LemonadeLXP Master Subscription Agreement
Last revised: Jan 1, 2024
This LemonadeLXP Master Subscription Agreement (“MSA”) is effective as of the effective date of an applicable signed order form ( “Order Form” and such date the “Effective Date”) and is by and between LemonadeLXP Inc., a Canadian corporation with a place of business at 2139 Algonquin Ave. Ottawa, Canada, K1Y 1B6 (“LemonadeLXP”), and the customer (i) set forth on the Order Form or (ii) who registers for the Services and accepts this MSA (each, a “Customer”) (each a “Party” and together the “Parties”). In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control.
LemonadeLXP Services and Software Terms and Conditions
1.1. “Admin User” means an Authorized User who has access to certain additional features and functionalities of the LemonadeLXP Services to monitor and administer Your Account (defined in Section 2.1).
1.2. “Authorized User” means an employee, contractor, or agent of Customer who is authorized to use the LemonadeLXP Services and who has access to the LemonadeLXP Services via a unique username and password under Your Account.
1.3. “Initial Term” means the twelve (12) month period following the Order Effective Date.
1.4. “Order” means any Services Order Form signed by the Parties that references these Terms and describes the services to be provided by LemonadeLXP and the fees that will be paid by Customer.
1.5. “LemonadeLXP Services” means LemonadeLXP’s web application accessible via the URL you will designate.
1.6. “Services” means the services provided to You by LemonadeLXP as indicated in Your Order, including the LemonadeLXP Services.
1.7. “Service Fees” the fees LemonadeLXP charges, and You pay, for the Services as specified in Your Order.
1.8. “Software” means LemonadeLXP’s software and tools (including updates) provided to Your Authorized Users by LemonadeLXP to facilitate use of or access to the LemonadeLXP Services.
1.9 “Third Party Email” means an email account that is not provided by Software and is managed by your organization, or a subcontractor to your organization. Each Authorized User must have authenticated access to their designated Third Party Email account.
2. SERVICES AND SOFTWARE
2.1. We will provide the Services to You in accordance with Your Order and these Terms. As of the Order Effective Date You will receive access to a LemonadeLXP Services account (“Your Account”). To use the Services You must link at least one Third Party Email account to Your Account, but may link no more email accounts than the total number of Your Authorized Users. You will keep all information related to Your Account current and promptly notify us of any changes by sending email to [email protected].
2.1.1 Your Authorized Users will also be required to register for LemonadeLXP Services using a third party email account. This email account can be specified during registration, using any of the registration mechanisms provided by LemonadeLXP Services.
2.2. Some features and functionalities of our LemonadeLXP Services may require Your Authorized Users to download and use our Software. During the Term, and subject to Your payment of all applicable Service Fees, LemonadeLXP hereby grants You a limited, nonexclusive, non transferable, non sublicensable, revocable right and license to (i) access and use the LemonadeLXP Services via a web browser or web-enabled device and (ii) use the Software solely for the purposes of accessing and using the Services. If we provide You with any Software under an open source license, there may be provisions in those licenses that conflict with these Terms, in which case the open source provisions will apply with respect to the code to which those provisions apply.
2.3. We may modify the Services or update the Software from time to time without notice to You. We will notify You in advance if a change is material, other than those changes which enhance or extend any features or functionality of the Services or Software.
2.4. You are solely responsible for the acts and omissions of Your Authorized Users, including their use of the Services, Software, and Your Data (defined in Section 3.1), and/or any use of the Services made using an Authorized User’s username and password. You warrant that You will only permit Authorized Users to access the LemonadeLXP Services and that You and Your Authorized Users will maintain the security of their usernames and passwords. You will notify LemonadeLXP immediately if You suspect or become aware of any unauthorized use of the Services or if an Authorized User’s username or password is lost or stolen.
