Lilt Technologies Master Services Agreement
Lilt Technologies Master Services Agreement
Last updated: 10 January 2023
This MASTER SERVICES AGREEMENT (the “Agreement”) is entered into by and between you and Lilt Technologies Limited, a company incorporated under the laws of Ireland, with a registered address at 70 Sir John Rogerson’s Quay, Dublin 2, Ireland (“Lilt”). For the purposes of this Agreement, “you”, “your”, or “Customer” means the party identified as the customer in the applicable Ordering Document (as defined herein). By executing an Ordering Document that references this Agreement, each party signifies that it has read, understands, and agrees to be bound by its terms. This Agreement governs all Ordering Documents; any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by both parties. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Services.
1.1. Ordering. Lilt is the provider of certain technology-powered translation services (“Services”). Specific business terms associated with the Services will be: (a) stated in one or more ordering documents or statements of work executed by the parties (or Customer and a Reseller) that reference this Agreement, or (b) agreed to by Customer and a Reseller through a Reseller’s online marketplace (both (a) and (b) being an “Ordering Document(s)”). This Agreement governs all Ordering Documents; any conflicting or additional terms and conditions are of no force or effect unless agreed to in a writing signed by both parties. Ordering Documents are hereby incorporated into this Agreement by reference. The Ordering Document may include specific descriptions of deliverables to be supplied to Customer (“Deliverables”), milestones, subscription period (“Subscription Period(s)”), and other related terms. For the purposes of this Agreement, a “Reseller” means a resale partner that is authorized by Lilt to resell the Services and/or Platform (as defined below). Customer’s affiliates may utilize the Services pursuant to Ordering Documents executed under this Agreement provided that Customer represents and warrants that it: (i) has the authority to negotiate and enter into this Agreement on behalf of each of its affiliates which will utilize the Services hereunder, and (ii) shall be responsible for any breach of the terms and conditions of this Agreement by such affiliates. An “affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
1.2. Schedules. If a schedule for provision of the Deliverables is stated in an Ordering Document, Lilt will use commercially reasonable efforts to adhere to such schedule. If Customer’s acts or omissions result in delays that affect Lilt’s ability to adhere to an agreed-upon schedule, such schedule will be appropriately and equitably extended.
1.3. Provision of Deliverables. When it believes it has appropriately completed a Deliverable, Lilt will deliver such Deliverable to Customer. After delivery, Customer shall notify Lilt of any edits and submit any revisions to either the relevant Customer Materials, or the Deliverable(s), within (5) business days and Lilt will implement such revisions promptly and redeliver the Deliverable to Customer. If Customer identifies an issue with a Deliverable and Lilt can show that the issue was caused by something other than Lilt's acts or omissions, Customer will pay Lilt for any related services performed to correct such Deliverable.
1.4. Assistance. Customer will provide all assistance and cooperation reasonably necessary to permit Lilt to perform the Services (including but not limited to any tasks stated on an Ordering Document). Customer acknowledges and agrees that if it does not provide such assistance and cooperation, Lilt’s ability to provide the Services may be impaired, which may result in additional charges being invoiced to Customer as a result of additional time or expenses incurred by Lilt. Lilt will not be responsible for delays in the provision of Services caused solely by Customer’s failure to comply with this Agreement, any Ordering Document.
1.5. Customer Materials. Customer will provide Lilt with all documents, data, files, information, materials, or resources that Lilt reasonably requests in order for it to provide the Services (“Customer Materials”). Customer hereby grants Lilt a limited license to use all Customer Materials for the purposes of providing the Services. Customer acknowledges and agrees that Lilt will be using and relying on the Customer Materials, and Lilt will not be responsible, and Customer will be fully responsible for the accuracy or completeness of any of the Customer Materials.
1.6. Customer Materials Restrictions. Customer is responsible for the content of any Customer Materials and the way Customer and its Users choose to use the Platform to store or process any Customer Materials. Except for Lilt’s own obligations of confidentiality and data security hereunder, Customer is therefore solely responsible for ensuring compliance with all applicable laws that may apply to Customer Materials, including but not limited to privacy laws. Unless otherwise agreed to in writing by both parties, Customer may not submit any Customer Materials that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card data, or any other information which may be subject to data privacy and security laws intended to protect data referred to in Article 10 of the General Data Protection Regulation 2016/679 (GDPR), including special category data for the purposes of the GDPR; and sensitive personal information including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), or the Children's Online Privacy Protection Act (COPPA). The Service is also not intended for and should not be used by anyone under the age of 13. Customer must ensure that all Users are over 13 years old. Lilt does not make any representations as to the adequacy of the Service to process information which may be subject to data privacy and security laws intended to protect sensitive personal information or to satisfy any legal or compliance requirements which may apply to Customer Materials, other than as described herein.
