LYNX WORKFLOW SOFTWARE AS A SERVICE AGREEMENT

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IMPORTANT- READ THIS LYNX WORKLOW SOFTWARE AS A SERVICE AGREEMENT (“THIS AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH A SERVICE ORDER THAT INCORPORATES THIS AGREEMENT (THE “SERVICE ORDER”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS 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 TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICES.

A. Agreement Definitions

“You” and “your” refer to the individual or entity that has ordered software as a service from Lynx Workflow (“LW”) or an authorized distributor by executing the service order that accompanies and incorporates this LW software as a service agreement (collectively, the “agreement”). Software as a service consists of system administration, system management, and system monitoring activities that LW performs for LW programs, and includes the right to use the LW programs, support services for such LW programs, as well as any other services provided by LW, as defined in the service order (collectively, the “services”). The term “LW programs” refers to the software products owned or distributed by LW to which LW grants you access as part of the services, including program documentation, and any program updates provided as part of the services. The term “users” shall mean those individuals authorized by you or on your behalf to use the services, as defined in the service order. The term “your data” refers to the data provided by you that resides in your services environment. The term “service order” refers to the service order signed by the parties that accompanies and incorporates this software as a service agreement, including the services, policies and any other document referenced or incorporated into the service order. The term “your reports” refers to reports the LW service produces for your business use, and that belong to you, as distinct from the LW services and programs, which do not.

B. Applicability of Agreement

This software as a service agreement, which may hereafter be modified or amended by LW, is (together with any such modifications and amendments) incorporated into and forms a part of any service order that makes reference to this agreement.

C. Rights Granted

Upon LW’s acceptance of your order and for the duration of the services term defined in the service order, you have the nonexclusive, non-assignable, royalty–free, worldwide limited right to use the services solely for your business operations, including in connection with client engagements in the ordinary course of business, subject to the terms of the agreement. You may allow your users to use the services for this purpose and you are responsible for your users’ compliance with the agreement. The services are provided as described in, and subject to, the services policies referenced in the service order.

You acknowledge that LW has no delivery obligation and will not ship copies of the LW programs to you as part of the services. You agree that you do not acquire under the agreement any license to use the LW programs specified in the service order in excess of the scope and/or duration of the services. Upon the end of the agreement or the services thereunder, your right to access or use the LW programs specified in the service order and the services shall terminate.

D. Ownership and Restrictions

You retain all ownership and intellectual property rights in and to your data. LW or its licensors retain all ownership and intellectual property rights to the services and LW programs. LW retains all ownership and intellectual property rights to anything developed and delivered by LW under the agreement, provided, however, you shall retain (i) the right to use, duplicate, and disclose your reports (as such term is defined in the Service Order) to your clients or for internal business purposes, (ii) the exclusive right to prepare derivative works of your reports and of any portion thereof, and (iii) the right to exploit your reports, for profit or otherwise. For the avoidance of doubt, you shall own any enhancement or customization of such report, but not the technology that produced the report in any way.

Third–party technology that may be appropriate or necessary for use with some LW programs is specified in the program documentation or service order as applicable. Your right to use such third–party technology is governed by the terms of the third–party technology license agreement specified by LW and not under the agreement.

You may not:

  1. Remove or modify any program markings or any notice of LW’s or its licensors’ proprietary rights;
  2. Except to your clients in the ordinary course of business and subject to confidentiality obligations set forth in a written agreement between you and your client, make the programs or materials resulting from the services available in any manner to any third–party for use in the third–party’s business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired);
  3. Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs);
  4. Access or use the services in order to build or support, and/or assist a third–party in building or supporting, products or services competitive to LW;
  5. Disclose results of any services or program benchmark tests without LW’s prior written consent; and
  6. License, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, LW programs, or materials available, to any third–party other than those authorized by you, as expressly permitted under the terms of the agreement.

