LEXIGRAM INC. CUSTOMER AGREEMENT
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
Pilot Period. Services use during the Pilot Period will be restricted to non-productive evaluation use. If so, then, notwithstanding anything else, in connection with such pilot/evaluation use (1) no fees will apply, (2) the Services are provided “AS IS” and no warranty obligations of Company will apply, and (3) Customer may terminate this Agreement and all of its rights hereunder by providing Company written notice.
1. Definitions.
1.1 “Confidential Information” has the meaning set forth in Section 9.1.
1.2 “Documentation” means any user instructions, manuals or other materials and on-line help files regarding the use of the Licensed Software that are generally provided by Lexigram in connection with the Licensed Software.
1.3 “Fees” means the fee due from Licensee to Lexigram described in the Fee Schedule, attached as Exhibit A.
1.4 “High Risk Activities” has the meaning set forth in Section 6.2.
1.5 “Licensed Software” means Lexigram’s software products available at https://api.lexigram.io and provided to Licensee pursuant to this Agreement, including all Updates that may be provided by Lexigram under this Agreement.
1.6 “Licensee Products” has the meaning set forth in Section 8.
1.7 “Maintenance” means provision of Patches and Updates.
1.8 “Open Source Software” has the meaning set forth in Section 2.2.
1.9 “Required Third-Party Technology” has the meaning set forth in Section 3.2.
1.10 “Support” means the following assistance with respect to the Licensed Software: (i) clarification of functions and features of the Licensed Software; (ii) clarification of Documentation pertaining to the Licensed Software; (iii) guidance in the operation of the Licensed Software; and (iv) error verification, analysis and correction to the extent possible.
1.11 “Termination Events” has the meaning set forth in Section 10.3.
1.12 “Update” means a release or revised version of the Licensed Software containing functional enhancements, error corrections or fixes that is made available free of charge by Lexigram during the term of this Agreement to Licensee. The content and timing of all Updates shall be determined by Lexigram in its sole and unfettered discretion.
1.13 “Version” means a given release of a Licensed Software, as denoted by the version number for such Licensed Software.
2. Grant of License.
2.1 Grant. Subject to the terms and conditions of this Agreement, Lexigram hereby grants to Licensee a nonexclusive and nontransferable license for the duration of this Agreement to: (i) install and use the Licensed Software internally for its needs in accordance with all applicable Documentation; and (ii) use the Documentation internally in furtherance of exercising the foregoing license. Licensee acknowledges that Lexigram will retain title to the Licensed Software and Documentation. Lexigram hereby reserves all rights to the Licensed Software, Documentation, or any copyrights, patents, or trademarks, embodied or used in connection therewith, except for the rights expressly granted herein.
2.2 Delivery. Lexigram shall electronically deliver or make available to Licensee, no later than five (5) days after the Effective Date, one machine-readable copy of the Licensed Software along with one (1) copy of the appropriate Documentation. Licensee acknowledges that no copy of the source code of the Licensed Software will be provided to Licensee.
2.3 Copies. Licensee may make a reasonable number of machine-readable copies of the Licensed Software for backup or archival purposes. Licensee shall not copy the Licensed Software, except as permitted by this Agreement. Licensee shall maintain accurate and up to date records of the number and location of all copies of the Licensed Software and, at Lexigram’s request, inform Lexigram in writing of such location. All copies of the Licensed Software will be subject to all terms and conditions of this Agreement. Whenever Licensee is permitted to copy or reproduce all or any part of the Licensed Software, Licensee shall reproduce and not efface any and all titles, trademark symbols, copyright symbols and legends, and other proprietary markings on the Licensed Software
2.4 Lexigram will provide to Licensee access to the Licensed Software via an HTTP API accessible with a Licensee-specific API Key token. API documentation is available at http://docs.lexigram.io. API is available at https://api.lexigram.io.
3. Restrictions and Clarifications.
3.1 License Restrictions. Licensee shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (i) sell, lease, license or sublicense the Licensed Software or the Documentation; (ii) decompile, disassemble or reverse engineer the Licensed Software, in whole or in part; (iii) allow access to the Licensed Software by any person other than Licensee’s employees; (iv) provide, disclose, divulge or make available to or permit use of the Licensed Software by any third party without Lexigram’s prior written consent; (v) use the Licensed Software to provide pass- through processing services to third parties without substantial integration or improvement, or otherwise use the Licensed Software on a ‘service bureau’ basis; or (vi) remove any proprietary notices or labels on or in any of the Licensed Software.
3.2 Required Technology. Licensee understands and acknowledges that certain third-party software and hardware (“Required Third-Party Technology”) may be required for the exercise of the licenses granted to Licensee hereunder. Licensee agrees that Lexigram is not responsible for supplying, maintaining, supporting or configuring such Required Third-Party Technology, and that it is Licensee’s sole responsibility to ensure that all Required Third-Party Technology is properly installed, configured and maintained.
