LUMIVERO LLC AND ITS AFFILIATES (COLLECTIVELY, “LUMIVERO” OR ‘WE”) IS WILLING TO PROVIDE CERTAIN SOFTWARE AND SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO A WRITTEN OR ONLINE ORDER SCHEDULE OR SIMILAR DOCUMENT WITH LUMIVERO THAT REFERENCES THESE TERMS AND CONDITIONS OR THAT OTHERWISE PURCHASES SOFTWARE OR SERVICES ON LUMIVERO’S ONLINE WEB PORTAL ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THESE TERMS AND CONDITIONS (“AGREEMENT”). READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SOFTWARE OR SERVICES FROM LUMIVERO. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND LUMIVERO. BY ENTERING INTO A WRITTEN OR ONLINE ORDER SCHEDULE OR SIMILAR DOCUMENT WITH LUMIVERO THAT REFERENCES THIS AGREEMENT, OR BY PURCHASING SOFTWARE OR SERVICES ON LUMIVERO’S ONLINE WEB PORTAL, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A "CORPORATE ENTITY"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM "YOU" OR "CUSTOMER" REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.
1.1 Affiliates means any corporation, partnership, or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by, or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
1.2 Cloud Service means Lumivero’s proprietary web-based software programs described on the applicable Order Schedule.
1.3 Customer Data means all Data of Customer made available by Customer to Lumivero for use in connection with the Services.
1.4 Data means text, images, content, documents, materials, and all other forms of data or communication.
1.5 Documentation means the documentation for the Software or Cloud Service generally supplied by Lumivero to assist its customers in the use of the Software or Cloud Service, including user and system administrator guides and manuals and other written materials, including the software functional specifications.
1.6 DPA means Lumivero’s data protection addendum, a copy of which may be found https://www.lumivero.com/legal-and-compliance/data-protection-addendum and which is hereby incorporated by reference herein and made a part of this Agreement.
1.7 Feedback means any Customer provided feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Services or Software.
1.8 Losses means all claims, actions, proceedings, damages, losses, liabilities, and expenses, including reasonable attorney fees.
1.9 Maintenance Services means Lumivero’s maintenance and technical support services for the Software as set forth in Exhibit C.
1.10 myLumivero Portal means Lumivero’s online portal where customers may purchase certain Software and Services from Lumivero.
1.11 Order Schedule means each Lumivero ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Software or Services ordered by Customer from Lumivero, sets forth the prices for such Services, and contains other applicable terms and conditions. Order Schedules may also be entered into via the myLumivero Portal.
1.12 Lumivero Data means all Data made available by Lumivero to Customer in connection with Customer’s use of the Services.
1.13 Professional Services means those development, set-up, integration, configuration, consulting, and/or training services, if and as specified on an Order Schedule and/or on an SOW to be provided by Lumivero.
1.14 Services means the Cloud Service, Maintenance Services, and any Professional Services provided by Lumivero pursuant to Section 2.1 hereof. Customer may order the Cloud Service, Maintenance Services, and/or Professional Services from Lumivero via an Order Schedule.
1.15 Software means the software products provided by Lumivero to Customer for on-premises use by Customer and its Users and which are listed on an Order Schedule, along with all updates, enhancements, bug fixes, and new releases thereto that Lumivero makes available to Customer hereunder.
1.16 SOW means a Statement of Work referencing this Agreement and signed by both Parties from time to time that sets forth Professional Services to be provided by Lumivero and certain other terms related thereto that are agreed between the Parties. The Parties acknowledge that for small Professional Services engagements, an Order Schedule may serve as the SOW.
1.17 Users mean individuals who are authorized by Customer to use the Services, and, with respect to the Cloud Service, who have been supplied passwords by Customer (or by Lumivero at Customer’s request). Users consist of designated employees, faculty, students, interns, alumni, and independent contractors of Customer.
1.18 Work Product means any work product, deliverables, programs, interfaces, modifications, configurations, reports, analyses, or documentation developed by Lumivero on behalf of Customer and delivered to Customer in the performance of Professional Services.