2.5. You and Your Authorized Users must not:
- (a) use the LemonadeLXP Services to provide services to third parties or otherwise reproduce, license, sell, rent, lease, outsource, act as service bureau, or sublicense the LemonadeLXP Services or Software;
- (b) use the LemonadeLXP Services or Software (including by uploading Your Data, downloading or sharing other content or information, or emailing, or communicating with others through the LemonadeLXP Services) in any manner that LemonadeLXP reasonably believes is harmful, infringing, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful, or otherwise violates the rights of another or does not comply with applicable law;
- (c) except as permitted by applicable law, decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access or derive the source code or other trade secrets from the LemonadeLXP Services or Software;
- (d) interfere with or disrupt, disable, damage, impair, or overburden the LemonadeLXP Services or Software, including by transmitting viruses or other malicious code or using the LemonadeLXP Services to spam others;
- (e) attempt to access LemonadeLXP Service servers or computer networks without authorization or in excess of authorization, or conduct penetration tests or other similar security scans (including fuzzing) on LemonadeLXP production infrastructure without prior written authorization.
2.6 You are solely responsible for the management of Your Authorized Users using Software’s administrative interface. LemonadeLXP does not provide user management services for the provision or destruction of Your Authorized Users.
3. YOUR DATA
3.2. Your Data is not visible to any third parties unless You and Your Authorized Users use the Services to share Your Data with others. If Your Authorized Users choose to share Your Data, You are solely responsible for that disclosure, and what any third parties do with Your Data. Likewise, You are solely responsible for any actions Your Authorized Users take with respect to Your Data, including deleting or corrupting Your Data. You acknowledge that We are not responsible for the disclosure of Your Data by You or Your agents (including Your Authorized Users), to any third parties.
3.3. You are solely responsible for Your Data, including the accuracy and integrity of Your Data and for correcting errors and omissions in Your Data. You acknowledge that LemonadeLXP has no obligation to monitor any information on the LemonadeLXP Services and that we are not responsible for the accuracy, completeness, appropriateness, or legality of Your Data or any other information or content You may be able to access using the Services.
3.4. LemonadeLXP will use commercially reasonable measures to maintain and enforce physical and logical security procedures with respect to its access and maintenance of the LemonadeLXP Services and any of Your Data stored for the provision of the Services. LemonadeLXP will use commercially reasonable efforts to remedy any breach of security or unauthorized access to Your Data. You acknowledge that if You wish to protect Your Data when You are transmitting it to LemonadeLXP, it is Your responsibility to use a secure encrypted connection to do so.
4. PAYMENT, TAXES
4.1. LemonadeLXP will invoice You for amounts due under the Agreement and You will pay all Service Fees as specified in the Order, You will also pay all costs incurred by LemonadeLXP to collect undisputed amounts due, including reasonable attorneys’ fees, whether or not litigation is commenced.
4.2. You will pay all applicable sales, use, service, value added, consumption or other taxes associated with the Services You purchase. LemonadeLXP will pay all taxes on its income and all taxes and insurance associated with its personnel.
4.3. After the Initial Term, the Service Fees are subject to change and may be changed upon email notice to You at least sixty (60) days prior to the start of any Renewal Term.
5. TERM AND TERMINATION
5.1. This Agreement will commence on the Order Effective Date and will continue for the Initial Term, after which it will automatically renew for successive terms of twelve (12) months each (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless otherwise specified in the Order Form.
5.2. Except as permitted in (i) Section 1 of the Order, this Agreement may only be terminated as follows:
(A) either Party may terminate this Agreement at any time, immediately upon written notice to the other,
- (a) the other Party attempts to assign this Agreement or delegate any obligation under the Agreement without the non-assigning Party’s consent, except as otherwise permitted hereunder; or
- (b) any assignment is made of the other Party's business for the benefit of creditors, or if a petition in bankruptcy is filed by or against the other Party, or if a receiver or similar officer is appointed to take charge of all or part of the other Party's property, or if the other Party is adjudicated a bankrupt;
- (B) either Party may terminate this Agreement upon written notice to the other if the other Party is in breach of any material term or condition of this Agreement and the breaching Party fails to cure the breach within thirty (30) days of receipt of notice of that breach; or
- (C) either Party may terminate the auto-renewal of this Agreement upon written notice to the other Party, which notice is given at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term, as the case may be. If any discounts have been applied by LemonadeLXP to the annual license fees based on an agreed Initial Term or Renewal Term, and You decide to terminate this Agreement prior to the expiry of the agreed Initial Term or Renewal Term, LemonadeLXP may in its sole discretion reverse any such discount, and invoice You accordingly. You shall pay any such invoice within 14 days of its issuance by LemonadeLXP.
