SOFTWARE AND SERVICES AGREEMENT
This Software and Services Agreement together with all exhibits and statements of work incorporated by reference herein (“Agreement”) is entered into as of _______, 2022, (the “Effective Date”) between ChainBrain, Inc. (dba Lyric), a Delaware corporation, with its principal place of business at 1138 Rockefeller Drive, Sunnyvale, CA 94087 (“Lyric”) and _______________________________, an ___________________ corporation with its principal place of business at _______________________________________________________ (“Customer”).
Whereas, Lyric develops and delivers a Software-as-a-Service (SaaS) based supply chain management software, and associated applications and web-based tools (“Software”) and print materials, and related training, support, general maintenance and hosting services (“Services”) as described in a statement of work for Customer and its End-Users (as defined in Section 1.5 below); and
Whereas, Lyric desires to license one or more Software and/or provide certain Services to Customer in accordance with the terms and conditions of this Agreement.
Now therefore, the parties agree as follows:
Purchase from Reseller: If Customer purchases the Software from an authorized reseller of Lyric (“Reseller”), Customer’s use of the Software will be governed by this Agreement, subject to Section 10.12 (Reseller Orders) below.
SECTION 1 – DEFINITIONS
1.1 “Documentation” means any documents or materials that Lyric provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Software, including any aspect of the configuration, operation, use, support or maintenance thereof.
1.2 “Eligible Participant” means Customer or any employee, independent contractor, agent or representative that Customer elects to provide access to the Software.
1.3 “End-User” means an Eligible Participant who accesses the Software.
1.4 “Intellectual Property Rights” means the intangible legal rights or interests evidenced by or embodied in (a) any design, technique, technology, invention, discovery, or improvement, regardless of patentability, but including patents, patent applications, trade secrets, trademarks and know-how; (b) any work of authorship, regardless of copyright ability, but including copyrights and any moral rights recognized by law; and (c) any other similar rights, including proprietary, database, or industrial rights, in each case on a worldwide basis.
1.5 “Lyric Materials” means any and all information, data, documents, materials, works modifications, updates, enhancements and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Lyric, or any subcontractor in connection with the Services, Software or otherwise comprise or relate to the Services, Lyric Technology or Software. Lyric Materials also include outputs, improvements, insights, developments, methods, inferences, analysis, processes, models, techniques, and inventions (“Outputs”) derived from inputs or data entered into the Lyric Technology, including all Outputs developed via Machine Learning. Lyric Materials does not include Customer Data.
1.6 “Lyric Technology” means the information technology infrastructure used by or on behalf of Lyric in provision of the Software or performing the Services, including without limitation software tools, hardware designs, algorithms, software, architecture, class libraries, objects and Documentation, network designs, know-how, trade secrets and any related Intellectual Property Rights (whether owned by Lyric or licensed to Lyric from a third party) and derivatives, improvements, enhancements or extensions during or after the Agreement by or for Lyric whether or not in connection with the Software or Services provided to Customer but excluding any Confidential Information of Customer.
1.7 “Machine Learning” means the capability of a computer or computer program to learn and improve from experience without being explicitly programmed.
SECTION 2 – GRANT OF RIGHT; SERVICES
2.1 License Grant. During the Term and subject to the terms of this Agreement, Lyric hereby grants to Customer, and Customer’s End-Users, a limited, non-exclusive, non-transferable, revocable license, without the right to sublicense, to access and use the Software solely for Customer’s internal business purposes for the term and in the quantity set forth on the Statement of Work. Additionally, during the term of this Agreement, Lyric grants to Customer, and Customer’s Eligible Participants and End-Users, a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use, for Customer’s internal use only, any models or algorithms created by Customer during the term using Lyric’s Technology or Materials.
2.2 Performance of Services. As specified in a Statement of Work, Lyric shall host, manage, operate and maintain the Lyric Technology and Lyric Materials, in order to provide remote electronic access and use by Customer’s End-Users. Training and consulting services, if any, will be set forth on the applicable Statement of Work.