1.7. Machine Learning. Customer acknowledges that a fundamental component of the Services provided through the Platform (as defined below), whether directly or indirectly, includes a method of optimization that uses computer programming to analyze data taught and trained from Customer Materials, creating a set of algorithms that extract knowledge from such data through statistical learning (“Machine Learning”). Therefore, Customer hereby grants to Lilt a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, and display any Customer Materials incorporated into the Machine Learning, without obligation or restriction, for purposes of creating and using the Machine Learning. Excluding Customer Materials, such Machine Learning, including the method of optimization and the algorithms, are the exclusive property of Lilt and Lilt owns all right, title, and interest to the Machine Learning.
2. Change Process. If either party proposes a change to an Ordering Document, such party must do so in writing and the other party will reasonably and in good faith consider and discuss such change with the proposing party (“Change Order”). Lilt will inform Customer of the cost of such Change Order and no Change Order will be considered effective unless and until either the Change Order or an amended Ordering Document is executed by both parties. If no Change Order or amended Ordering Document is executed, each party will continue performing under the unchanged Ordering Document. Neither party will unreasonably withhold consent to a Change Order or Ordering Document. Customer will be responsible for the costs associated with changes made pursuant to any Change Order and/or amended Ordering Document.
3. The Platform.
3.1. Platform Description. Lilt is also the owner and operator of an artificial intelligence tool and online, hosted service that assists customers with translating documents and other information (the “Platform”). If stated on an Ordering Document, Customer and its authorized employees and contractors working for the benefit of Customer (“Users”) will use the Platform to provide the Customer Materials to Lilt and receive the Deliverables from Lilt.
3.2. Support. Lilt will use commercially reasonable efforts to provide basic technical support for the Platform (“Support Services”).
3.3. Use Restrictions. Customer agrees that it will not and will not allow third parties or Users of the Platform to directly or indirectly use the Platform to: (i) harass, threaten, impersonate or intimidate anyone; (ii) upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, violate another’s privacy rights, hateful, or racially, ethnically or otherwise objectionable, or makes unauthorized disclosure of confidential or proprietary information or trade secrets; (iii) infringe, violate or misappropriate the intellectual property, publicity, privacy or other rights of any third party; (iv) violate any applicable law, rule or regulation; (v) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “affiliate links” or any other form of solicitation; (vi) transmit any worms or viruses or any code of a destructive nature; (vii) interfere with or damage the Platform, including without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (viii) bypass Lilt’s robot exclusion headers, interfere with the working of the Platform, or impose an unreasonable load on Lilt’s infrastructure; or (ix) claim or suggest an affiliation, sponsorship or endorsement on the part of Lilt. In addition, Customer agrees that it will not and will not allow third parties or Users of the Platform to directly or indirectly (a) modify, translate, copy or create derivative works based on the Platform, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Platform, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or Lilt-branding contained in or on the Platform, (e) test, evaluate, or otherwise use the Platform with any products competitive with the products of Lilt; (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Platform, or (g) use or access the Platform to build or support and/or assist a third party in building or supporting products or services competitive to the Platform.
3.4. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation, and Ordering Documents, (b) be responsible for the accuracy, quality and legality of Customer Materials, including the means by which Customer acquired Customer Materials, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform, and notify Lilt promptly of any such unauthorized access or use, and (d) be responsible for the security and confidentiality of User’s passwords and login information in its possession. Any use of the Platform in breach of the foregoing by Customer or Users that in Lilt’s judgment threatens the security, integrity or availability of Lilt’s Services, may result in Lilt’s immediate suspension of provision of the Services and access to the Platform, however Lilt will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.5. Removal of Customer Materials. If Customer or Lilt receives notice that Customer Materials must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the “Use Restrictions” section above, Customer will promptly do so. If Customer does not take such action, Lilt may remove the applicable Customer Materials until the potential violation is resolved. If requested by Lilt, Customer will confirm such deletion and discontinuance of use in writing and Lilt will be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as required.