5.3. In addition to any other remedies available at law or in equity, LemonadeLXP will have the right to immediately, in its sole discretion, suspend Your or any of Your Authorized Users’ access to the LemonadeLXP Services, deactivate any Authorized Users’ usernames and passwords, restrict Your ability to use certain features of the LemonadeLXP Services, and/or remove Your Data from the LemonadeLXP Services if LemonadeLXP, in its sole discretion, determines that:
- (a) Your or Your Authorized Users’ continued use of the Services may result in harm to the Services or any other system of LemonadeLXP, its customers, or a third party;
- (b) You or Your Authorized Users’ continued use of the Services may result in a violation of this Agreement, applicable law, or legal rights of LemonadeLXP or any third party; or
- (c) LemonadeLXP needs to carry out emergency maintenance.
We will, when it is reasonably practicable, give You prior email notice of suspension under this Section. We will not be liable to You for any loss, damage or inconvenience suffered as a result of any suspension. Upon the occurrence of any such suspension, at such time as the underlying cause is either remedied by Customer to the reasonable satisfaction of LemonadeLXP or, if not attributable to Customer otherwise abates or ceases to persist, then LemonadeLXP shall exercise all reasonable efforts to fully reinstate the Services affected without undue delay.
5.4. Upon termination of this Agreement, LemonadeLXP will cease providing the LemonadeLXP Services and promptly invoice Customer for any unpaid amounts owed, and Customer will pay LemonadeLXP for all Services rendered and expenses incurred prior to the effective date of termination. Terminating this contract prior to the end of the license term (as set out in Section 1) will result in the loss of any multi-year discounts. LemonadeLXP will provide Customer an account statement and invoice for prorated license fees at book rate. If Customer has prepaid license fees, LemonadeLXP will provide Customer with a refund based on the prorated license costs at book rate. Unless otherwise agreed upon, LemonadeLXP will, within thirty (30) days of termination of this Agreement, irretrievably delete Your Data. You acknowledge that if Your access to the Services is suspended or the Agreement is terminated, You will no longer have access to Your Data stored on the LemonadeLXP Services.
6. NON DISCLOSURE OF CONFIDENTIAL INFORMATION
6.1. During the Term and for a period of five (5) years after termination of the Agreement (except for trade secrets, which shall be held in confidence for so long as they constitute trade secrets), each Party (the “Receiving Party”) that receives Confidential Information (as defined below) of the other Party (the "Disclosing Party") will not use, other than in connection with the provision or receipt of the Services, or disclose to anyone, other than officers, employees or representatives of the Receiving Party with a need to know for purposes of this Agreement and who are subject to confidentiality obligations consistent with the terms of this Agreement (“Representatives”), any Confidential Information disclosed to the Receiving Party by or on behalf of the Disclosing Party. The Receiving Party will safeguard disclosure of such Confidential Information to the same extent that Receiving Party safeguard’s its own Confidential Information, but in any case will at a minimum use reasonable care. Upon request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy, certifying in writing to the Disclosing Party the destruction of such Confidential Information, the Disclosing Party’s Confidential Information in its possession or under its control.
6.2. “Confidential Information” means all information, material and data of the Disclosing Party which (i) is labeled or designated in writing as confidential or proprietary, (ii) the Receiving Party is advised is proprietary or confidential, or (iii) in view of the nature of such information and/or the circumstances of its disclosure, the Receiving Party knows or reasonably should know is confidential or proprietary. Confidential Information includes, without limitation, the terms and conditions of this Agreement, the Services and Software, Your Data, and all information relating to the Disclosing Party’s business plans, marketing plans, customers, technology, employee and organizational information, product designs, product plans and financial information.
