial response time of two (2) Business Days Severity 4 Incident Support Initial response time of three (3) Business Days “Availability Goal” Definition 99.5% Availability

    10. Service Level Agreement; Service Credits. If Availability in any quarter drops below the Availability Goal (see chart above), Lucidworks will provide Customer with a credit (a “Service Credit”), for use toward future Lucidworks fees, equal to the greater of (a) ten percent (10%) of the prorated subscription fee applicable to one calendar quarter, or (b) a percentage of the quarterly subscription fee equal to the percentage of time during the quarter the Hosted Applications were Not Available, except during Excused Downtime (as an example, if the percentage of time the Hosted Application is Not Available during the quarter, except during Excused Downtime, is fifteen percent (15%), then the Service Credit will be fifteen percent (15%) of the subscription fee for that quarter). To obtain a Service Credit, Customer must notify Lucidworks of the failure in writing as set forth in Section 22(i), with the heading “Service Credit Request” prominently written at the top of the notice, within 30 days after the end of the applicable quarter. Upon verification that a Service Credit is owed to Customer for the quarter in question, Lucidworks will issue the Service Credit. If the Service Credit is reasonably disputed by Lucidworks, Customer and Lucidworks will work together in good faith to resolve such dispute in a timely manner. Service Credits have no cash value. In the event Customer pursues additional damages against Lucidworks under this Agreement, Service Credit amounts issued by Lucidworks to Customer will be applied toward any limit of liability for those damages. Customer may agree in writing to waive or reduce any Service Credits which would otherwise be due for a particular quarter. The Service Credits specified in this Section are Lucidworks’ sole liability, and Customer’s exclusive remedy, for any failure by Lucidworks to meet the Availability Goal. xii. Exclusions from Support. Lucidworks is not required to provide resolutions for immaterial defects. Lucidworks will have no obligation to correct Errors caused by (a) any modification of the Hosted Applications (including any attempted Error correction) not performed by Lucidworks, (b) any Customer or third party product, or (c) Customer’s systems. No support services will be provided by Lucidworks if payment of any Lucidworks invoice to Customer is overdue. The following are also excluded from support, if applicable:

      • Integration

      • Customization

      • Custom Software Development

      • Training

      • Assistance with Administrative Functions

  16. Out-of-Scope Services. Should Customer request that Lucidworks provide services in connection with problems that are beyond the scope of this Agreement, Customer will pay for any such services that Lucidworks, in its sole discretion, agrees to perform, on a time-and-materials basis, at Lucidworks’ then-current rates.

  17. Confidential Information. “Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Without limiting the foregoing, the Hosted Applications, Documentation, Feedback, and related software, platforms, applications, processes, performance and similar data, and technology will be deemed to be Lucidworks’ Confidential Information, whether or not so marked. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below and (iii) not to use any Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this Section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) was rightfully received from a third party authorized to make such disclosure without restriction; or (d) was independently developed by the receiving party without reference to the disclosing party’s Confidential Information. If there is any conflict between this Section and any separate, active, non-disclosure agreement signed by authorized representatives of both parties, the separate non-disclosure agreement shall control.

  18. Warranty; Disclaimer.

    1. Warranty. Lucidworks warrants that during the subscription term the Hosted Applications (excluding Open Source Software components) will perform in all material respects with Lucidworks’ then-current specifications for the Hosted Applications. In the event of a breach of this warranty, Customer will provide Lucidworks with written notice of breach, specifying in detail how the warranty has been breached. If Lucidworks has not remedied the breach (or responded in writing with evidence that there is no breach) within sixty (60) days after receipt of the breach notice, as Customer’s sole and exclusive remedy and Lucidworks’ sole liability, Customer may terminate its subscription in writing, end all access to the Hosted Applications, and receive a pro-rated refund of any pre-paid, unused, subscription fees covering the period of time from the date Lucidworks receives the termination notice through the end of the current subscription term. Any Service Credits due to Customer, or issued to Customer under this Agreement but not yet redeemed by Customer, become null and void upon Customer’s termination for breach of warranty under this Section.

    2. EXCEPT AS EXPRESSLY PROVIDED FOR ABOVE, LUCIDWORKS DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE HOSTED APPLICATIONS OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. THE HOSTED APPLICATIONS 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.

  19. Injunctive Relief. Each party acknowledges that the other will be irreparably harmed if the confidentiality obligations, intellectual property rights, or licensing obligations and restrictions under this Agreement are not specifically enforced, that money cannot satisfactorily remedy such harm, and that the non-breaching party would not have an adequate remedy at law in the event of a violation by the other party of its obligations under this Agreement. Therefore, each party agrees and consents that the non-breaching party, in addition to any other remedies available at law or under this Agreement, will be entitled to an injunction or any appropriate decree of specific performance for any threatened or actual violation or breach of such obligations or restrictions, either by such party or its employees, consultants or agents.

