Welcome to Lexer and thanks for using Our products and Services.
This agreement governs Your acquisition and use of Our Services.
By accepting this Agreement, either by clicking a box indicating Your acceptance or by executing a Work Order that references this Agreement, You agree to the terms of this Agreement. 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 terms ‘You’ or ‘Your’ 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 Services.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
- ‘Affiliate’ means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. ‘Control’, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- ‘Agreement’ means this agreement plus appendices and associated Work Orders;
- ‘Compliance Documents’ means the compliance terms, features, restrictions and notices associated with providing the Lexer Services, as updated from time to time, at https://www.lexer.io/trust-and-compliance/
- ‘Content’ means information obtained by Us from publicly available sources or third party content providers and made available to You through the Services, or pursuant to a Work Order, as more fully described in the Compliance Document.
- ‘External Services’ means websites or services not operated by Us and not subject to this Agreement.
- ‘Fee’ means the fee payable in respect of Services as defined in the relevant Work Order;
- ‘Non-Lexer Application’ means a Web-based, mobile, offline or other software application functionality that is provided by You or a third party and interoperates with a Service
- ‘Security Documents’ means the security features and notices associated with providing the Lexer Services, as updated from time to time, accessible via https://www.lexer.io/trust-and-compliance/
- ‘Services’ means the products and services that are ordered by You under a Work Order and made available online by Us, including associated Lexer offline or mobile components. ‘Services’ exclude Content and Non-Lexer Applications.
- ‘User’ means an individual who is authorised by You to use a Service, for whom You have purchased a subscription, and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilising authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
- ‘We’, ‘Us’ or ‘Our’ means Lexer Pty Ltd, located at 86 Inkerman Street, St Kilda, VIC, 3182, Australia;
- ‘Work Order’ means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto. By entering into a Work Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- ‘You’ or ‘Your’ means the company or other legal entity for which you are accepting this Agreement, and affiliates of that company or entity.
- ‘Your Data’ means electronic data and information submitted by or for You to the Services, excluding Content and Non-Lexer Applications.
2. OUR RESPONSIBILITIES
2.1. Provision of Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Work Orders, (b) provide Our standard support for the Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), or (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
2.2. Protection of Your Data. We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law, or (c) as You expressly permit in writing.
2.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3. USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in the applicable Work Order, Services and access to Content are purchased as subscriptions.
3.2. Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Work Orders. Unless otherwise specified, (a) a quantity in a Work Order refers to Users, and the Service or Content may not be accessed by more than that number of Users, and (b) a User’s password may not be shared with any other individual. Unlimited does not mean infinite, particularly in relation to Users, monitored terms and application program interface (API) calls. If Your use of a particular part of the Service is more than 10x the client average and is contributing to system performance issues for all clients, You agree to work with Us to remedy the issue by reducing the number of Users, terms, API calls etc.
3.3. Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Compliance Documents and Work Orders, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorised access to or use of Services and Content, and notify Us promptly of any such unauthorised access or use, (d) use Services and Content only in accordance with this Agreement, Compliance Documents, Work Orders and applicable laws and government regulations, and (e) comply with terms of service of any Non-Lexer Applications with which You use Services or Content.
3.4. You acknowledge and agree that: (a) the Services are not intended to be used as the sole basis for any business decision, and are based upon data which is in part provided by third parties, the accuracy and/or completeness of which it would not be possible and/or economically viable to guarantee, (b) the Services involve models and techniques based on statistical analysis, probability and predictive behaviour, and We and Our relevant licensors are unable to accept any liability for (i) any inaccuracy, incompleteness or other error in the Services and/or the Content which arises as a result of data provided to Us or Our relevant licensor by You or any third party, and (ii) any failure of the Services to achieve any particular result for You; (c) the Content may contain seeded names and addresses to enable usage monitoring of the Content; (d) Content has not been collected for, and is not intended to be indicative of, any person’s employability, credit worthiness, credit standing, credit capacity, or other characteristics related to such person’s manner or mode of living; and (e) If We inform You that a specified activity or purpose is prohibited, You will ensure that any and all end users immediately cease processing of any such data for the prohibited activity or purpose.