2.1 Services. Lumivero shall provide Customer with the specific Services and/or Software specified on an Order Schedule or SOW, as the case may be. Customer acknowledges that (i) the Cloud Service is provided in accordance with, and is subject to, the provisions set forth in this Agreement, the applicable Order Schedule, as well as the additional terms and conditions set forth on Exhibit A hereto; (ii) the Software is provided in accordance with, and is subject to, the provisions set forth in this Agreement, the applicable Order Schedule, as well as the additional terms and conditions set forth on Exhibit B hereto; (iii) Maintenance Services are provided in accordance with, and are subject to, the provisions set forth in this Agreement, the applicable Order Schedule, as well as the additional terms and conditions set forth on Exhibit C hereto; and (iv) the Professional Services are provided in accordance with, and are subject to, the provisions set forth in this Agreement and the applicable SOW (or Order Schedule as the case may be), as well as the additional terms and conditions set forth on Exhibit C hereto. Any conflict between the terms and conditions set forth in this Agreement and any Order Schedule or SOW shall be resolved in favor of this Agreement unless such Order Schedule or SOW expressly references the conflicting provision in this Agreement that it is intended to control and states that it is to control.
2.2 Affiliates Not Under Direct Order Schedule. Subject to the terms of the Order Schedule and this Agreement, Customer may make the Software available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate. By way of example, if an Order Schedule limits use of the Software to ten (10) Users, then the use by Customer and its Affiliates, when aggregated together, shall not exceed a total of ten (10) Users. Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates, except where the Affiliate has signed its own Order Schedule with Lumivero pursuant to Section 2.3.
2.3 Affiliates Under Direct Order Schedule. In addition to Section 2.2, Customer or an Affiliate of Customer may enter into an Order Schedule with Lumivero or a Lumivero Affiliate to provide Software or Services to such Customer or a Customer Affiliate under the terms of this Agreement. Each Order Schedule, together with the terms of this Agreement, shall constitute and be construed as a separate agreement between the two parties entering into such Order Schedule. For the avoidance of doubt, upon the execution of an Order Schedule issued hereunder, the entities that are a party to such Order Schedule shall be subject to, and bound by, the terms of this Agreement as if each such entity executed this Agreement as “Lumivero” and “Customer,” as applicable. Lumivero or any Lumivero Affiliate that is not a party to an Order Schedule shall not be jointly and severally liable for the obligations of the Lumivero Affiliate that is a party to such Order Schedule, and Customer or any Customer Affiliate that is not a party to an Order Schedule shall not be jointly or severally liable for the obligations of the Customer Affiliate that is a party to such Order Schedule.
3. FEES; PAYMENT TERMS
3.1 Fees. Customer agrees to pay Lumivero for the Software and Services provided and expenses incurred on the basis and at the rates specified in each Order Schedule or SOW, as the case may be. Unless otherwise set forth on the Order Schedule or SOW, payment shall be due within thirty (30) days after the date of Lumivero’s invoice and shall be made in US Dollars. Customer agrees to pay a late charge of one-and-one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good-faith dispute, and not paid when due. In addition to paying the applicable fees, Customer also shall pay all reasonable travel and out-of-pocket expenses incurred by Lumivero in connection with any Services rendered, but only where Customer pre-approved of such expenses in writing.
3.2 Disputed Charges. If Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good-faith discussions between the Parties, Customer shall pay the amounts due under this Agreement less the disputed amount, and the Parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Customer delivers a written statement to Lumivero on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by Customer, and (ii) all other amounts due from Customer that are not in dispute have been paid as and when required under this Agreement.
3.3 Taxes. Customer shall be solely and exclusively responsible for the payment of required sales, use, VAT, and similar taxes arising from or relating to the Software and Services rendered hereunder, except for taxes related to the net income of Lumivero and any taxes or obligations imposed upon Lumivero under federal, state, and local wage laws.
4. CONFIDENTIALITY AND DATA SECURITY
4.1 Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The Parties expressly agree that the Customer Data is Customer’s Confidential Information and the Software is Lumivero’s Confidential Information. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party, and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights. Customer further agrees that it and its Users shall not publicly post any analysis or reviews (including any comparative analysis or evaluations) of the Software or Services without Lumivero’s prior written approval.
4.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process, or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
4.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
5. LIMITED WARRANTIES
5.1 Services and Software Warranty. The warranties for the Cloud Service, the Software, and Professional Services are set forth in Exhibit A, Exhibit B, and Exhibit D attached hereto, respectively.
5.2 DPA. During the term of this Agreement, Lumivero shall comply with the DPA.
5.3 No Other Warranty. LUMIVERO DOES NOT REPRESENT THAT THE SERVICES OR SOFTWARE WILL BE ERROR-FREE, OR THAT THE SERVICES OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ALL ERRORS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED, OR THAT THE OVERALL SYSTEM THAT MAKES THE CLOUD SERVICE AVAILABLE (INCLUDING, BUT NOT LIMITED TO, THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY LUMIVERO. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY.