6.3. These confidentiality obligations will not apply to any information which (i) is or becomes publicly known without any fault of or participation by the Receiving Party or its Representatives, (ii) was in Receiving Party's possession prior to the time it was received from Disclosing Party or came into Receiving Party's possession thereafter, in each case lawfully obtained from a source other than Disclosing Party or its Representatives and not subject to any obligation of confidentiality or restriction on use, or (iii) is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Receiving Party will, unless prohibited by law, notify the Disclosing Party of the requirement of disclosure before making such disclosure and will comply with any protective order or other limitation on disclosure obtained by the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information.
6.4. Any use or disclosure of the Disclosing Party's Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Disclosing Party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the Disclosing Party may request injunctive or other equitable relief seeking to restrain such use or disclosure.
7.1. LemonadeLXP warrants that: (i) it will perform the Services in conformity in all material respects with the Service Level Agreement: (ii) it will provide the Services in a professional manner, consistent with recognized industry standards and good commercial practices; (iii) it will comply with all applicable federal, state and local laws, regulations and ordinances, and be duly licensed and otherwise authorized to provide the Services; and (iv) to the best of its knowledge, as of the date of delivery to You, the Software and LemonadeLXP Services do not infringe upon or misappropriate any Intellectual Property Rights (defined in Section 9.1) of any third party.
7.2. WITH THE EXCEPTION OF THOSE EXPRESS WARRANTIES MADE IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LEMONADELXP DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. INTELLECTUAL PROPERTY
8.1. You acknowledge that, as between the Parties and except as licensed in Section 2.2, LemonadeLXP owns and retains all right, title and interest in the Intellectual Property Rights in the Services and Software. Except as licensed under Section 3, You own and retain all right, title, and interest in the Intellectual Property Rights in Your Data. “Intellectual Property Rights” means: (i) copyrights and other rights associated with works of authorship; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; and (v) all registrations, applications, renewals, extensions, continuations, divisions, or reissues now or in the future.
8.2. You agree that we (or others we authorize) may freely use, disclose, reproduce, license, distribute, or otherwise exploit in any manner any feedback, comments, or suggestions your post in our forums or otherwise provide to us about our Services and Software without any obligation to You, restriction of any kind (including on account of any Intellectual Property Rights), and without paying any compensation to You or any third party.
8.3. You acknowledge that information and content accessible through the LemonadeLXP Services may be protected by Intellectual Property Rights of third parties (in each instance under adequate licence). The LemonadeLXP Services may contain links to websites or resources of others, however we do not endorse and are not responsible or liable for the accuracy, availability, content, products, or services of any third party. You are solely responsible and liable for Your use of any third party websites and any third party content or information You copy, share, or download while using the Services. We will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. Such notices should be reported using the Notice and Notice Regime provision in the Copyright Modernization Act of Canada.
9. DEFENSE AND INDEMNITY
9.1. LemonadeLXP will defend, indemnify and hold harmless Customer and its officers, directors, employees, members, agents, legal representatives, subsidiaries, affiliates, successors and permitted assigns from and against any claim, action, demand or proceeding by a third party (collectively “Claims”) resulting in liability, direct damages, cost, loss or expense, including court costs and reasonable attorney’s fees (collectively “Losses”) to the extent they result from a breach of any warranty set forth in Section 9.1. If a Loss is found by a court of competent jurisdiction to have been caused only in part by LemonadeLXP, then its liability hereunder will be only such amount as is attributable to its fault. Notwithstanding the foregoing, we shall have no liability under this section to the extent that an alleged infringement of Intellectual Property Rights arises from (i) use of the LemonadeLXP Services and/or Software in combination with other equipment or software not provided or approved by us in writing, if such claim would have been avoided but for such combined use; (ii) any modification to the Software made by You or any other third party not approved by us in writing or permitted under this Agreement; (iii) Your failure to install any Software updates provided by us; or (iv) use of the LemonadeLXP Services and/or Software other than in the manner permitted or authorized under this Agreement. THE PROVISIONS OF THIS SECTION STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF LEMONADELXP TO CUSTOMER, AND CUSTOMER'S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
9.2. Customer will defend, indemnify and hold harmless LemonadeLXP and its officers, directors, employees, members, agents, legal representatives, subsidiaries, affiliates, successors and permitted assigns from any Claims resulting in Losses to the extent they result from a breach by Customer (including its Authorized Users) of any of its representations and warranties set forth in this Agreement.