The rights granted to you under the agreement are also conditioned on the following:

  1. The rights of any user licensed to use the services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license);
  2. Except as expressly provided herein, no part of the services other than your reports and other materials specifically produced by the services for use in the ordinary course of business and subject to the confidentiality obligations set forth in a written agreement between you and your client, may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
  3. You agree to make every reasonable effort to prevent unauthorized third parties from accessing the services.

E. Warranties, Disclaimers and Exclusive Remedies

LW warrants that the services will perform in all material respects in accordance with the services policies referenced in the service order. If the services provided to you for any given month during the services term were not performed as warranted, you must provide written notice to LW as specified in the service order no later than five business days after the last day of that particular month or within such other period stated in the service order.

LW DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT LW WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT LW DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. LW IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

FOR ANY BREACH OF THE ABOVE WARRANTIES, LW WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO LW, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND LW’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.

TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

F. Trial Use of the Services

If specified in the service order, you may order certain services for trial, nonproduction purposes subject to the terms and conditions of the agreement. Services acquired for trial purposes are provided “as is” and LW does not offer any warranties for such services.

G. Indemnification

If a third–party makes a claim against either you or LW (“Recipient” which may refer to you or LW depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or LW (“Provider” which may refer to you or LW depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs, and expenses awarded by the court to the third–party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:

  • notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
  • gives the Provider sole control of the defense and any settlement negotiations; and
  • gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.

If the Provider believes or it is determined that any of the Material may have violated a third–party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects LW’s ability to meet its obligations under the relevant order, then LW may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third–party portal or other external source that is accessible to you within or from the service (e.g., a third–party Web page accessed via a hyperlink). LW will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by LW. LW will not indemnify you for infringement caused by your actions against any third–party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third–party intellectual property rights. LW will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.

H. Support Services

Support services provided under the agreement are specified in the services policies referenced in the service order.

I. Termination of Agreement

Services provided under this software as a service agreement shall be provided for the period defined in the service order unless earlier terminated in accordance with the agreement or the Service Order. The term of the services and any renewal years are collectively defined as the “services term.” At the end of the services term, all rights to access or use the services, including the LW programs listed in the service order, shall end.

If either of us breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable service order under which the breach occurred. If LW ends the service order as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the agreement plus related taxes and expenses. If LW ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The non-breaching party may agree in its sole discretion to extend the 30–day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the agreement, you may not use the services ordered.

In addition, LW may immediately suspend your password, account, and access to or use of the services: (i) if you fail to pay LW as required under the agreement and do not cure within the first ten days of the 30–day cure period, or (ii) if you violate any provision within sections C, D, N, or R of this software as a service agreement. LW may terminate the services hereunder if any of the foregoing is not cured within 30 days after LW’s initial notice thereof. Any suspension by LW of the services under this paragraph shall not excuse you from your obligation to make payment(s) under the agreement.

At your request, and for a period of up to 60 days after the termination of the applicable service order, LW may permit you to access the services solely to the extent necessary for you to retrieve a file of your data then in the services environment. You agree and acknowledge that LW has no obligation to retain your data after 60 days following the termination of the service order.

Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.

J. Fees and Taxes

You agree to pay for all services ordered as set forth in the applicable service order. All fees due under the agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that LW must pay based on the services you ordered, except for taxes based on LW’s income. Fees for services listed in a service order are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.

You agree that you have not relied on the future availability of any services, programs, or updates in entering into the payment obligations in the service order; however, the preceding does not relieve LW of its obligation to deliver services that you have ordered per the terms of the agreement.

K. Nondisclosure

By virtue of the agreement, the parties may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.

A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no breach of this Agreement by the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third–party without restriction on the disclosure; (d) is independently developed by the other party; or (e) subject to the requirements listed below is disclosed pursuant to legal requirement or order.

We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, except as otherwise set forth herein, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. LW will protect the confidentiality of your data residing in the services environment in accordance with the LW security practices specified in the services policies referenced in the service order. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.