2.3 Software License Restrictions. Customer shall use the Software solely for Customer’s own internal business operations and not offer the Software for resale or other consideration to any third party. Customer shall not directly or indirectly: (a) use the Software or any Lyric Property or Confidential Information to create any Software, software, product or system; (b) provide the Software or any Lyric Property, in whole or in part, to any third party, including as a stand-alone product, Software, application, file, report or database; (c) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Software (except and only to the extent these restrictions are expressly prohibited by applicable statutory law); (d) encumber, sublicense, transfer, distribute, sell, rent, lease, loan, time- share or use the Software in any Software bureau arrangement or otherwise for the benefit of any third party; (e) copy, edit, alter, adapt, combine, create derivative works of or otherwise modify the Software or any Lyric Property; (f) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information it obtains or learns pursuant to this Agreement in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; (g) use the Software or any Lyric Property in any manner that does not comply with all applicable laws, rules and regulations; (h) use the Software or any Lyric Property for any malicious or deceptive purposes; (i) use the Software in any manner that adversely impacts the stability of Lyric’s servers or adversely impacts the behavior of other applications using the Software or interferes or attempts to interfere with the proper working of the Software or any activities conducted on the Software; (j) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Software other than by using an authorized API, or permit third parties to obtain the Software from the Customer website through unauthorized web crawling, data mining, spiders, bot technology or screen scraping; or (k) bypass any security or privacy settings or measures Lyric may use to prevent or restrict access to the Software (or other accounts, computer systems or networks connected to the Software) or any Lyric Property. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software. Customer agrees to notify Lyric of any actual or suspected unauthorized use or access of the Software and provide reasonable assistance to Lyric in the investigation and prosecution of any such unauthorized use or disclosure.
2.4 No Implied License. Except for the limited license expressly granted herein, no other license is granted, no other use is permitted and Lyric (and its licensors) shall retain all right, title, and interest in and to the Software, the Lyric Property and Lyric’s logos. As between Lyric and Customer, the Software, the Lyric Property and the Lyric’s brand features, and all intellectual property rights contained in any of the foregoing, are and shall at all times remain the sole and exclusive property of Lyric and are protected by applicable intellectual property laws and
SECTION 3 –OBLIGATIONS OF LYRIC AND CUSTOMER
3.1 Statements of Work. Lyric and Customer will execute one or more statements of work describing the Software and/or Services to be provided by Lyric (“Statement of Work”).
3.2 Access. Subject to the terms of this Agreement, Lyric will grant access to Customer and Customer’s Eligible Participants to use the applicable Software(s) (“Access Credentials”). Only Customer and End-Users may use Company’s Access Credentials, unless otherwise set forth on a Statement of Work.
3.3 Compliance with Laws. Customer will at all times comply with all Applicable Laws in performing its obligations hereunder, including its use of the Software.
SECTION–4 – DISCLAIMERS AND LIMITATIONS OF LIABILITY
4.1 WARRANTIES AND DISCLAIMERS
A. Service. Lyric represents and warrants to Customer that the Software will operate materially in accordance with the Documentation and that the Services will be performed in a professional and workman-like manner. Any warranty claim under this Section must be made in writing within thirty (30) days after performance of the portion of the Software or Service giving rise to the claim. Lyric’s sole liability and Customer’s exclusive right and remedy for a breach of such warranty is for Lyric to correct or re-perform the nonconforming Service or Software.
B. Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED FOR IN THIS SECTION , TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY DISCLAIMS (FOR ITSELF, ITS AFFILIATES AND THEIR SUPPLIERS) ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, LYRIC MAKES NO WARRANTY THAT THE SERVICE OR ANY LYRIC DATA WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE. LYRIC MAKES NO REPRESENTATIONS AND DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO THE PERFORMANCE OF CUSTOMER’S PRODUCTS, SERVICES AND ANY OTHER COMMERCIAL OFFERINGS OF CUSTOMER INTO WHICH LYRIC DATA MAY HAVE BEEN INCORPORATED.