  20. Infringement. Lucidworks will defend any claim brought against Customer by any third party alleging that the Hosted Applications, or portion thereof (excluding Open Source Software components), infringe any existing United States copyright, provided that Customer notifies Lucidworks promptly in writing of the claim and grants Lucidworks sole control of the defense and of all negotiations for settlement or compromise thereof. The Lucidworks defense obligations described above will not apply to the extent that the claim or infringement was caused by (i) Customer’s negligent acts or omissions; (ii) Customer’s breach of this Agreement; (iii) Customer’s intentional misconduct; (iv) Customer’s violation of any applicable law; (v) Lucidworks’ compliance with specification or detailed instructions submitted by Customer; (vi) Customer’s modification of the Hosted Applications; or (vii) Customer’s use of the Hosted Applications in combination with software, hardware, or technology that was not provided by Lucidworks.

  21. Limitation of Liability. EXCEPT FOR A BREACH OF THE RESTRICTIONS ON USE, INTELLECTUAL PROPERTY RIGHTS, INDEMNITY, OR CONFIDENTIAL INFORMATION PROVISIONS OF THIS AGREEMENT: (i) NEITHER PARTY WILL BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS 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 HOSTED APPLICATIONS; AND (ii) REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF ACTION, EACH PARTY’S TOTAL CUMULATIVE LIABILITY FOR ACTUAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER FOR THE HOSTED APPLICATION GIVING RISE TO SUCH LIABILITY DURING THE TWELVE MONTHS PRIOR TO THE DATE THE DAMAGES WERE INCURRED. THE PARTIES ACKNOWLEDGE THAT THE FEES PAID PURSUANT TO THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT, AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THE LIMITS OF LIABILITY IN THIS SECTION DO NOT APPLY TO FEES OWED TO LUCIDWORKS BY CUSTOMER.

  22. General.

    (i) General. Neither party shall be liable for delay in performance hereunder due to causes beyond its control, including but not limited to acts of God, fires, strikes, acts of war, or intervention by governmental authority (each, a “Force Majeure” event). Either party may assign this Agreement in its entirety to (i) any entity under the common control of such party; or (ii) any successor in interest to such party by way of merger or consolidation; or (iii) a purchaser of all or substantially all of the assets of such party, provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement. Each party is acting in performance of this Agreement as an independent contractor. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Any notices or communication under this Agreement shall be in writing and shall be hand delivered or sent by registered mail return receipt requested to the address set forth on the Order Form, or such other address as either party may in the future specify to the other party. Notices regarding breach, termination, or service credits sent to Lucidworks shall be addressed to: Lucidworks, Inc., Attention: Chief Financial Officer, 717 Market Street, Suite 800, San Francisco, CA 94103. The laws of the State of California in the United States of America will govern this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the courts in San Francisco County, California. The parties agree that this Agreement is written and construed in the English language. A failure of either party to exercise any right provided for herein, shall not be deemed to be a waiver of any right hereunder. This Agreement sets forth the entire understanding of the parties as to the subject matter therein and may not be modified except in a writing executed by both parties. Any contractual terms contained in any Customer purchase orders or other ordering documents that add to or conflict with the terms in this Agreement will not be applicable to any transaction between the parties, and such terms are hereby rejected by Lucidworks. In the event any one or more of the provisions of this Agreement is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall together constitute one and the same agreement.

    (ii) Compliance. In connection with this Agreement, Customer will comply with all applicable laws and regulations, including any applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations. Customer is solely responsible for compliance related to the manner in which it chooses to use the Hosted Applications, including the transfer and processing of Customer Data, the provision of Customer Data to users, and the region in which any of the foregoing occur. Customer represents and warrants that (a) it, and any party that owns or controls Customer, is not located in, under the control of, or a national or resident of any prohibited country, and is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority; and (b) no Customer Data is controlled under the US International Traffic in Arms Regulations. The Hosted Applications are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.

    (iii) Federal Acquisition Regulation. The Hosted Applications are provided to the United States Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data.” as such terms are defined in the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFAR”), with the same rights and restrictions generally applicable to the Hosted Applications. The Hosted Applications were developed fully at private expense. If Customer is an agency, department, or other entity of the United States Government, consistent with FAR section 12.212 and DFAR section 227.7202, any access, use, duplication, reproduction, release, modification, performance, display, disclosure, or transfer of the Hosted Applications or related documentation, including technical data and manuals, or any portion thereof, by the U.S. Government will be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.

    (iv) Publicity. Lucidworks may identify Customer as a Lucidworks customer, and use Customer’s name, trademarks, and logos on its website and in its promotional materials. Customer may request that Lucidworks stop doing so at any time by written notice to Lucidworks. It may take up to 30 days after receipt of the notice for Lucidworks to process the request, and to remove Customer from its website and online promotional materials. Customer will not be referenced in physical promotional materials ordered after Customer’s request is processed by Lucidworks, but Lucidworks will not be required to destroy, end use of, or change any existing materials.