L. Entire Agreement

You agree that the agreement (including the information which is incorporated into the agreement by written reference, including reference to information contained in a URL or referenced policy, is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the agreement, including any LW service order, shall supersede the terms in any purchase order or other non-LW document and no terms included in any such purchase order or other non-LW document shall apply to the services ordered.

M. Limitation of Liability

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. EACH PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO LW FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12)–MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST LW SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

N. Export

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the services. You agree that such export control laws govern your use of the services (including technical data) and any services deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs, and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

O. Other

  1. LW is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment–related taxes and insurance.
  2. You shall obtain at your sole expense any rights and consents from third parties necessary for LW and its subcontractors to perform the services under the agreement.
  3. The agreement is governed by the substantive and procedural laws of California, and you and LW agree to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco, San Mateo, or Santa Clara counties in California in any dispute arising out of or relating to the agreement.
  4. If you have a dispute with LW or if you wish to provide a notice under the Indemnification section of this software as a service agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Lynx Workflow, 1890 Bryant Street, Ste. 305, San Francisco, California 94110, USA. LW may give notice applicable to LW’s software as a service customer base by means of a general notice on the LW portal for the services, and notices specific to you by electronic–mail to your email address on record in LW’s account information or by written communication sent by first class mail or pre-paid post to your address on record in LW’s account information.
  5. You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity. If you grant a security interest in any portion of the services, the secured party has no right to use or transfer the services or any deliverables.
  6. Except for actions for nonpayment or breach of LW’s proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.
  7. LW may audit your use of the services. You agree to cooperate with LW’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, LW can end your services and/or the agreement. You agree that LW shall not be responsible for any of your costs incurred in cooperating with the audit.
  8. The Uniform Computer Information Transactions Act does not apply to this software as a service agreement or orders placed under it. You understand that LW’s business partners, including any third–party firms retained by you to provide computer consulting services, are independent of LW and are not LW’s agents. LW is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as an LW subcontractor on an engagement ordered under this software as a service agreement.

P. Force Majeure

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.

Q. Your Data

In performing the services, LW will comply with the LW Privacy/Security Policy, which is available at http://lynxsite.com/privacy/policy.html and incorporated herein by reference. The LW Privacy/Security Policy is subject to change at LW’s discretion; however, LW policy changes will not result in a material reduction in the level of protection provided for your data during the period for which fees for the services have been paid. The services policies referenced in your service order specify our respective responsibilities for maintaining the security of your data in connection with the services.

You agree to provide any notices and obtain any consents related to your use of the services and LW’s provision of the services, including those related to the collection, use, processing, transfer, and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of your data.

R. Restrictions on Use of the Services

You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing, or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam”, or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to LW under the agreement, LW reserves the right to remove or disable access to any material that violates the foregoing restrictions. LW shall have no liability to you in the event that LW takes such action. You agree to defend and indemnify LW against any claim arising out of a violation of your obligations under this section.

S. Services Tools

LW may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the services and to help resolve your LW service requests. The tools will not collect, report, or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing LW’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the agreement.

If LW provides you with access to or use of any tools in connection with the services, your right to use such tools is governed by the license terms that LW specifies for such tools; however, if LW does not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your services environment, subject to the terms of the agreement. Any such tools are provided by LW on an “as is” basis and LW does not provide technical support or offer any warranties for such tools. Your right to use such tools will terminate upon the earlier of LW’s notice, the end of the services term, or the date that the license to use such tools ends under the license terms specified for such tools.

T. Statistical Information

LW may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company’s name. LW retains all intellectual property rights in such information.

U. Third–Party Web Sites, Content, Products, and Services

The services may enable you to add links to Web sites and access to content, products, and services of third parties, including users, advertisers, affiliates, and sponsors of such third parties. LW is not responsible for any third–party Web sites or third–party content provided on or through the services, and you bear all risks associated with the access and use of such Web sites and third–party content, products, and services.