4. License Fee.
4.1 Payment of Fees. In consideration of the license granted pursuant to Section 2.1, Licensee shall pay Lexigram the Fees every 30 days starting on the date of the first payment unless otherwise arranged with Lexigram.
4.2 Renewal Fees. Upon renewal of this Agreement pursuant to Section 10.1, Licensee shall pay Lexigram a renewal fee. Lexigram reserves the right to set the renewal fee at the greater of (i) the Fees set in the Lexigram Pricing Page and (ii) the then-current fees that Lexigram is charging other licensees for the Licensed Software, so long as Lexigram provides at least forty-five (45) day notice prior to the expiration of the Agreement of the amount of the renewal fee owed to Lexigram by Licensee upon renewal. If Lexigram fails to give appropriate notice under this Section 4.2, the renewal fee will be the Fees set in the Lexigram Pricing Page at the time this Agreement was made.
4.3 Taxes. All charges and fees provided for in this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government. Licensee shall pay or reimburse Lexigram for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than income taxes on the net income of Lexigram).
5. Support.
5.1 Service. Provision of Support is contingent upon Licensee’s account being current. Licensee can request support by emailing support@lexigram.io. Lexigram shall use all commercially reasonable efforts to attempt to respond and resolve any problems, but that failure resolve issues immediately shall not constitute a failure to perform a material provision of this Agreement.
5.2 Exclusions. Support will not include services requested as a result of, or with respect to, the following:
(a) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure of electric power, air conditioning or humidity control; failure of media not furnished by Lexigram; operation of the Licensed Software with other media not meeting or not maintained in accordance with the manufacturer’s specifications; or causes other than ordinary use;
(b) improper installation by Licensee or use of the Licensed Software that deviates from any operating procedures established by Lexigram in the applicable Documentation;
(c) modification, alteration or addition or attempted modification, alteration or addition of the Licensed Software undertaken by persons other than Lexigram or Lexigram’s authorized representatives; or
(d) software or technology of any party other than Lexigram.
5.3 Responsibilities of Licensee. Lexigram’s obligations to provide Support are subject to Licensee’s compliance with the terms of this Section 5.3.
(a) Licensee shall designate Support contacts to be the primary interface with Lexigram. The Support contacts shall initiate all requests for Support. The contacts must be trained, qualified and authorized by the Licensee to communicate all necessary information, perform diagnostic testing under the direction of the Lexigram service representative and be present at the location during the performance of any Support if required. Changes to registered contacts may be made upon written notice to Lexigram.
5.4 Cessation of Maintenance and Support. At any time after Lexigram releases a Major Release of the Licensed Software, it may, upon notice to the Licensee, discontinue or modify the terms of Maintenance and Support for any prior Versions, provided that the most recent previous Version will continue to be supported until the expiration of the then-current term of this Agreement.
6. Disclaimer and Limitation of Liability.
6.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, LEXIGRAM MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE LICENSED SOFTWARE OR THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO LICENSEE UNDER THIS AGREEMENT, INCLUDING MAINTENANCE AND SUPPORT. WITHOUT LIMITING THE FOREGOING, LEXIGRAM HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE WITH RESPECT TO THE LICENSED SOFTWARE, DOCUMENTATION AND OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OR EXPLOITATION OF ANY OF THE FOREGOING.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE ACKNOWLEDGES THAT THE LICENSED SOFTWARE IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL- SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, LIFE-SUPPORT MACHINES, OR ANY OTHER CLINICAL APPLICATIONS OR CLINICAL SETTINGS IN WHICH THE FAILURE OF THE LICENSED SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE OR ENVIRONMENTAL DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). LEXIGRAM EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED GUARANTEE OF FITNESS FOR SUCH HIGH RISK ACTIVITIES.
6.2 Limitation of Liability. IN NO EVENT WILL LEXIGRAM BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE LICENSED SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE, INCLUDING NEGLIGENCE, EVEN IF LEXIGRAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LEXIGRAM’S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY LICENSEE TO LEXIGRAM UNDER THIS AGREEMENT. The provisions of this Section 7 allocate risks under this Agreement between Licensee and Lexigram, and Licensee acknowledges that Lexigram’s pricing of the Licensed Software reflects this allocation of risks and limitation of liability.
7. Indemnification for Infringement.
7.1 Indemnity. Lexigram shall, at its expense, defend or settle any claim, action or allegation brought against Licensee that the Licensed Software infringes any United States copyright or trade secret of any third party and shall pay any unappealable final judgments awarded or settlements entered into with Lexigram’s consent; provided that Licensee gives prompt written notice to Lexigram of any such claim, action or allegation of infringement and gives Lexigram the authority to proceed as contemplated herein. Lexigram will have sole control of and the exclusive right to defend, at its own expense, any such claim, action or allegation and make settlements thereof at its own discretion, and Licensee may not settle or compromise such claim, action or allegation, except with prior written consent of Lexigram. Licensee shall give such assistance and information as Lexigram may reasonably require to settle or oppose such claims.