9.3. The Party seeking indemnification under this Agreement will: (i) give the indemnifying Party prompt written notice of the Claim, (ii) tender to the indemnifying Party control of the defense and settlement of the Claim, and (iii) cooperate with the indemnifying Party in defending or settling the Claim. The indemnified Party will have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its own choice. Neither Party may consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other Party without that Party’s prior written consent, which may not be unreasonably withheld. If a final injunction is obtained against Customer’s right to continue using the Services and/or Software or, if in our opinion the Services and/or Software are likely to become the subject of a claim, we shall (a) obtain the right for You to continue to using the Services and Software; or (b) replace or modify the Services and/or Software so that they no longer infringe but function equivalently or (c) if neither (a) or (b) is commercially practicable, we shall terminate this Agreement and the license granted hereunder, and within thirty (30) days of the return of all Confidential Information to us by Customer, refund to Customer all unearned fees paid by Customer, if any, for any Services not yet performed.
10. INDEPENDENT CONTRACTORS
LemonadeLXP and Customer are independent contractors and this Agreement will not establish any relationship of partnership, employment, agency, joint venture, or franchise LemonadeLXP and Customer. Neither Party will have authority, and will not represent that it has any authority, to bind the other.
11.1. Neither Party may assign this Agreement, or any of its rights or obligations under the Agreement, without prior written consent of the other Party, provided, however that either Party may assign its rights and obligations to any of its majority owned affiliates or subsidiaries, or to any successor in interest to all or substantially all of such Party’s business or assets associated with the Services, provided that such successor is not a competitor of the other Party.
11.2. Except as otherwise expressly set forth in these Terms, all notices given to the Parties under the Agreement will be in writing and will be given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile with electronic confirmation or personal delivery, if to Customer at the address indicated on the Order, and if to LemonadeLXP at:
LemonadeLXP, inc. Attn: Legal Notices 2139 Algonquin Ave. Ottawa, ON K2A 0B9 With a copy emailed of even date to: [email protected]
11.3. This Agreement is governed by the laws of the State of Delaware, without regard to its conflicts of law rules. Any legal proceeding arising out of or relating to this Agreement will be brought in the provincial and federal courts of Wilmington, Delaware. Each Party consents to the exclusive jurisdiction and venue of such courts.
11.4. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions will in no way be affected or impaired. A Party does not waive any right under this Agreement by failing to insist on compliance with any term or by failing to exercise any right under this Agreement. Waiver of any provision of this Agreement is effective only if it is written and signed by the Party granting the waiver and will not imply a subsequent waiver of that or any other provision of this Agreement.
11.5. The rights and remedies of the Parties under this Agreement are cumulative, and either Party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at law or in equity.
11.6. The section headings of this Agreement are for convenience only and have no interpretive value. Any list of examples following "including" or "e.g.," is illustrative and not exhaustive, unless qualified by terms like "only" or "solely." This Agreement may be executed by facsimile and in counterparts, which together will constitute one and the same agreement.
11.7. The rights and obligations of a Party which by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes will survive any termination of this Agreement.
11.8. EXCEPT FOR A PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR ANTICIPATED ORDERS, OR DAMAGES FOR LOSS OF GOODWILL, EVEN IF A PARTY WAS INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
11.9. EXCEPT FOR ITS RESPECTIVE CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS RELATING TO THE SERVICES OR CONNECTED WITH THIS AGREEMENT, REGARDLESS OF THE DAMAGES THEORY, WILL NOT EXCEED THE FEES PAID TO LEMONADELXP UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. LEMONADEXP WILL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY CUSTOMER TO THE EXTENT ARISING FROM ANY UNAUTHORIZED ACCESS RESULTING FROM THE ACTIONS OF CUSTOMER OR ANY THIRD PARTY OTHER THAN LEMONADELXP’S REPRESENTATIVES.