3.6. Ownership of the Service. Lilt owns all right, title, and interest in and to the Platform, and all updates, upgrades, bug fixes, changes, patches, or other modifications to the foregoing or derivative works of the foregoing including all related intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth herein. For the avoidance of doubt, Customer has no right to receive a copy of the software underlying the Service.
3.7. User Information. In order to use the Platform, Customer and its Users are required to provide User Information and other information in order to access the Platform. Customer grants Lilt and its subcontractors the right to store, process and retrieve the information associated with Customer’s account, such as username, and password and any personally identifiable information including, without limitation, Users’ names and email address the User’s occupation, and the industry in which the User works (“User Information”), provided to Lilt in connection with Customer’s use of the Platform. Customer represents and warrants that it has obtained express written consent from its Users to transfer User Information to Lilt and to process the User Information as contemplated by the Users’ use of the Platform. Customer (on behalf of its Users) grants Lilt the right to access, use, process, copy, distribute, perform, export and display User Information, only as reasonably necessary (a) to provide the Services and Platform to Customer (including the transfer of User Information to us); (b) to prevent or address Platform, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer.
3.8. Platform Data. As Lilt operates the Platform, Lilt collects data pertaining to the performance of the Platform and measures of the operation of the Platform (“Platform Data”). Notwithstanding anything else to the contrary herein and provided that no personal identifying information of Customer is disclosed to any third party, the parties agree that Lilt is free to use the Platform Data to improve its Platform and Services. Lilt owns all right, title, and interest in and to such Platform Data. For clarity, this section does not give Lilt the right to identify Customer as the source of any Platform Data.
3.9. Beta Products. Lilt may occasionally make new services or new features of its existing Platform available to Customer for evaluation and testing (each, a “Beta Product(s)”). Beta Products will only be made available to Customers that agree to test such products either in writing (email acceptable) or through the Platform. For the avoidance of doubt, whether Customer chooses to use the Beta Products is completely within Customer’s control. If Customer chooses to use a Beta Product, Customer understands and agree that Beta Products are made available on an “AS IS,” and “AS AVAILABLE” basis and, to the extent permitted by applicable laws, are without any warranties, indemnities, or support commitments of any kind.
4. Payment Obligations.
4.1. Fees. Customer will pay the applicable fees stated on an Ordering Document (“Fees”). Unless otherwise stated in an Ordering Document, all Fees will be paid in U.S. dollars. Payment obligations are non-cancelable and, except as expressly stated in this Agreement, non-refundable. Lilt may modify its Fees or introduce new fees in Lilt’s sole discretion; however, any new or revised Fees will only become effective upon the renewal of a Subscription Period or Order Form (“Renewal Period”). In the event Customer is on a fixed term Order Form and continues to use the Services or Platform without executing an Order Form for a Renewal Period, Lilt may, at its sole discretion, (i) discontinue the Services and/or access to the Platform and invoice Customer for all Fees owed as of such date; or (ii) continue the Services and/or access to the Platform and invoice Customer pursuant to the Fees under the expired Order Form until such time as an Order Form for the Renewal Period is executed or such other time as determined by Lilt; provided that Customer negotiate an Order Form for the Renewal Period in good faith and provided that upon execution of an Order Form for the Renewal Period, Lilt will invoice Customer a true-up invoice for the difference between the Fees in the Order Form for the Renewal Period and the Fees in the expired Order Form.
4.2. Payment. Lilt will invoice Customer for the Fees and any other applicable fees (e.g., bank transfer fees) in accordance with the applicable Ordering Document. Unless otherwise stated on the Ordering Document, Customer agrees to pay all invoices submitted in accordance with this Agreement upon receipt of such invoice. All information that Customer provides in connection with any purchase, transaction, or monetary exchange must be accurate, complete, and current. If Customer has executed an Ordering Document with a Reseller, Customer will pay such Reseller (and not Lilt) in accordance with the terms of such Ordering Document. Notwithstanding the foregoing, Customer understands and agrees that if Customer does not pay the Reseller in accordance with the applicable Ordering Document, Lilt will have the right to stop providing the Services and suspend Customer’s right to use and access the Platform and to terminate this Agreement upon notice to Customer.
4.3. Taxes. Fees stated on the Ordering Document are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on Lilt’s net income.