3.5. Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, unless expressly stated otherwise in a Work Order or the Compliance Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Lexer Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Lexer Application to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorised access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement or a Work Order, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in a Work Order or the Compliance Documents, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Compliance Documents, (k) access any Service or Content in order to build a competitive product or service or to benchmark with a Non-Lexer product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, Compliance Documents or Work Orders, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
3.6. External Services. If You subscribe to a Service for sending electronic messages or for the creation and hosting of, or for posting content on, external-facing websites, such use is subject to the external service provisions of the Compliance Documents, and You are solely responsible for complying with applicable law in Your use of any cookies or other tracking technologies.
3.7. Removal of Content and Non-Lexer Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-Lexer Application hosted on a Service by You may violate Our External Services regulations or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Lexer Application or modify the Non-Lexer Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-Lexer Application until the potential violation is resolved.
4. NON-LEXER PROVIDERS
4.1. We or third parties may make available third-party products or services, including, for example, Non-Lexer Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-Lexer provider, product or service is solely between You and the applicable Non-Lexer provider. We do not warrant or support Non- Lexer Applications or other Non-Lexer products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in a Work Order.
4.2. Non-Lexer Applications and Your Data. If You choose to use a Non-Lexer Application with a Service, You grant Us permission to allow the Non-Lexer Application and its provider to access Your Data as required for the interoperation of that Non-Lexer Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-Lexer Application or its provider.
4.3. Integration with Non-Lexer Applications. The Services may contain features designed to interoperate with Non-Lexer Applications. To use such features, You may be required to obtain access to such Non-Lexer Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-Lexer Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Lexer Application ceases to make the Non-Lexer Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
5. FEES AND PAYMENT
5.1. Fees. You will pay all fees specified in Work Orders. Except as otherwise specified herein or in a Work Order,
(i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorise Us to charge such credit card for all Services listed in the Work Order for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Work Order. If the Work Order specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Work Order. Unless otherwise stated in the Work Order, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.3. Suspension of Service. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorised Us to charge to Your credit card), We may, without limiting Our other rights and remedies, suspend Our services to You until such amounts are paid in full. We will not exercise Our rights under this Section if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.4. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, ‘Taxes’). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.4, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.5. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Work Order, this Agreement and the Compliance Documents.
6.3. License to Host Your Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-Lexer Applications and program code created by or for You using a Service or for use by You with the Services, as reasonably necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-Lexer Application or such program code.
7.1. Privacy Laws. Each party must at all times comply with any legislation in force in any jurisdiction (to the extent that either party is subject to the laws of that jurisdiction) affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of data (‘Privacy Laws’). In Australia, the Privacy Act 1988 (Cth) or any successor legislation, as amended from time-to-time, is specifically included Privacy Law.
7.3. Complaints: We must inform You within 5 Business Days:
7.3.1. if a request is received from a person to inspect, access or change Personal Information relating to that person; or
7.3.2. of any privacy complaints received from a person or any events relating to Personal Information which may cause the Privacy Laws to be breached,
and comply with the reasonable directions of You regarding any request or complaint received.
7.4. Privacy Requirements: Without limiting any other Section of this Agreement:
7.4.1. We must maintain comprehensive data security systems, practices and policies and must take all necessary steps to ensure that all Personal Information and Confidential Information held in connection with this Agreement is secure and stored or recorded accurately and is protected (including against corruption, interference and loss and/or unauthorised access, use, modification, processing, disclosure or other misuse) and that only authorised representatives who have agreed to protect the privacy and confidentiality of the information in accordance with this Agreement and who have a legitimate role in fulfilling the terms of this Agreement have access to the information;
7.4.2. We must in respect of all Personal Information held in connection with this Agreement comply with any reasonable requests or directions issued by You from time to time arising directly from, or in connection with, the exercise of the functions of any regulator;
7.4.4. We must not, in respect of any Personal Information held in connection with this Agreement, without the prior written approval of You (including in any Work Order):
188.8.131.52. disclose, transfer or permit the disclosure or transfer outside of Australia of such information; or
184.108.40.206. allow or permit access to any such information by any person outside of Australia at the time of such access.