6.1 Consequential Damage Waiver. Except for a violation by Customer of any of Lumivero’s intellectual property rights or a Party’s breach of Section 4, neither Party will be liable to the other or any third party for loss of profits, or special, indirect, incidental, consequential, or exemplary damages, including lost profits and costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.
6.2 Limitation of Liability. Except as may arise out of Lumivero’s breach of Section 4, the total cumulative liability of Lumivero to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort, or otherwise, will not exceed the fees paid by Customer to Lumivero during the immediately preceding twelve (12) months under the operative Order Schedule or SOW for the Services or Software giving rise to the claim. The provisions of this Agreement allocate risks between the Parties. The pricing set forth in each Order Schedule and SOW reflects this allocation of risk and the limitation of liability specified herein. The foregoing limitations do not affect a Party’s liability for death or personal injury arising from its negligence, any liability from fraudulent misrepresentation, or any other liability which cannot be excluded or limited under applicable law.
7.1 Term. This Agreement will commence on the Effective Date as set forth above and will continue in effect until otherwise terminated in accordance with Section 7.2 below. The term of each Order Schedule for any Services shall be set forth on the Order Schedule. Upon the expiration of the initial term of any Order Schedule or any renewal term, unless either Party provides the other with written notice of its election not to renew such Order Schedule at least thirty (30) days prior to such renewal date, the Order Schedule will automatically renew, for additional periods equal to the original term of the Order Schedule. Lumivero reserves the right to change the rates, applicable charges and usage policies, and to introduce new charges, for such Order Schedule upon providing Customer written notice thereof (which notice may be provided by e-mail) at least sixty (60) days prior to the then-current renewal date.
7.2 Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Schedule or SOW (i) immediately in the event of a material breach of this Agreement or any such Order Schedule or SOW by the other Party that is not cured within thirty (30) days of written notice thereof from the other Party; or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency, or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Schedule or SOW shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Schedules and SOWs. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Schedules or SOWs then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Schedule and SOW.
7.3 Effect of Termination. Upon any termination or expiration of this Agreement, or any applicable Order Schedule or SOW, Lumivero shall no longer provide the applicable Services to Customer, and Customer shall cease and cause its Users to cease using the Services and the Software. No refund shall be provided unless termination was by Customer due to Lumivero’s uncured breach, in which case Customer shall be entitled to a prorated refund of prepaid, unused fees paid for the balance of the unexpired term of the Order Schedule or SOW. Except as expressly provided herein, termination of this Agreement by either Party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such Party. Upon termination of this Agreement, each Party shall promptly return or destroy all Confidential Information of the other Party in its possession.
8. OWNERSHIP; USE OF CONTENT
8.1 Software. Ownership of the Software, any related Documentation, copies, modifications, and derivatives of the Software or Documentation (in whole or in part), and all related copyright, patent, trade secret, and other proprietary rights, are and will remain the exclusive property of Lumivero and/or its licensors. Lumivero reserves all rights not expressly granted by it to Customer under this Agreement. There are no implied rights.
8.2 Customer Data. Customer retains ownership of all right, title, and interest in and to all Customer Data. During the term of this Agreement, Customer hereby grants to Lumivero a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, display, transmit, and distribute the Customer Data solely as necessary to provide the Cloud Service to Customer. Notwithstanding the foregoing, Customer acknowledges and agrees that Lumivero shall have the right to copy, use, distribute, and display any information, analysis, statistics, and other data generated by the Cloud Service (or derived from Customer’s use of the Cloud Service), including compilation of aggregated statistics about the Cloud Service; provided, however, that Lumivero shall not publicly disclose or distribute any such data unless such data is in an aggregated or anonymized form that would not permit a third party to identify the data as associated with Customer. Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading, and maintaining all Customer Data. As between the Parties, the accuracy of Customer Data shall solely be Customer’s responsibility. Upon termination of the Cloud Service, Lumivero shall make such Customer Data available to Customer in a mutually agreed-upon format.
8.3 Lumivero Data. Lumivero retains ownership of all right, title, and interest in and to all Lumivero Data. During the term of this Agreement, Lumivero grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, display, transmit, and distribute the Lumivero Data solely in connection with Customer’s permitted use of the Cloud Service and Software.