4.4. Failure to Pay. If Customer fails to pay any invoices in accordance with the “Payment Obligations” section, and provided that Lilt gives Customer notice of such non-payment and ten (10) days (from the date of such notice) to remit the overdue amounts in full Lilt may: (a) suspend Customer’s access to the Platform or cease providing the Services pending payment of such overdue invoices, and (b) charge a finance charge on such overdue amounts at the rate of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, along with any related compensation costs.
4.5. Payment Disputes. If Customer believes that Lilt has billed Customer incorrectly, Customer must contact Lilt prior to the invoice due date in order to receive an adjustment or credit. Lilt will not exercise its rights under the “Failure to Pay” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.6. Expenses. If Lilt will incur costs and expenses related to its performance of the Services, such costs and expenses will be stated on the applicable Ordering Document. Lilt will invoice Customer for such costs and expenses as stated on the applicable Ordering Document, or, if no invoice schedule is specified, Lilt may invoice Customer as such costs and expenses are incurred, on a monthly basis in arrears, or as otherwise reasonably determined by Lilt. Lilt’s invoices for costs and expenses owed by Customer will be paid by Customer in accordance with the “Payment Obligations” section above. All expenses will be charged on a pass-through basis.
5. Data Processing. Lilt will process any User Information and Customer Materials that Customer provides to Lilt in accordance with Lilt’s data processing addendum, as attached hereto as Exhibit A (“Data Processing Agreement”). If there is a conflict between this Agreement and the Data Processing Addendum, the Data Processing Addendum will prevail as to such conflict only.
6.1. Definition. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (hereinafter referred to as the “Confidential Information” of the Disclosing Party). Lilt’s Confidential Information includes non-public information regarding features, functionality and performance of the Services and Platform. Customer’s Confidential Information includes the User Information and Customer Materials. This Agreement and the information in all Ordering Documents will be deemed the Confidential Information of both parties. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
6.2. Protection and Use of Confidential Information. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) make diligent efforts to limit access to the Confidential Information to those employees, affiliates, Subprocessors (as described in the Data Processing Agreement referenced above), agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement; (c) except as expressly set forth herein, will make diligent efforts not to disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under this Agreement. Nothing above will prevent either party from sharing Confidential Information with prospective investors or acquirors; provided, however, that the foregoing are bound to standard confidentiality obligations.
6.3. Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure.
6.4. Feedback. Customer may from time-to-time provide suggestions, comments, or other feedback with respect to the Services or Platform (“Feedback”). For the avoidance of doubt, Feedback will only refer to suggestions, comments or other feedback provided to Lilt specifically regarding the Services or Platform and will not include any User Information. Lilt may want to incorporate Feedback into Services or Platform and this clause provides Lilt with the necessary license to do so. Customer hereby grants Lilt a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicensable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback, without obligation or restriction, except that Lilt will not identify Customer as the provider of such Feedback.
7. Warranties and Disclaimers.
7.1. Lilt’s Warranties. Lilt represents and warrants that (i) it will comply with all applicable national and local laws and regulations of Ireland with respect to its business operations under this Agreement and all applicable laws of Ireland and the European Union with respect to its processing and use of User Information; (ii) it will provide the Services and Support Services in a professional and workmanlike manner, and (iii) the Platform will perform, in all material respects, in accordance with any technical documentation Lilt generally publishes to its customers regarding its Platform (“Documentation”). If the Services or Platform are not provided in accordance with the above warranty, Customer will promptly notify Lilt and Lilt will use commercially reasonable efforts to rectify such non-compliance; if Lilt is not able to re-perform the Services or fix the Platform to comply with the foregoing warranty within a reasonable period, Lilt will terminate this Agreement and provide Customer with a pro-rata refund of any unused pre-paid Fees. The foregoing remedy is Customer’s sole remedy and Lilt’ sole liability if Lilt breaches subsections (ii) or (iii) of this “Lilt’s Warranties” section.
7.2. Mutual warranties. Each party represents and warrants that it has validly entered into this Agreement and has the legal power to do so.
7.3. Customer Warranties. Customer represents and warrants that (i) it has obtained all rights as may be required (by law or otherwise) to transfer, post, submit, and use any Customer Materials or User Information as contemplated by this Agreement; and (ii) the Customer Information and Lilt’s use of it as contemplated by this Agreement and the Services will not violate any law or infringe any third-party’s rights, including but not limited to any intellectual property or privacy rights.