7.2 Options. In the event any such infringement, claim, action or allegation is brought or threatened, Lexigram may, at its sole option and expense:
(a) procure for Licensee the right to continue use of the Licensed Software or infringing part thereof; or
(b) modify or amend the Licensed Software or infringing part thereof, or replace the Licensed Software or infringing part thereof with other software having substantially similar capabilities; or
(c) terminate this Agreement and repay to Licensee a portion, if any, of the License Fee equal to the amount paid by Licensee less 1/12th thereof for each month or portion thereof that this Agreement has been in effect. Lexigram and Licensee will then be released from any further obligation to the other under this Agreement, except for the obligations of indemnification provided for above and such other obligations that survive termination.
7.3 Exclusions. The foregoing obligations will not apply to the extent the alleged infringement arises as a result of: (i) modifications to the Licensed Software made by any party other than Lexigram or Lexigram’s authorized representative; (ii) combination of the Licensed Software with any other product or technology; or (iii) use of the Licensed Software other than as expressly set forth in the Documentation, or otherwise in contravention with any instructions provided by Lexigram.
7.4 Limitation. This Section 7 states the entire liability of Lexigram with respect to infringement of any intellectual property rights of the Licensed Software.
8. Licensee Indemnity. Licensee agrees to defend, indemnify and hold harmless Lexigram and its members, officers, employees, contractors and agents from and against any and all judgments, settlements, damages, liabilities, losses, costs and expenses (including reasonable attorney fees and costs of defense) arising out of or relating to Licensee’s use of the Licensed Software (other than a claim for which Lexigram is obligated under Section 7).
9. Confidential Information.
9.1 Definition. "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which is designated as "Confidential," "Proprietary" or some similar designation. Information communicated orally will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. Confidential Information of Lexigram will include without limitation the Documentation and Licensed Software.
9.2 Non-Use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees, except to those employees of the receiving party with a need to know. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.
9.3 Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information, but in any event, with no less than reasonable care, and shall ensure that its employees and contractors who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
9.4 Return of Materials. Upon written request, each party shall deliver to the other party all of such other party’s Confidential Information that such party may have in its possession or control.
10. Term and Termination.
10.1 Term and Renewal. This Agreement shall have a term of one (1) year from the Effective Date.
10.2 Termination by Licensee. This Agreement may be terminated by Licensee upon thirty (30) days’ prior written notice to Lexigram, with or without cause, provided that no such termination will entitle Licensee to a refund or credit of any portion Fees paid under this Agreement.
10.3 Termination Events. Lexigram may, by written notice to Licensee, terminate this Agreement if any of the following events (“Termination Events”) occur:
(a) Licensee fails to pay any amount due Lexigram within ten (10) days after Lexigram gives Licensee written notice of such nonpayment; or
(b) Licensee is in material breach of any nonmonetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Lexigram gives Licensee written notice of such breach; or
(c) Licensee (i) terminates or suspends its business, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes; or
(d) Lexigram elects to refund Licensee’s fees in accordance with Section 7.2(c).
10.4 Effect of Termination Event. If any Termination Event occurs, termination will become effective immediately or on the date set forth in the written notice of termination.
10.5 Survival. Sections 1, 2.2, 3–4 and 6–12 will survive and remain in full effect after termination of this Agreement.
11. Miscellaneous.
11.1 Nonassignment/Binding Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred or delegated by Licensee, in whole or in part, whether voluntarily or by operation of law, including by way of or in connection with a sale of assets, merger or consolidation, without the prior written consent of Lexigram, which consent will not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
11.2 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) sent by first class registered mail, or air mail, as appropriate, or (iii) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth below. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
11.3 Limitation on Claims. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one (1) year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
11.4 No Warranties. No employee, agent, representative or affiliate of Lexigram has authority to bind Lexigram to any oral representations or warranty concerning the Licensed Software. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
11.5 Force Majeure. Other than obligations to pay money, neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.
11.6 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
11.7 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
11.8 Integration. This Agreement (including the Exhibits and any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties.
11.9 Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Licensee may use in connection with the acquisition or licensing of the Licensed Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Lexigram to object to such terms, provisions or conditions.
11.10 Publicity. Licensee acknowledges that Lexigram may desire to use its name in websites, marketing collateral, press releases, product brochures and financial reports indicating that Licensee is a customer of Lexigram, and Licensee agrees that Lexigram may reasonably use its name in such a manner. Lexigram acknowledges that Licensee may desire to use its name in websites, marketing collateral, press releases, product brochures and financial reports indicating that Licensee is a customer of Lexigram, and Lexigram agrees that Licensee may reasonably use its name in such a manner.
11.11 Government Restricted Rights. If any Licensed Software or Documentation is acquired by or on behalf of a unit or agency of the United States government, the government agrees that such Licensed Software or Documentation is “commercial computer software” or “commercial computer software documentation” and that the government’s rights with respect to such Licensed Software or Documentation are limited by the terms of this License Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.
11.12 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
11.13 Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in the Northern District of California for resolution of any disputes arising out of this Agreement.