7.4.5. Where You have approved the disclosure or transfer of Personal Information outside of Australia (including in any Work Order), We must take reasonable steps to ensure that the overseas recipient does not breach any Privacy Laws or otherwise is subject to a Law or binding scheme, that has the effect of protecting the information in a way that, overall, is at least substantially similar to the way in which Privacy Laws protect the information and that there are mechanisms that a person can access to take action to enforce that protection of the Law or binding scheme.
7.4.6. Subject to Section 7.4.5, Personal Information held in connection with this Agreement must be stored in Australia only and unless otherwise agreed in writing, in the event that any Personal Information is required to be stored by Us on a cloud server, the cloud server must be located in a secure Australian data centre.
7.5. Mandatory Data Breach Protection: If We become aware of, or have a reasonable suspicion that there has been any unauthorised access to, or disclosure or loss of, any Personal Information that has been collected from or on behalf of You, directly or indirectly, pursuant to this Agreement We must notify You immediately (“Breach”). In the event of a Breach, We must:
7.5.1. co-operate with You or any appointed authority in relation to any ensuing investigation or enquiry relating to the Breach;
7.5.2. co-operate with You or any appointed authority in relation to the preparation of any determination, statement or notice regarding the Breach, and any notifications to affected individuals; and
7.5.3. co-operate with You or any appointed authority in relation to the provision of information surrounding the circumstances of the Breach, such information which should include: the Personal Information in question; the individuals that are likely to be affected by the Breach; details of the security measures in place and how these may be improved; and all other information relevant for an investigation.
7.6. Notification processes:
7.6.1. In the event of a disagreement between the parties as to whether or not a Notification should be provided, the disagreeing Party shall provide written notice of same to the other Party.
7.6.2. We must follow the reasonable direction of You in relation to any interactions We have with any potentially affected individuals.
7.6.3. You may also elect to provide a Notification at any time, with notice to Us.
7.6.4. The parties agree to work co-operatively and collaboratively during the Notification processes, to come to a resolution regarding whether or not to provide the Notification.
7.7. If the Parties cannot agree as to whether or not Notification should be provided, We or You (as the case may be) may make any Notification it believes is required under the relevant Laws.
8.1. Definition of Confidential Information. ‘Confidential Information’ means all information disclosed by a party (‘Disclosing Party’) to the other party (‘Receiving Party’), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Work Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise as required by law or otherwise authorised by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Subject to section 8.3, neither party will disclose the terms of this Agreement or any Work Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Work Orders and the Security Documents will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with applicable Work Orders, and (d) subject to the “Integration with Non-Lexer Applications” section above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Lexer Application or Your use of the Services in violation of this Agreement, the Compliance Documents or applicable Work Orders.
10.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in violation of the Agreement, the Compliance Documents, Work Order or applicable law (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2. Term of Subscriptions. The term of each subscription shall be as specified in the applicable Work Order. Except as otherwise specified in a Work Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Work Order, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal.
12.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3, We will refund You any prepaid fees covering the remainder of the term of all Work Orders after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Work Orders. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
12.6. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Removal of Content and Non-Lexer Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
13.1. Subject to the provision by Us of reasonable notice, You must allow Us and person(s) authorised by Us, access to Your premises, both during the Term and for a period of six months after the termination or expiry of the Agreement, to inspect the records maintained by You in connection with the Agreement and the data then held by You, for the purpose of enabling Us to verify Your compliance with the requirements of this Agreement. You must provide such co-operation and assistance as We reasonably require in relation to the performance of any inspection under this clause. We will be responsible for all third party costs associated with compliance with this “Audit” section.
14. NOTICES, GOVERNING LAW AND JURISDICTION
14.1. General. Who You should direct notices to under this Agreement, what law will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such dispute or lawsuit, depend on where You are domiciled.
14.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
14.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
15. GENERAL PROVISIONS
15.1. Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
15.2. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our legal department at firstname.lastname@example.org.
15.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Work Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Work Order, (2) this Agreement, and (3) the Compliance Documents.
15.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Work Orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
15.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
15.6. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
15.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
15.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.