7.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR ABOVE, THE SERVICES, PLATFORM AND ANY OTHER SERVICES PROVIDED BY LILT AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND LILT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT LILT DOES NOT WARRANT THAT THE PLATFORM OR ACCESS THERETO WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES; THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.1. Lilt’s Indemnification. Lilt will defend Customer and its affiliates and its and their Users, officers, directors, and employees against any third party claim or action brought against Customer or its affiliates to the extent based on (i) the allegation that the Platform infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), and (ii) a breach of this Agreement caused by (a) an act or omission implying either a failure to pay due regard to serious consequences, which a conscientious party would normally foresee as likely to ensue, or a deliberate disregard of the consequences of such an act or omission (“Gross Negligence”) (b) fraud, or willful misconduct of Lilt, and Lilt agrees to pay any settlements with respect to the foregoing obligations that Lilt agrees to in a writing signed by Lilt’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to (a) the Platform or portions or components of the Platform that are not provided by Lilt, (b) the Platform or portions or components of the Platform that are combined with other products, processes or materials that are not reasonably contemplated by Lilt or the Documentation, (d) use by the Customer of the Platform after Lilt has either provided a non-infringing application or provided an update to the Platform to make it non-infringing, (c) use of the Platform by Customer that is not in accordance with this Agreement or the Documentation.
8.2. Customer’s Indemnification. Customer will defend Lilt and its officers, directors, and employees against any third party claim or action brought against Lilt to the extent based on (a) the allegation that the Customer Materials infringe such third party’s intellectual property rights or any applicable law, rule, regulation, or third-party right, including without limitation any right of privacy, or (b) Customer’s breach of this Agreement caused by Customer or any User’s Gross Negligence, fraud, or willful misconduct, and Customer agrees to pay any settlements with respect to the foregoing obligations that Customer agrees to in a writing signed by Customer’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction.
8.3. Procedures. Each party’s obligations under this “Indemnification” section are conditioned on the party seeking to have a claim defended and settled (“Indemnified Party”) by the other party (“Indemnifying Party”) (a) providing the Indemnifying Party with prompt written notice of any claim, (b) granting the Indemnifying Party sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to the Indemnifying Party in the defense or settlement of the claim at the Indemnifying Party’s expense. Notwithstanding anything else to the contrary in this Agreement, a party's respective obligations under the “Lilt Indemnification” and “Customer Indemnification” sections above are limited to the Indemnifying Party’s payment for the cost of defense of the third party claim incurred by the Indemnifying Party and the payment of (i) any settlements agreed to by the Indemnifying Party in a writing signed by an officer of the Indemnifying Party, or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction.
8.4. Options. If Customer’s use of the Platform has become, or in Lilt’s opinion is likely to become, the subject of any claim of infringement, Lilt may at its option and expense, (a) procure for Customer the right to continue using and receiving the Platform as set forth hereunder, (b) modify the Platform to make it non-infringing, (c) substitute a non-infringing application for the Platform that is functionally substantially the same, or (d) if Lilt, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement and refund Customer a pro-rata refund of any pre-paid, unused Fees for the remainder of the then-current Subscription Period.
8.5. Sole Remedy. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS “INDEMNIFICATION” SECTION STATES LILT’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
9. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR (I) CUSTOMER’S BREACH OF THE “Use Restrictions” OR “Customer Responsibilities” SECTIONS, OR (II) EITHER PARTY’S OBLIGATIONS UNDER THE “Indemnification” SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE PLATFORM, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, OR (C) ANY DAMAGES THAT IN THE AGGREGATE EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES OR PLATFORM THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. Term and Termination.
10.1. Term and Renewal. This Agreement will become effective on the start date of the Ordering Document and remain in effect until the expiration of the Ordering Document including any Subscription Periods and Renewal Periods or if otherwise terminated in accordance with this Section. The termination of this Agreement shall not affect any Ordering Documents then in effect, which shall continue to be governed by the terms and conditions of this Agreement until the termination or expiration of such Ordering Document.
10.2. Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides written notice of such breach.
10.3. Effect of Termination. If Customer terminates this Agreement as a result of Lilt’s uncured material breach as provided for above, Lilt will provide Customer with pro-rata refund any unused, prepaid Fees for the remainder of the then-current Ordering Document term. Without prejudice to any other right or remedy available to Lilt, upon any termination for cause by Lilt, Customer will pay any unpaid Fees covering the remainder of the then-current Ordering Document term after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Lilt for the period prior to the effective date of termination. Upon any termination of this Agreement, Customer will have thirty (30) days to access the Platform for the sole purpose of downloading or exporting the Customer Materials. Following such thirty (30) day period, all rights and licenses granted by Lilt hereunder will immediately terminate; Customer will no longer have the right to access or use the Platform and Lilt will cease providing the Services. Except as otherwise permitted under the “Customer Materials” section above, within ninety (90) days of any termination or expiration of this Agreement, Lilt will delete Customer’s User Information and Customer Materials.