8.4 Customer Obligations. Customer is solely responsible for all Customer Data. Lumivero does not guarantee the accuracy, integrity, or quality of such Customer Data. Neither Customer nor its Users shall use the Cloud Service or Software to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (b) upload or otherwise transmit, display, or distribute any Customer Data that infringes any trademark, trade secret, copyright, or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Cloud Service or networks connected to the Cloud Service; (e) violate any applicable law or regulation or (f) unless otherwise expressly permitted in an Order Schedule, upload or otherwise transmit, display, or distribute any Customer Data containing any protected health information (as defined by the HIPAA Privacy Rule) or medical records.
8.5 Feedback. In the event Customer provides Lumivero with Feedback, Customer hereby grants to Lumivero an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed. Lumivero acknowledges and agrees, however, that Feedback is provided by Customer and its Users on an “AS IS” basis without warranty, indemnity, or liability of any kind.
9.1 Lumivero Indemnification. Subject to Section 9.3 below, Lumivero will indemnify, defend, and hold Customer harmless from and against any and all Losses incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer alleging that the use of the Services, Software, or Work Product as permitted hereunder infringes any intellectual property rights or proprietary rights of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services, Software, or Work Product in violation of this Agreement or applicable law; (b) use of the Services, Software, or Work Product after Lumivero notifies Customer to discontinue use because of an infringement claim; (c) any claim relating to any Customer Data; (d) modifications to the Services, Software, or Work Product made other than by Lumivero (where the claim would not have arisen but for such modification); (e) the combination, operation, or use of the Services, Software, or Work Product with materials which were not provided by Lumivero, to the extent that Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by Lumivero with Customer’s custom requirements or specifications if and to the extent such compliance with Customer’s custom requirements or specifications resulted in the infringement. If the Services, Software, or Work Product are held to infringe, Lumivero will, at its own expense, in its sole discretion use commercially reasonable efforts to either (a) procure a license that will protect Customer against such claim without cost to Customer; (b) replace the Services, Software, or Work Product with non-infringing Services, Software, or Work Product; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Order Schedule or SOW and refund to the Customer any prorated prepaid unused fees paid to Lumivero for the infringing Services, Software, or Work Product as the case may be. The rights and remedies granted Customer under this Section 9.1 state Lumivero’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.
9.2 Customer Indemnification. Subject to Section 9.3 below, Customer shall indemnify, defend, and hold Lumivero harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against Lumivero (i) alleging that the Customer Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 8.4.
9.3 Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit, or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby; and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement, provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).
10. GENERAL PROVISIONS
10.1 Entire Agreement and Controlling Documents. This Agreement, including all Exhibits hereto and all Order Schedules and SOWs, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement or the applicable Order Schedule or SOW and that is duly signed by the authorized representatives of both Parties may amend this Agreement or such Order Schedule or SOW. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by Lumivero. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
10.2 Assignment. This Agreement shall be binding upon and for the benefit of Lumivero, Customer, and their permitted successors and assigns. Either Party may assign this Agreement and all Order Schedules and SOWs as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void.
10.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA, without regard to its conflict-of-law provisions, and the Parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Wilmington, Delaware for the purposes of adjudicating any dispute arising out of this Agreement. The application of the United Nations convention on the Sale of Goods (CISG) shall not apply.
10.4 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
10.5 Relationship of the Parties. Lumivero and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, joint venturers, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties, or representations, or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
10.6 Certification and Audit. At Lumivero’s written request and no more than once every twelve (12) months, Customer shall provide Lumivero with a signed certification (i) verifying that the Software and/or Cloud Service is being used pursuant to the provisions of this Agreement. In addition to the foregoing, Lumivero may, upon written notification to Customer, perform an audit, not more than once per twelve (12) month period, of Customer’s use of the Software and/or Cloud Service and Customer’s compliance with the provisions of this Agreement. Any such audit shall be made at Lumivero’s expense and shall occur during the Customer’s normal business hours. Lumivero shall notify Customer, in writing, ten (10) business days prior to such audit. Such audit shall not unreasonably interfere with Customer’s business operations and Customer agrees to cooperate with Lumivero in any such audit.
10.7 Publicity. Neither Party will use, publicize, or issue any press release which includes the name, trademarks, or other proprietary identifying symbol of the other Party without the prior written consent of the other Party; provided that Lumivero may include Customer’s name and logo on lists of selected customers.
10.8 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, pandemic, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.