C. Customer Warranty. Customer represents and warrants to Lyric that, with respect to any code, modules, routines, or algorithms (“Customer Code”) or Customer Data deployed or shared by Customer with Lyric or within Lyric’s Technology: 1) Customer is the sole owner of the Customer Code or Data or that is has obtained and will maintain adequate rights, licenses and authorizations thereto as required for Lyric’s use and performance hereunder, ; 2) that the Customer Code or Data does not infringe, contributorily infringe or misappropriate any intellectual property or proprietary right of any third party; 3) that the Customer Code or Data shall be free of defects or any harmful or malicious code, viruses, or routines.
4.2 Exclusion of Consequential Damages. EXCEPT FOR VIOLATIONS OF LYRIC’S INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER OR ITS END USERS OR CUSTOMER’S BREACH OF ITS WARRANTY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR ANY END-USER, FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS ASSOCIATED IN ANY MANNER WITH LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
4.3 Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS OR VIOLATIONS OF LYRIC’S INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER OR ITS END USERS, THE MAXIMUM LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACTS, TORT, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES PAID BY CUSTOMER TO LYRIC UNDER THE SPECIFIC STATEMENT OF WORK THE CLAIM ARISES FROM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST ACT THAT GAVE RISE TO LIABLITY. THE FOREGOING LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
4.4 Time to File Legal Proceeding. Both parties agree that any legal action or proceeding relating to or arising out of this Agreement must be brought by that party within one year of the date the cause of action first arose or the party became aware of the claim or it shall be time-barred, excluding a claim for indemnification.
SECTION 5 – FEES AND OTHER CHARGES
5.1 Fees. Lyric shall invoice Customer for Software licensed hereunder, pass through expenses, and for provision of the Services as described in a Statement of Work.
5.2 Taxes. Customer shall be responsible for all taxes related to the Software and this Agreement, exclusive of taxes on Lyric’s gross revenues, net income, or its status as an employer. Customer will pay Lyric the fees stated on the Statement of Work plus all applicable sales, use, value added, duties or other excise tax. Customer may provide Lyric with a valid certificate of exemption from the requirement of paying sales, use or other purchase related taxes, if applicable.
SECTION–6 – INTELLECTUAL PROPERTY RIGHTS/CONFIDENTIALITY
6.1 Feedback. As between the Parties, Lyric alone will retain all Intellectual Property Rights relating to any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer, End-Users, or any third party relating to the Software and/Services, which are hereby assigned to Lyric.
6.2 Collection and Use of Data. Notwithstanding anything herein to the contrary, Lyric shall have the right to collect and use for Lyric’s business purposes (including, but not limited to, regression and other testing, the compilation and analysis of usage and performance metrics, to enhance and improve Lyric’s customer offerings, and for other development, diagnostic and corrective purposes in connection with the Services and other Lyric offerings: (a) any data and information that is provided by Customer or an End-User to Lyric or to or through the Software (“Customer Data”); (b) any materials provided by Customer that are necessary to perform the Services or provide the Software; and (c) any reports, data queries, responses to data queries, or other output generated by the Software using or based on such data and information stored in the Lyric Technology (collectively referred to as “End-User Data”). To the extent Customer obtains any interest in any End-User Data, Customer hereby grants to Lyric a perpetual, non-exclusive, worldwide, royalty-free, irrevocable right and license to use End-User Data for Lyric’s business purpose, so long as such End-User Data has been de-identified..
6.3 Ownership/Reservation of Rights. Except for the express rights granted to Customer in this Agreement, Lyric alone will retain all Intellectual Property Rights relating to the Services, Software, Software specifications, Documentation, Lyric Technology and Lyric Materials (collectively referred to as “Lyric Intellectual Property”). For the avoidance of doubt, Lyric Intellectual Property includes information, data and other content that is derived by or through the Software or Services from processing End-User Data. The Lyric Intellectual Property made available to Customer under this Agreement is licensed, not sold. This Agreement does not convey to Customer or to End-Users any rights of ownership in or related to the Lyric Intellectual Property. Customer shall own any custom code, applications, or sequences created by Customer (“Custom Customer Code”) within the Software or Services, so long as such Custom Customer Code was prepared exclusively and independently by Customer for Customer’s exclusive use. Notwithstanding anything in this Agreement to the contrary, Lyric retains all right, title, and interest in the Lyric Intellectual Property, even if such Lyric Intellectual Property is combined, in whole or part, with Custom Customer Code created by Customer. To the extent Customer desires to authorize additional use of any Custom Customer Code, Customer and Lyric shall enter into an addendum defining the scope of such use.