10.4. Survival. The following sections will survive any termination or expiration of this Agreement: “Platform Data”, “Payment Obligations”, “Confidentiality”, “Disclaimer”, “Indemnification”, “Limitation of Liability”, “Term and Termination”, “Ownership”, and “General Terms”.
11.1. Customer’s Ownership. Upon payment in full of all of Lilt’s invoices for the Services, Customer will own all right, title and interest in and to the Deliverables. Customer also owns all right, title and interest in and to the Customer Materials and User Information.
11.2. Lilt’s Ownership. Lilt owns and will be free to use and employ, and does not assign, any skills, know-how, methods, concepts, or techniques of a general nature, whether or not acquired, gained or learned during the performance of the Services performed under this Agreement, or from performing similar work for, or providing similar capabilities or products to others. “Skills, know-how, methods, concepts, or techniques of a general nature” will include, without limitation, information that could reasonably have been acquired in similar work performed for another.
11.3. Lilt Personnel. Lilt will be responsible for the professional quality, technical accuracy and timely completion of Services furnished under each Order, including the manner and means in which such Services are rendered. Lilt will determine, and be solely responsible for, all matters governing the terms and conditions of engagement of Lilt employee(s), subcontractor(s), and any other person(s) hired, retained or employed by Lilt (collectively "Lilt Personnel"). Such matters include, but are not limited to, hours, wages, working conditions, discipline, hiring and discharging, and any other terms of employment or requirements of law. Lilt will have full and exclusive direction, supervision and control of the Lilt Personnel. Lilt has sole authority to discipline and discharge Lilt Personnel.
12. General Terms.
12.1. Publicity. Customer agrees that Lilt may identify Customer and use and display Customer’s name, logo, trademarks, or Service marks on Lilt’s website and in Lilt’s marketing materials. Customer and Lilt may also confer and agree to release one or more press releases, announcing Customer, why Customer chose Lilt, and how Customer will use Lilt. Customer will consider participating in a case study, webinar, and other joint marketing activities six to nine months post deployment.
12.2. Export Compliance. The Platform may be subject to export laws and regulations of the United States and other jurisdictions. Lilt and Customer each represent that it is not named on any denied-party list of the United States or other countries. Customer will not and will not permit any User to (a) access or use any Platform in any embargoed country or region or (b) access or use the Platform in violation of any export law or regulation, (c) submit to the Platform any information that is controlled under the U.S. International Traffic in Arms Regulations, and (d) use or transfer the Platform in connection with any nuclear, chemical or biological weapons, missile technology, or military end-uses. Customer will be fully liable for any fines or penalties arising out of Customer’s breach of the foregoing.
12.3. Force Majeure. Except for Customer’s payment obligations hereunder, neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-Service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, pandemics, riots, fires, acts of God, war, terrorism, and governmental action.
12.4. Changes. Customer acknowledges that the Platform is an on-line, subscription-based product, and that in order to provide improved customer experience Lilt may make changes to the Platform provided. Certain policies referenced herein may be modified from time to time upon reasonable notice to Customer to reflect process improvements or changing practices; however, Lilt agrees any such modifications will not materially decrease Lilt’s obligations or materially reduce Customer’s rights as compared to those reflected in such terms as of the Subscription Start Date of the first Ordering Document entered into by the parties.
12.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
12.6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
12.7. Email Communications. Notices under this Agreement will be provided as follows: (a) all notices regarding the Services will be sent by email, although Lilt may instead choose to provide notice to Customer through the Platform, (b) notices to Lilt must be sent to email@example.com and firstname.lastname@example.org, and (c) all notices to Customer will be sent to the email(s) provided through the Platform. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Platform.
12.8. Amendment and Waivers. No modification or amendment to this Agreement will be effective unless made in writing and signed by an authorized representative of both parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
12.9. Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
12.10. Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Lilt may assign this Agreement in its entirety (including all Ordering Documents), without the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Lilt’s assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.11. Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of Ireland. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The parties irrevocably agree that the courts of Ireland will have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual in nature) arising out of or in connection with this Agreement or its subject matter or formation, interpretation or enforcement.