11.10. The Services and Software are subject to the trade laws and regulations of Canada, the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). You will not import, export, re-export, transfer or otherwise use the Software or Services in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Software and Services, You represent and warrant that You are not located in any such country or on any such list. You will not engage in activity that would cause LemonadeLXP to be in violation of these laws and regulations, and You will indemnify LemonadeLXP for any fines, penalties or other liabilities incurred by LemonadeLXP for Your failure to comply with this provision.
11.11. LemonadeLXP represents that it performs comprehensive privacy and security assessments and certifications performed by multiple third parties and third party tools. Such assessments include application scans (AWS Inspector) and penetration tests (Acunetix) and zero-day community-sourced vulnerability scans (Detectify).
11.12. No action, regardless of form, arising from this agreement, may be brought by either Party more than two (2) years after delivery of the Services or Software that would be the subject matter of such action.
11.13. Neither Party will be liable for any delay or default in its performance of any obligation under the Agreement (other than a payment obligation) caused directly or indirectly by , fire, flood, act of God, acts of government, an act or omission of civil or military authority of a state or nation, strike, lockout or other labor problem, inability to secure, delay in securing or shortage of, labor, materials, supplies, transportation or energy, failures of subcontractors or suppliers, or by war, riot, embargo or civil disturbance, breakdown, or destruction of plant or equipment arising from any cause whatsoever, or any cause or causes beyond such Party’s reasonable control (collectively, “Force Majeure Events”). This provision will in no way impair either Party’s right to terminate this Agreement.
11.14. This Agreement, constitutes the complete and final agreement of the Parties pertaining to the Services, and supersedes the Parties’ prior agreements, understandings and discussions relating to the Services. No modification of this Agreement is binding unless it is in writing and signed by Customer and LemonadeLXP. In the event of any conflict or inconsistency between a provision in these Terms and in an Order, the provision in these Terms will govern unless the Order expressly indicates the intent to override the contrary provision in the Terms.
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) shall govern the provisioning of LemonadeLXP Services pursuant to the LemonadeLXP Services and Software Terms and Conditions.
I. PERFORMANCE STANDARDS.
Availability. The Services shall operate and be available no less than 99.9% of the time for 24 hours a day. Scheduled Downtime, Emergency Scheduled Downtime for service and maintenance, or downtime caused by the mismanagement of domain records (including CAA Records or DNSSEC) in the master DNS zone file shall not count against availability commitments.
Scheduled Downtime. Scheduled Downtime shall only occur between the hours of 10 P.M. – 6 A.M., Eastern Standard Time. If Scheduled Downtime is expected to exceed 30 minutes, Provider will notify Customer at least 4 days in advance.
Emergency Scheduled Downtime. Emergency Scheduled Downtime can occur anytime, at Provider’s discretion, to rapidly apply security patches with a high risk categorization or to implement firewall countermeasures if the hostname associated with your LemonadeLXP Services is under attack. Provider is not required to provide any advance warning in conjunction with the application of these corrective measures or for related compensating controls.
II. ERROR CORRECTION.
Provider shall promptly notify Customer of any errors, malfunctions, or other Non-Conformity in the System or Services. In the event that Provider becomes aware of or Customer reports to Provider any error or Non-Conformity in the Services, Provider shall, in its sole discretion, determine the Severity Level and respond to such reports as follows:
Severity Level 1 Problem. “Severity Level 1 Problem” is an emergency condition which makes the use or continued use of any one or more functions of the Services impossible. The condition requires an immediate solution that is not already available to Customer. Provider will respond to a Customer report of a Severity Level 1 Problem within two (2) hours of receipt of the problem report and immediately thereafter use its best efforts (including by diligently and continuously performing such services as may be necessary) to:
- (a) promptly replicate and verify the reported problem;
- (b) arrive at a fix (or workaround acceptable to Customer) as promptly as possible; and
- (c) provide Customer with the final form of the fix ("Final Fix") or work-around promptly after the fix or workaround has been developed (and, if a work-around is provided, the Final Fix shall be provided as promptly as possible thereafter).