6.4 Restrictions. Customer shall not, and shall not permit its End-Users or third parties to: a) copy, share, distribute, modify, reproduce, create derivative works of the Lyric Intellectual Property; or b) disassemble, reverse assemble, decompile, reverse compile, translate, reverse engineer, or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithms of the Lyric Intellectual Property. Customer shall not, and shall not permit its End-Users or third party to: a) share, rent, loan, lease, sublicense, or lend the Lyric Intellectual Property; or b) make the Lyric Intellectual Property available in any manner to any third party (unless such access is expressly permitted in writing by Lyric). Customer shall not remove, modify or obscure any identification or proprietary or restrictive rights markings or notices from the Software or any component thereof.
6.5 Confidential Information.
(a) During the course of performance of this Agreement, either party (“Disclosing Party”) may disclose certain Confidential Information to the other party (“Receiving Party”) solely to permit the Receiving Party to perform its obligations under this Agreement. The Receiving Party shall not use, disclose, or otherwise exploit any Confidential Information for any purpose not specifically authorized by the Disclosing Party in this Agreement. For purposes of this Agreement, “Confidential Information” includes any data or information, oral or written, treated as confidential (whether such information is or is not marked or identified as confidential or proprietary) that relates to the Disclosing Party’s past, present, or future research, development or business activities, including any Software(s) (whether announced or unannounced) and service(s), and including any information relating to software (including information in object and source code form), software design and architecture, testing procedures, design and functional specifications, services, developments, inventions (whether or not patentable), trade secrets, ideas, know-how, techniques, processes, formulas, plans, algorithms, schematics, research, development, problem reports, performance information, marketing and financial plans, information and data, Customer and supplier lists, forecasts, and projections. Confidential Information shall also include the terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information which the recipient can demonstrate through documentary evidence that (i) is publicly available at the time disclosed; (ii) is or becomes publicly available through no fault of the party receiving such information; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations; or (iv) is independently developed by the recipient. Confidential Information does not include End-User data that has been de-identified or anonymized such that it no longer can reasonably identify or be linked to End-Users.
(b) Each party agrees that a breach of this Section 6.5 will result in the substantial likelihood of irreparable harm and injury to the other party for which monetary damages alone would be an inadequate remedy, and for which damages would be difficult to accurately measure. Accordingly, each party agrees that the other party shall have the right, in addition to any other remedies available to it, to seek injunctive relief as well as other allowable equitable relief for any breach or potential breach of this Section 6. Upon the expiration or termination of this Agreement, and subject to Section 7, each party shall return (or if requested by the Disclosing Party, destroy) all Confidential Information, documents, manuals, electronic data and other materials provided by the Disclosing Party to the Receiving Party.
SECTION–7 – TERM AND TERMINATION
7.1 Term. The Agreement shall commence on the Effective Date and continue until the earlier of (i) completion of the latest term specified in a Statement of Work; or (ii) termination in accordance with the provisions of this Section 7 (“Term”).
7.2 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party commits a material breach of its obligations under this Agreement and fails to cure the same within thirty (30) days after notice from the non-breaching party describing the breach and demanding a cure. There will be no cure period for breaches of confidentiality obligations or restrictions on use. Either party may terminate this Agreement immediately upon written notice to the other party if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
7.3 Effect of Termination.
(a) Notwithstanding any termination of this Agreement, Section 2 (Grant of Right; Services), Section 4 (Disclaimers and Limitations of Liability), Section 6 (Intellectual Property Rights/Confidentiality), 7 (Term and Termination), 9 (Indemnification) and 10 (General Provisions) shall survive and continue to have effect. In the event of any expiration or termination of this Agreement, within sixty (60) days after such termination, Customer shall: (i) discontinue use of all the Lyric Materials; (ii) erase or destroy any Lyric Materials contained in the computer memory or data storage apparatus under the control of the Customer, provided that it shall not be obligated to destroy archival copies not readily accessible and kept solely for the purpose of back-up materials; and (iii) destroy all non-electronic Lyric Materials, including copies thereof.