12.12. EntireAgreement. This Agreement, including all referenced pages and Ordering Documents, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Users. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the terms of any Ordering Document, (2) this Agreement and (3) except as expressly stated herein, any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Ordering Documents) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
EXHIBIT A – DATA PROCESSING AGREEMENT (“DPA”)
1.1. All capitalized terms that are not expressly defined in this DPA will have the meanings given to them in the main body of the Agreement.
1.2 In this DPA the following words will have the following meanings:
“Customer Personal Data” means Personal Data Processed by Lilt on behalf of the Customer in connection with the Agreement.
“Data Protection Laws” means (i) the General Data Protection Regulation (EU) 2016/679 (the “GDPR”); (ii) the Data Protection Acts 1988 to 2018, and any other legislation which implements the GDPR; (iii) the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011; (iv) any other legislation which implements the European Community’s Directive 2002/58/EC; (v) any binding guidance and / or codes of practice issued by the Irish Data Protection Commission or the European Data Protection Board; and (vi) to the extent relevant, the retained European Union law version of the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland (“UK GDPR”);
“Data Subject” means the identified or identifiable natural person to whom Customer Personal Data relates.
“Personal Data” shall have the meaning assigned to the terms “personal data” and / or “personal information” under the GDPR, in respect of any application of the GDPR to that personal data, and under Data Protection Laws in respect of all other Data Protection Laws.
“Process” or “Processing” means any operation or set of operations which is performed on data or sets of data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction and for the avoidance of doubt includes all processing as defined in the GDPR.
“Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data attributable to Lilt and for the avoidance of doubt includes all personal data breaches as defined in the GDPR.
“Services” means any and all services or obligations that Lilt performs under the Agreement.
“Sub-Processor” means any third-party data Processor engaged by Lilt or by other companies in Lilt’s group of companies to Process Customer Personal Data.
Each of the Parties’ shall comply with Data Protection Laws concerning the Processing of Customer Personal Data, in performing its obligations and exercising its rights under the Agreement.
1.3 If and to the extent language in this DPA or any of its Exhibits conflicts with the Agreement, this DPA shall prevail.
1.4 The Customer Personal Data, the duration of Processing and the specific uses of the Customer Personal Data are detailed in Appendix 1 attached hereto.
2. Processing of Personal Data
2.1 Lilt shall act as a Processor in respect of the Customer Personal Data and shall only Process the Customer Personal Data in accordance with the documented instructions of the Customer and the Data Protection Laws.
2.2 Lilt shall only Process Customer Personal Data in order to perform its obligations pursuant to the Agreement.
2.3 Lilt shall immediately inform the Customer if any instruction it receives from the Customer breaches the GDPR, UK GDPR or other applicable European Union or Member State Law.
2.4 The Customer shall ensure its Processing instructions are lawful and that the Processing of Customer Personal Data in accordance with its instructions will not breach Data Protection Laws.
2.5 The Parties agree that the Agreement (including this DPA) sets out the Customer’s complete instructions to Lilt for the Processing of Customer Personal Data, and any Processing outside the scope of these instructions will require prior written agreement between Lilt and the Customer.
2.6 Lilt shall ensure that any persons authorised to Process the Customer Personal Data by it (including its employees, contractors, agents and subcontractors) are contractually obliged to keep the Customer Personal Data a secure and confidential to the standards required by the Data Protection Laws, and in compliance with the Agreement.
2.7 Lilt shall provide reasonable assistance to the Customer in order to enable the Customer to meet its obligations under Data Protection Laws to implement appropriate technical and organisational security measures, to notify supervisory authorities and / or Data Subjects about Security Incidents; and to conduct data protection impact assessments and prior consultation with supervisory authorities.
2.8 Lilt shall provide reasonable assistance to the Customer in order to enable the Customer to:
2.8.1 meet its obligations under Data Protection Laws to implement appropriate technical and organisational security measures:
2.8.2 respond to requests by Data Subjects to exercise their rights under Data Protection Laws;
2.8.3 notify supervisory authorities and / or Data Subjects about Security Incidents; and
2.8.4 to conduct data protection impact assessments and prior consultation with supervisory authorities.
Lilt shall implement and maintain appropriate technical and organisational security measures to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of Customer Personal Data.