Severity Level 2 Problem. “Severity Level 2 Problem” is, other than any Severity Level 1 Problem, any condition which makes the use or continued use of any one or more functions of the Services difficult and which Customer cannot reasonably circumvent or avoid on a temporary basis without the expenditure of significant time or effort. Provider will respond to a Customer call reporting a Severity Level 2 Problem within four (4) hours of receipt of the problem report and immediately thereafter use its best efforts (including by diligently and continuously performing such services as may be necessary) to:
- (a) promptly replicate and verify the reported problem;
- (b) arrive at a fix (or workaround acceptable to Customer) as promptly as possible; and
- (c) provide Customer with the Final Fix or work-around promptly after the Final Fix or work-around has been developed (and, if a work-around is provided, the Final Fix shall be provided as promptly as possible thereafter).
Severity Level 3 Problem. “Severity Level 3 Problem” is, other than any Severity Level 1 Problem or Severity Level 2 Problem, any limited condition which is not critical in that no loss of data occurs and which Customer can reasonably circumvent or avoid on a temporary basis without the expenditure of significant time or effort. Provider will respond to a Customer call reporting a Severity Level 3 Problem within one (1) business day following receipt of the problem report, and immediately thereafter diligently perform, during normal business hours, such services as may be necessary to:
- (a) promptly begin work on error identification and verification;
- (b) provide Customer with a fix (or work-around acceptable to Customer) as promptly as possible; and
- (c) provide Customer with a Final Fix or work-around promptly after the fix or work-around has been developed (and, if a work-around is provided, the Final Fix shall be provided as promptly as possible thereafter).
Severity Level 4 Problem. “Severity Level 4 Problem” is, other than any Severity Level 1 Problem, Severity Level 2 Problem or Severity Level 3 Problem, a minor problem condition or error which Customer can easily circumvent or avoid. Provider will respond to a Customer call reporting a Severity Level 4 Problem within one (1) business day of receipt of the problem report, thereafter begin work on error identification and verification within five (5) days of receipt of the problem report, and provide Customer with a Final Fix.
In the event that the Services are available less than 99.9% pursuant to Section I(A) of this SLA, Provider shall pay to Customer credits (“Service Credits”) as follows:
Where LemonadeLXP Services Availability for a given month is:
|Service Credit = One (1) day of prorated License Fees for that month
|Service Credit = Two (2) days of prorated License Fees for that month
|Service Credit = Five (5) days of prorated License Fees for that month
Service Credits will either: (i) be issued by Provider against the next invoice submitted to Customer following Customer’s notification to Provider of Outage Time that is not excluded under the terms of this Appendix; or (ii) paid promptly to Customer if no further invoices are to be issued by Provider to Customer. Provider agrees and acknowledges that the Service Credits constitute an estimate made by the parties of minimum liquidated damages that would be suffered by Customer in the event that Provider fails to meets minimum levels of LemonadeLXP Services Availability, and that such Service Credit does not constitute a penalty. The parties agree that payment of any Service Credit shall not replace any rights or remedies available to Customer, whether under this Agreement or otherwise at law.
For any other Non-Conformities, Provider shall pay to Customer an amount equal to the charges paid by Customer for the particular portion of the Services affected by the failure (or, if charges are not specifically allocated to such particular portion of the Services, a refund of an equitable portion of any sums paid by Customer under this Agreement). In order to receive a credit pursuant to this section, Customer shall submit any claim for credits no later than thirty (30) days after the end of the month in which the Non-Conformity occurred; provided that, in the event that Provider delays in providing reports as described in Section IV below for the month in question, Customer’s right to make a credit claim will be extended by a time equivalent to Provider’s delay.
In order to measure the performance of Provider under this SLA and to permit Customer to monitor the Services and make claims for any credits due, Provider shall provide, or make available via a dedicated web site, monthly reports to Customer containing measurements of the metrics identified by this SLA and other information as mutually agreed by the parties. Customer reserves the right to monitor the performance of the metrics and compile its own statistics to compare to Provider’s reports.