10.9 Export; Government Restricted Rights. Customer acknowledges that the export of any Software or Cloud Service is subject to export or import control and Customer agrees that any Software or Cloud Service or the direct or indirect product thereof will not be exported (or re‑exported from a country of installation) directly or indirectly, unless Customer obtains all necessary licenses from the U.S. Department of Commerce or other agency as required by law. The Software, Cloud Service and the Documentation have been developed at private expense and are sold commercially. They are provided under any U.S. government contracts or subcontracts with the most restricted and the most limited rights permitted by law and regulation. Whenever so permitted, the government and any intermediate buyers will obtain only those rights specified in Lumivero’s standard commercial license. Thus, the Software and Cloud Service referenced herein, and the Documentation provided by Lumivero hereunder, which are provided to any agency of the U.S. Government or U.S. Government contractor or subcontractor at any tier shall be subject to the maximum restrictions on use as permitted by FAR 52.227-19 (June 1987) or DFARS 227.7202-3(a) (Jan. 1, 2000) or successor regulations.
10.10 Open-Source Components. Customer acknowledges that the Software may contain or be accompanied by certain third-party embedded open-source software components (“Open-Source Components”). These Open-Source Components, if any, are identified in, and subject to, special license notices, terms, and/or conditions as set forth in the Documentation and/or in an installation or similar file accompanying the Software (“Open-Source Notices”).
10.11 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt; or (iii) upon confirmation that an email sent to the other Party’s designated email address was received. Notices shall be sent to the address of the Party set forth on the applicable Order Schedule or to the designated email address set forth in the signature block below. Either Party may change its address or designated email address by giving written notice of such change to the other Party.
10.12 No Third-Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits, or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
10.13 Counterpart Execution. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument. Signatures to this Agreement transmitted by electronic mail in “portable document format” (“.pdf”), or by any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.
10.14 Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
10.15 Recruitment of Personnel. During the Term and for a period of one (1) year thereafter, neither Lumivero nor Customer will solicit, recruit, hire, employ, or contract with, directly or indirectly, any employee(s) of the other party, and will not hire, employ, or contract with, directly or indirectly, any former employee(s) of the other party for a period of 120 days following termination of such employee’s employment without the other Party’s prior written consent, not to be unreasonably withheld. The preceding sentence does not, however, prohibit either Party from (a) making general solicitations for employment by means of advertisements, public notices, or internal or external websites, job search engines, or other means that are customarily used for such purpose that are not directed at the other party’s employees; or (b) hiring individuals who respond thereto or contact such Party of their own initiative, in each case without encouragement by such Party, or on its behalf.
In the event that Customer purchases Cloud Service, the following additional terms shall apply:
A. Cloud Service.
1. Cloud Service. Subject to the terms and conditions of this Exhibit A and the Agreement, Lumivero will provide Customer with access to the Cloud Service during the term set forth on the applicable Order Schedule. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Cloud Service. Lumivero assumes no responsibility for the reliability or performance of any connections as described in this Section.
2. License Grant. Subject to the terms and conditions of this Exhibit A and the Agreement, and in consideration for the payment of fees set forth in each respective Order Schedule for the Cloud Service, Lumivero hereby grants to Customer, solely during the term of the Order Schedule, a non-exclusive, non-transferable license to allow the number of Users (if applicable) set forth on the applicable Order Schedule to access the Cloud Service solely for Customer’s internal use and solely for the specific service offering (as indicated on the applicable Order Schedule). This license is restricted to use by Customer and its Users and does not include the right to use Cloud Service on behalf of any third party or the right to permit any non-User to access or use the Cloud Service. Customer also agrees to be bound by any further restrictions set forth on the Order Schedule. All rights not expressly granted to Customer are reserved by Lumivero and its licensors. There are no implied rights. Except as expressly set forth in the Agreement or this Exhibit A, all fees are non-refundable.
3. Licensed Volume. Customer acknowledges that access and use of the Cloud Service is licensed for use up to the number of Users or other metric purchased by Customer and set forth on the applicable Order Schedule (the “Volume Limitations”). By way of example, if an Order Schedule specifies a specific number of Users, then the Cloud Service may only be accessed and used for that number of Users. In the event that the Cloud Service is used in excess of the Volume Limitations set forth on the Order Schedule, Customer shall be obligated to pay Lumivero for the number of applicable Users or other metric purchased by Customer, as the case may be, in excess of such Volume Limitations at the rates set forth in the Order Schedule. Customer may also add licenses for additional Users or other metric purchased by Customer by executing a new Order Schedule or addendum thereto.