4.1 The Customer specifically authorises Lilt to engage Sub-Processors and Lilt shall: (i) enter into a written agreement with each Sub-Processor imposing data protection obligations no less protective of Customer Personal Data as Lilt’s obligations in this DPA to the extent applicable to the nature of the services provided by such Sub-Processor; and (ii) remain liable for each Sub-Processor’s compliance with the obligations in this DPA as if they were Lilt's.
4.2 Lilt will provide the Customer with at least thirty (30) days' prior written notice of any intended changes concerning the addition or replacement of Sub-Processors, thereby giving the Customer the opportunity to object to such changes within ten (10) days. A list of Lilt's Sub-Processors can be found here, which may be updated from time to time in accordance with this paragraph 4.2.
5. Data Subject Rights
To the extent legally permitted, Lilt shall promptly notify (and provide reasonable assistance to) the Customer if Lilt receives a request from a Data Subject that identifies the Customer and seeks to exercise the Data Subject’s right to access, rectify, erase, transfer or port Customer Personal Data, or to restrict the Processing of Customer Personal Data.
6. Security Incidents
6.1. If Lilt becomes aware of a Security Incident, Lilt shall notify the Customer without undue delay.
6.2. Lilt shall provide to the Customer timely information about the Security Incident, including, but not limited to, the nature and consequences of the Security Incident, the measures taken and / or proposed by Lilt to mitigate or contain the Security Incident, the status of Lilt’s investigation, a contact point from which additional information may be obtained, and the categories and approximate number of data records concerned.
7. Data Transfers
The Customer authorises Lilt and its Sub-Processors to transfer Customer Personal Data across international borders, including from the European Economic Area (the “EEA”) to the United States. To the extent that Lilt transfers personal data from the EEA to a third country in order to provide the Services, Lilt shall do so only in compliance with the Data Protection Laws.
8. Deletion or Return of Personal Data
Lilt shall, at Customer’s direction and cost, delete or return all Customer Personal Data to Customer at the end of the provision of the applicable Services to which the Processing relates, and delete all existing copies held by Lilt (unless applicable law requires the storage of such Customer Personal Data by Lilt) and provide confirmation in writing to the Customer that it has complied with any such request of Customer, if the Customer has requested that Lilt provide such confirmation in writing. To the extent that applicable law requires Lilt to store Customer Personal Data, Lilt will notify the Customer in writing of that fact and of the law that applies to such storage, to the extent legally permitted.
9. Audit Rights
9.1 Upon written request Lilt shall provide the Customer, or its appropriately qualified third-party representative (collectively, the "Auditor"), access to reasonably requested documentation evidencing Lilt’s compliance with its obligations under this Agreement.
9.2 The Customer may also send a written request for an audit (including inspection) of Lilt’s facilities. Following receipt by Lilt of such request, Lilt and the Customer shall mutually agree in advance on the details of the audit, including reasonable start date, scope and duration of, and security and confidentiality controls applicable to, any such audit. Lilt may charge a fee (rates shall be reasonable, taking into account the resources expended by Lilt) for any such audit.
9.3 Where the Auditor is a third-party, the Auditor may be required to execute a separate confidentiality agreement with Lilt prior to any audit of Lilt, and Lilt may object in writing to such Auditor, if in Lilt's reasonable opinion, the Auditor is not suitably qualified or is a direct competitor of Lilt. Any such objection by Lilt will require the Customer to either appoint another Auditor or conduct the audit itself. Expenses incurred by Auditor in connection with any review of Reports or an audit, shall be borne exclusively by the Auditor.
Subject Matter of Processing - The subject matter of Processing is the Services pursuant to the Agreement.
Duration of Processing - The Processing will continue until the expiration or termination of the Agreement or the end of the provision of the applicable Services to which the Processing relates, whichever is earlier.
Categories of Data Subjects - Includes the following:
Prospects, customers, business partners and vendors of the Customer (who are natural persons)
Employees or contact persons of the Customer’s prospects, customers, business partners and vendors
Employees, agents, advisors, freelancers of the Customer (who are natural persons)
Nature and Purpose of Processing - Includes the following:
The purpose of Processing of Customer Personal Data by Lilt is the performance of the Services pursuant to the Agreement.
Types of Personal Information - Includes the following:
Identification data (notably name, email addresses and phone numbers)
Electronic identification data (notably IP addresses)
Personal data included in documentation for translation.
Competent Supervisory Authority - Data Protection Commission of Ireland