SECTION–8 – SECURITY
8.1 Lyric will provide security for the Software and End-User Data consistent with industry standards and protect against both unauthorized access to Lyric Technology, and unauthorized communications between Lyric Technology and Customer’s or an End-User’s browser. Notwithstanding the foregoing, Lyric shall not be liable to Customer or any individual for any loss or damage arising from any unauthorized use of Customer’s or any End-User’s Access Credentials, including any use via a device of any End-User or Customer. For the avoidance of doubt, Customer and each End-User, as applicable, is solely responsible for its respective device(s). Customer shall promptly notify Lyric of possible misuse of Customer’s or End-Users’ accounts or passwords or any security incident related to the Software.
SECTION–9 – INDEMNIFICATION
a) Customer shall indemnify, defend and hold harmless Lyric from and against all costs, expenses, claims, liabilities, demands, causes of action, losses or damages and all costs and expenses (including reasonable attorneys’ fees) arising from: (1) any use of the Software by Customer in breach of this Agreement, except to the extent that such Losses are caused by the gross negligence or willful misconduct of Lyric; (2) violations of Customer’s warranty obligations; and/or (3) the gross negligence or willful misconduct of Customer or its employees, agents or representatives.
(b) Lyric shall indemnify, defend and hold harmless Customer from and against all costs, expenses, claims, liabilities, demands, causes of action, losses or damages and all costs and expenses (including reasonable attorneys’ fees) arising from any third party claim(s) against Customer alleging that: (1) that the Software, Lyric Materials, or Lyric Technology infringe any patent or any copyright or misappropriate of a trade secret; and/or (2) gross negligence or willful misconduct of Lyric or its employees, agents or representatives. Lyric’s indemnification obligations shall only apply if Lyric is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Lyric will not be responsible for any settlement it does not approve. For claims arising under Section 9(b)(1), the foregoing obligations do not apply with respect to portions or components of the Software (i) not created by Lyric, (ii) resulting in whole or in part from Customer specifications, (iii) that are modified after delivery by Lyric, (iv) combined with other Software, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of Software is not strictly in accordance with this Agreement and all related Documentation. If Lyric receives information about an actual or alleged infringement or misappropriation claim that would be subject to indemnification rights set forth in this Section 10, Lyric shall have the option, at its expense, to: (a) modify the Software to be non-infringing; or (b) obtain for Customer and/or End-User a license to continue using the Software. If Lyric determines it is not commercially reasonable to perform either of the above options, then Lyric may, at its option, elect to terminate the license for the Software and refund the unearned portion of any pre-paid subscription Fees, prorated on a monthly basis. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT, MISAPPROPRIATION AND/OR CLAIMS ALLEGING INFRINGEMENT OR MISAPPROPRIATION.
SECTION –10 – GENERAL PROVISIONS
10.1 Modifications, Amendments, and Waivers. No representation or promise hereafter made, nor any modification or amendment of this Agreement, will be binding upon either party to this Agreement, unless in writing and signed by duly authorized representatives of both parties. The waiver by either party hereto of a breach of any obligation of the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement. In any conflict between the terms of this Agreement and the terms of the Statement of Work, the governing terms of this Agreement shall prevail, unless the conflicting provision(s) in the Statement of Work expressly refer to the provision(s) of this Agreement over which they are to take precedence.
10.2 Compliance with Laws. Both parties shall comply in all material respects with all applicable United States, federal, state, and local laws and all foreign laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Software.
10.3 Severability. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.
10.4 Publicity. Lyric may issue any press release concerning the Agreement, and may use Customer’s name, logo, trade name, trademarks, or other proprietary information or materials in association with such press release or in a listing of Lyric’s Customers, provided that any use shall comply with any brand guidelines Customer provides to Lyric.
10.5 Assignment. Neither party may assign or transfer this Agreement or any right or duty under this Agreement to a third party without the other party’s prior written consent, except that either party may transfer this Agreement, together with all of its rights and duties under this Agreement, to a successor entity if the party is acquired, whether by equity or asset purchase, merger, corporate restructuring or reorganization, or the like, or any wholly-owned affiliate. Any purported assignment or transfer in violation of this Section is void.