4. Restrictions. Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Exhibit A and the Agreement. Unauthorized use, resale, or commercial exploitation of the Cloud Service in any way is expressly prohibited. Without Lumivero’s express prior written consent in each instance, Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Cloud Service, or access the Cloud Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Cloud Service. Except as expressly permitted herein, Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license to the Cloud Service to any third party. In addition to Lumivero’s other remedies hereunder, Lumivero reserves the right upon notice to Customer to terminate any User’s right to access the Cloud Service if such User has violated any of the restrictions contained in the Agreement (including this Exhibit A).
5. Ownership. Customer acknowledges and agrees that as between Lumivero and Customer, all right, title, and interest in and to the Cloud Service (excluding Customer Data), and all derivatives thereof (including any and all patents, copyrights, trade-secret rights, trademarks, trade names, and other proprietary rights embodied therein or associated therewith) are and shall remain Lumivero’s or its licensors’, and Lumivero in no way conveys any right or interest in the Cloud Service other than a limited license to use them in accordance herewith.
6. Cloud Service Warranty. Lumivero warrants that during the term of any Order Schedule for the Cloud Service, (i) the Cloud Service will conform, in all material respects, with its Documentation; (ii) it will use commercially reasonable efforts to provide the Cloud Service in accordance with the Service Level Commitment set forth below; and (iii) it will use commercially reasonable efforts to ensure that it does not introduce any virus, Trojan horse, or other malicious code into the Cloud Service environment. Lumivero does not warrant that it will be able to correct all reported defects or that use of the Cloud Service will be uninterrupted or error free. Lumivero makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Lumivero will, at no additional cost to Customer, provide remedial services necessary to enable the Services to conform to the warranty. Customer will provide Lumivero with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. Such warranties shall only apply if the Cloud Service has been utilized by Customer in accordance with the Order Schedule and this Agreement. If Lumivero is unable to remedy the warranty breach within thirty (30) days then Customer may terminate the applicable Order Schedule and will receive a prorated refund of the prepaid, unused Fees paid by Customer for the balance of the unexpired term of the Order Schedule. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranties.
7. Handling of Customer Content Upon Termination. Customer agrees that following termination of Customer’s account and/or use of the Cloud Service, Lumivero may immediately deactivate Customer’s account and that following a reasonable period of not less than thirty (30) days shall be entitled to delete Customer’s account from Lumivero’s “live” site. Customer further agrees that Lumivero shall not be liable to Customer nor to any third party for any termination of Customer access to the Cloud Service or deletion of Customer Data, provided that Lumivero is in compliance with the terms of this Section 7.
8. Users: Passwords, Access and Notification. Customer shall authorize access to and assign unique passwords to the number of Users purchased by Customer on the Order Schedule. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User’s passwords. Customer agrees to immediately notify Lumivero if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords.
9. Suspension. Without limiting any of its other rights or remedies, Lumivero reserves the right to suspend Customer’s or any User’s access to the Cloud Service: (i) for scheduled or emergency maintenance, (ii) in the event Customer or any User is in breach of this Agreement, including failure to pay any amounts due to Lumivero (beyond any applicable notice and cure period), (iii) if Customer’s or its User’s use of the Cloud Service results in (or is reasonably likely to result in) damage to or material degradation of the Cloud Service that could interfere with Lumivero’s ability to provide access to the Cloud Service to other users, or (iv) if Lumivero receives an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body, that expressly or by reasonable implication requires Lumivero to suspend or terminate Customer and/or any authorized User’s access to the Cloud Service.
10. Modifications to Cloud Service. Lumivero may make modifications to the Cloud Service or particular components of the Cloud Service from time to time provided that such modifications do not materially degrade any functionality or features of the Cloud Service and Lumivero will use commercially reasonable efforts to notify Customer of any material modifications.
B. Cloud Service Commitment
Lumivero warrants the Cloud Service will be generally available 99.9% of the time. Monthly uptime will be calculated per calendar month, as follows:
Downtime does not include any of the following:
For any partial calendar month during which Customer subscribes to the Cloud Service, general availability will be calculated based on the entire calendar month, not just the portion for which Customer subscribed. In addition, unavailability of some specific features or functions within the Cloud Service, while others remain available, will not constitute unavailability of the Cloud Service, so long as the unavailable features or functions are not, in the aggregate, material to the Cloud Service as a whole.
Credits: Should Lumivero fail to meet 99.9% general availability of the Cloud Service for a calendar month, Customer shall receive a credit for one full day of its Lumivero Cloud Service subscription for each full hour of general Cloud Service unavailability below 99.9%. Credits are limited to a maximum of ten (10) days per rolling period of one (1) month, and ninety (90) days per rolling period of one (1) year. Any such credit shall be applied to Customer's next invoice (or refunded if there are no forthcoming invoices). The foregoing credits specified above shall be the sole remedy available to Customer for breach by Lumivero of its availability warranty set forth herein.
Reporting and Claims: To file a claim under this Section SLA, Customer must send a written claim to Lumivero with the following details:
Claims may only be made on a calendar month basis and must be submitted within thirty (30) days after the end of the relevant month.
All claims will be verified against Lumivero's system records. Should any periods of downtime submitted by Customer be disputed, Lumivero will provide to Customer a record of Cloud Service availability for the period in question. Lumivero will only provide records of system availability in response to good faith Customer claims.
In the event that Customer licenses any of Lumivero’s Software for installation at a Customer location, the following additional terms shall apply:
1.1 License. Subject to the terms and conditions of this Agreement, upon the execution of an Order Schedule by Lumivero and Customer, Lumivero grants to Customer a non-exclusive, non-transferable term license to install, execute, and use the Software, in object code form only, as well as the accompanying Documentation, solely for Customer’s internal use, and solely in connection with the number of licenses licensed by Customer (as reflected on the Order Schedule). Customer shall only install the Software at the site(s) set forth on the Order Schedule (the “Sites”). The preceding sentence does not, however, restrict the ability of Users to access the Software over the internet from any site outside the Sites. The foregoing license is subject to the other terms set forth in this Agreement, any additional terms set forth in the applicable Order Schedule, and payment of all applicable license fees. Notwithstanding the foregoing, Customer shall only use the Software and Documentation during the specified term set forth on the Order Schedule (the “License Term”). Except as expressly set forth in the Agreement or this Exhibit, all fees are non-refundable.
1.2 Copies. Customer may make a reasonable number of copies of the Software and Documentation solely for Customer’s internal back-up and archival purposes only, provided that all such copies shall bear the original and unmodified copyright, patent, and other intellectual property markings as originally delivered by Lumivero.
1.3 Delivery. Lumivero shall deliver one (1) copy of the ordered Software and Documentation after its execution of the applicable Order Schedule or on such other date as may be specified in the applicable Order Schedule.
1.4 Software Warranty. Lumivero warrants that during the term of any Order Schedule for the Software, the Software will perform in conformity with its Documentation, in all material respects. Such warranty does not apply to Software that has been damaged, mishandled, mistreated, altered or used, maintained or stored contrary to any written instructions provided by Lumivero. If the above warranty is breached, Lumivero will, at its option and at no cost to Customer: (a) provide remedial services necessary to enable the Software to conform to the warranty; or (b) replace any defective Software. If Lumivero is unable to fix or replace the defective Software within thirty (30) days then Customer may terminate the applicable Order Schedule and will receive a pro rata refund of the prepaid, unused Fees paid by Customer for the balance of the unexpired term of the Order Schedule. Customer will notify Lumivero promptly in writing of any breach of warranty. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranties.
1.5 Users. Unless otherwise expressly set forth on an Order Schedule, the Software may only be accessed and used by Customer and its Users; provided, however, that Customer shall take appropriate action, by instruction or agreement, to ensure that the Software is being used by such Users in accordance with the terms and conditions of this Agreement. Customer shall be liable for any breach of this Agreement by any of its Users.
1.6 Restrictions. Customer shall not and shall not allow any third party to (i) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software or any portion thereof, or otherwise derive its source code; (ii) modify, translate, or create derivative works of the Software or Documentation; (iii) sell, lease, license, sublicense, copy (except as permitted in Section 1.2 above), market, or distribute the Software or Documentation; or (iv) use the Software for any timesharing, service bureau, subscription, rental, or similar uses without the express prior written consent of Lumivero in each instance or use the Software on behalf of any third party. Customer shall take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Software.
MAINTENANCE AND TECHNICAL SUPPORT
All enterprise license customers are entitled to Upgrades as part of their order, at no additional charge.
For purposes of the foregoing, “Upgrades” means (i) interim releases of the Software incorporating standard maintenance, improvements, patches, error corrections and enhancements, and (ii) full product releases of the Software, which contain substantial functional enhancements. The content and timing of all Upgrades shall be decided by Lumivero in its sole discretion. Upgrades do not include any products that are marketed and priced separately by Lumivero or that Lumivero does not make available to all of its other customers as an upgrade of the Software at no additional cost.