10.6 Relationship of the Parties. The relationship of Lyric and Customer established by this Agreement is of independent contractors. Nothing contained in this Agreement shall be construed to create any partnership, employment relationship, joint venture, agency or other similar relationship. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party.
10.7 Governing Law. This Agreement shall be construed and enforced in accordance with the substantive laws of the State of New York as it applies to contracts negotiated, executed, delivered, and performed solely within such jurisdiction.
10.8 Force Majeure. Neither party shall be responsible for any failure to perform due to unforeseen circumstances or causes beyond its reasonable control (a “Force Majeure”), including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of labor or materials.
10.9 Notices. All notices required or permitted by this Agreement shall be deemed given when reduced to writing and served upon the other party by (a) personal delivery, (b) email, or (c) certified mail, return receipt requested, to the following addresses (or to an alternate address designated by the subject party in writing, and delivered to the other party pursuant to this Notice provision)
If to Lyric: If to Customer:
Attention: Attention:
Address: Address:
Phone: Phone:
Email: Email:
10.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Signature pages may be exchanged by facsimile or in an electronically retrievable format.
10.11 Entire Agreement. This Agreement together with the exhibits, Statements of Work and addenda attached hereto, constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings, and agreements between the parties with respect to the subject matter hereof.
10.12 Reseller Orders. This Section applies if the Software is purchased by Customer through an authorized Reseller.
(a) Commercial Terms. Instead of paying Lyric, Customer will pay applicable amounts to the Reseller as agreed between Customer and the Reseller. Customer’s order details (e.g., Scope of Use and fees) will be as stated in the Order placed by the Reseller with Lyric on Customer’s behalf. The Reseller is responsible for the accuracy of such Order. Lyric may terminate Customer’s rights to use the Software if it does not receive the corresponding payment from the Reseller. If Customer is entitled to a refund under this Agreement, Lyric will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to Customer, unless otherwise specified.
(b) Relationship with Lyric. This Agreement is directly between Lyric and Customer and governs all use of the Software by Customer. Resellers are not authorized to modify this Agreement or make any promises or commitments on Lyric’s behalf, and Lyric is not bound by any obligations to Customer other than as set forth in this Agreement. Lyric is not party to (or responsible under) any separate agreement between Customer and the Reseller and is not responsible for the Reseller’s acts, omissions, products or services. The amount paid or payable by the Reseller to Lyric for Customer’s use of the applicable Software under this Agreement will be deemed the amount paid or payable by Customer to Lyric under this Agreement for purposes of Section 4.3 (Limitations of Liability).
BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT AND ALL ATTACHED EXHIBITS, AND THAT THEY ARE NOT ENTERING INTO THIS AGREEMENT ON THE BASIS OF ANY REPRESENTATIONS NOT EXPRESSLY SET FORTH HEREIN. THIS AGREEMENT IS BINDING UPON EXECUTION BY AN AUTHORIZED REPRESENTATIVE OF LYRIC AND ACCEPTANCE BY AN AUTHORIZED REPRESENTATIVE OF CUSTOMER, AND MAY ONLY BE ALTERED BY A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH PARTY.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
| Lyric | Customer |
| By: | By: |
| Printed Name: | Printed Name: |
| Title: | Title: |
| Date: | Date: |
Exhibit A:
Order Forma and Statement of Work – _________________ License Fee and Implementation Services
Description of Licensed Software and Services
Description Fee Schedule
| Credits Purchased | [_____________] |
| Available Services | Credits Per Use |
Pass Through Service Costs
| Provider | Term (if applicable) | Cost |
| AWS/Azure | ||
| Gurobi | ||
| Other Data Modules | ||
Maintenance Services Lyric will maintain the Lyric Technology in accordance with the documentation. Lyric shall not be responsible for maintenance with respect to any Customer-provided code or Customer-provided components.
Agreed and accepted:
| Lyric | Customer |
| By: | By: |
| Printed Name: | Printed Name: |
| Title: | Title: |
| Date: | Date: |