B. Technical Support
All customers are entitled to technical support as part of their order, at no additional cost. Technical support services are provided only for the standard version of the Software made generally available by Lumivero and do not apply to any custom software deliverables that may be provided by Lumivero to Customer as part of Professional Services.
How to Log a Support Ticket. To obtain support, the Customer may submit a support ticket twenty-four (24) hours a day through the Lumivero support hub: https://lumivero.com/resources/support/.
Support Days and Hours. Support is available Monday through Friday. Lumivero reserves the right to amend support hours and operations at its sole discretion, provided that it offers a Customer thirty (30) days’ notice.
Response and Target Resolution Times. Lumivero will use commercially reasonable efforts to respond to tickets and resolve issues as follows:
|Severity Level||Description||Initial Response|
|Level 1||Critical business impact||2-4 business hours|
|Level 2||Significant business impact||1 business day|
|Level 3||Minimal or no business impact||1-2 business days|
In the event that Customer purchases any of Lumivero’s Professional Services, the following additional terms shall apply:
1. Professional Services. Lumivero will provide Professional Services pursuant to Order Schedules or SOWs executed by the Parties and referencing this Agreement. Any Professional Services or Work Product not expressly described in the applicable SOW are considered outside the scope of the SOW. Lumivero will perform Professional Services remotely unless otherwise mutually agreed in writing.
2. Customer Responsibilities. The pricing in the Order Schedule or SOW assumes the participation of various Customer resources to ensure a smooth implementation such as data provision, system access and administration, testing assistance, user acceptance, and steering committee or stakeholder areas. The project is dependent upon active participation and the prompt response time from all Customer participants. Customer will provide access to necessary systems and resources in order for Lumivero to perform the Professional Services outlined in the Order Schedule or SOW. Customer acknowledges Lumivero’s ability to fulfill its responsibilities under each Order Schedule or SOW is dependent upon Customer fulfilling its responsibilities described in the Order Schedule or SOW. Incorrect assumptions or information provided by Customer, delays on the part of Customer or any other failure of the Customer to meet its responsibilities may result in additional cost, delay in completion of the Professional Services, or inability to complete the Professional Services, and Lumivero shall not be liable for such failure or delay.
3. Warranty. Lumivero warrants that any Professional Services provided hereunder shall be provided in a competent manner in accordance with any specifications set forth in the Order Schedule or SOW (as the case may be), in all material respects. Lumivero further warrants that any Work Product provided pursuant to any Professional Services engagement shall comply, in all material respects, with the specifications set forth in the applicable Order Schedule or SOW. If the Services are not performed as warranted or the Work Product does not so comply, then, upon Customer’s written request, Lumivero shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to Customer. Such warranties and other obligations shall only survive for thirty (30) days following the completion of the Professional Services or the delivery of each applicable portion of the Work Product, as the case may be. Such re-performance shall be Customer’s exclusive remedy and Lumivero’s sole liability for any such non-performance. If, however, after repeated efforts, Lumivero is unable to remedy such defect in any Professional Services or Work Product, then Customer’s sole remedy and Lumivero’s entire liability shall be to refund to Customer any amounts previously paid by Customer for the particular deficient portion of the Professional Services or Work Product
4. Work Product. Except as otherwise expressly set forth in the Order Schedule or SOW, Customer will have a non-exclusive, non-transferable (except as set forth in Section 10.2 of the Agreement) license to use any Work Product developed by Lumivero in the performance of the Professional Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder, solely for Customer’s internal use in connection with Customer’s use of the Software or Cloud Service. Lumivero retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all Work Product compiled or developed by Lumivero in the performance of this Agreement. All such information shall be treated as Confidential Information of Lumivero. Lumivero may utilize any and all methods, computer software, know-how or techniques related to programming and processing of data, developed by it while providing the Professional Services and may incorporate the work product in future releases of any of its Software or Cloud Service.
5. Change Requests. Either Party may request a change to Professional Services, and for such purpose shall submit to the other Party a written notice (“Change Request”) setting forth the requested change and the reason for such request. Within five (5) business days (or such other period of time as agreed by the Parties) after the receipt of such Change Request, the Parties shall discuss the necessity, desirability and/or acceptability of the Change Request. When and if both Parties have agreed in writing upon the changes, and any resulting change in the estimated fees for the project, the Parties shall complete and execute a Change Order.