This Subscription and Services Agreement, including any Orders and Statements of Work (“Agreement”), governs Customer’s use of LakeTech Services. This Agreement is between the applicable LakeTech contracting entity and the customer contracting entity identified on the Order or SOW (“Customer”). LakeTech and Customer may also be referred to individually as a “Party” or together as the “Parties.”
The “Effective Date” is the date Customer accepts the terms of this Agreement by executing an Order or SOW that references this Agreement.
1. Provision of Services
Access to Subscription Services: Subject to Customer’s compliance with this Agreement, including timely payment of applicable Fees, LakeTech shall make the Subscription Services available to Customer during the Subscription Term for Customer’s internal business use in accordance with the Usage Metrics purchased.
Evolving LakeTech Technology: LakeTech may issue Updates for the Services during the Subscription Term.
Protection of Customer Data: LakeTech shall maintain administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data as required by law. Customer shall only provide LakeTech the minimum personal data necessary to use the Services under this Agreement.
Beta Services: LakeTech may invite Customer to participate in pre-release or beta programs (“Beta Services”). Beta Services are provided “as is,” without warranty or indemnity, are not considered Services under this Agreement, and are not supported.
2. Use of Services
Customer’s Responsibilities: Only Authorized Users are permitted to access and use the Services. Customer is solely responsible for Authorized Users’ compliance with this Agreement, the accuracy of Customer Data, maintaining the confidentiality of login credentials, all activity under Authorized Users’ accounts, and ensuring Authorized Users use the Services only in accordance with the Documentation.
Restrictions: Customer shall not, and shall not permit others to, make the Services available to unauthorized third parties, resell or sublicense the Services, use the Services to store or transmit unlawful or harmful material, interfere with or disrupt the Services, circumvent Usage Metrics, reverse engineer the software, use the Services to develop a competitive product, or otherwise use the Services in violation of applicable law.
Affiliates: Customer may designate its Affiliates as Authorized Users, and Affiliates may purchase Services under separate Orders with their own Usage Metrics.
3. Third-Party Applications
Products or services developed by third parties may be available to Customer for use with the Services (“Third-Party Applications”). By using Third-Party Applications, Customer permits LakeTech to grant their providers access to Customer Data as required for use and support of those applications. Third-Party Applications are not Services under this Agreement and may be subject to the provider’s own terms and fees. LakeTech is not responsible for the use or protection of Customer Data within any Third-Party Application.
4. Fees and Payment
Fees: Customer shall pay LakeTech all fees set forth in the applicable Order or SOW, as well as any Overages. All payment obligations are non-cancelable and Fees paid are non-refundable, except as set forth in this Agreement.
Payment Terms: Unless otherwise set forth in the applicable Order, Fees are billed annually in advance. Interest on unpaid amounts accrues from the invoice due date at the higher of 1.5% per month or the highest rate allowed by law. If Customer fails to pay an undisputed past-due invoice within ten (10) business days of notice, LakeTech may suspend the Services until amounts are paid in full.
Taxes: Fees do not include applicable taxes, tariffs, or similar governmental charges. Customer is responsible for paying all such Taxes unless it provides a valid tax-exemption certificate.
Usage Verification: No more than once annually, LakeTech may request records substantiating Customer’s Usage Metrics. Usage exceeding the purchased Usage Metrics will be invoiced as Overages at LakeTech’s standard rates.
Purchases Through a Reseller: If Customer purchases Services through a Reseller, pricing and payment terms are between Customer and the Reseller, and LakeTech is not liable for any liabilities arising from the Reseller relationship.
5. Proprietary Rights and Licenses
Ownership: All LakeTech Intellectual Property Rights, including rights in the Services, Beta Services, Documentation, and Statistical Usage Data, remain owned exclusively by LakeTech and its Affiliates. No license or other rights beyond those expressly granted in this Agreement are conveyed to Customer.
Use of LakeTech Logos: Use of LakeTech’s logos, trademarks, and trade names is not permitted unless expressly authorized.
Customer Data: Customer Data and Customer’s Confidential Information remain owned exclusively by Customer. Customer grants LakeTech a worldwide right and license to access, host, display, process, analyze, transmit, reproduce, and otherwise utilize Customer Data for the purpose of providing and improving the Services.
Statistical Usage Data: LakeTech may collect, use, and process Statistical Usage Data for its own analysis, analytics, marketing, and internal business purposes, and will only disclose it if aggregated or anonymized and not attributable to Customer.
5A. Confidentiality and Non-Solicitation Commitments
LakeTech shall not share, disclose, or otherwise make accessible any sensitive information related to Customer’s work history, product usage history, pricing details, or other confidential data with any competitor or third party, except as strictly required to provide the Services or under a lawful order, and shall not use such sensitive information for direct profit-making activities outside the scope of this Agreement.
LakeTech agrees not to solicit, engage, or attempt to engage in business activity with any of Customer’s clients identified through the course of this Agreement, without Customer’s express written consent (a commitment that continues for a period following termination of this Agreement) and will not undertake activity intended to divert business away from Customer.
These restrictions do not apply where a client of Customer directly and independently contacts LakeTech without solicitation (which LakeTech will promptly disclose to Customer), or where LakeTech responds to a public request for proposal in a manner consistent with standard industry practice and without use of Customer’s confidential information.
6. Confidentiality
Each Party’s Confidential Information (including, for Customer, Customer Data, and for LakeTech, the Services, pricing, and Beta Services) will be protected by the Receiving Party using the same degree of care it uses for its own confidential information of like kind, used only for purposes consistent with this Agreement, and disclosed only to employees, contractors, and Affiliates who need access and have agreed to confidentiality obligations no less restrictive than those in this Agreement.
The Receiving Party may disclose Confidential Information where compelled by law, provided it gives the Disclosing Party prior notice and reasonable assistance if the Disclosing Party wishes to contest the disclosure.
7. Representations, Warranties, and Disclaimers
LakeTech warrants that the Subscription Services will perform materially in accordance with the Documentation, that it will not materially reduce core functionality during the current Subscription Term, that it will use industry-standard measures to deliver the Services free of Harmful Code, and that it will perform Professional Services diligently and professionally. Customer’s exclusive remedy for breach of these warranties is, at LakeTech’s option, correction of the deficient Service, provision of comparable functionality, or termination of the deficient Service with a pro-rated refund.
Except as expressly provided, neither Party makes any other warranty of any kind and each disclaims all implied warranties, including merchantability, fitness for a particular purpose, and non-infringement, to the maximum extent permitted by law. LakeTech does not warrant that the Services will be error-free or uninterrupted, or that its security measures will prevent all unauthorized access to Customer Data.
8. Indemnification
LakeTech shall defend Customer against a third-party claim alleging that Customer’s authorized use of the Subscription Services infringes a valid patent, copyright, or registered trademark, or misappropriates a trade secret, and shall pay damages finally awarded or agreed to in settlement, subject to certain exclusions (such as modifications not made by LakeTech, or use in combination with non-LakeTech products).
Customer shall defend LakeTech against a third-party claim relating to Customer Data or Third-Party Applications built by or on behalf of Customer, and shall pay damages finally awarded or agreed to in settlement.
Each Party’s indemnification obligations are conditioned on prompt notice, sole control over the defense, and reasonable cooperation from the indemnified Party.
9. Limitation of Liability
Neither Party will be liable for any loss of profits, revenue, goodwill, anticipated savings, or use, or for any indirect, special, incidental, exemplary, punitive, or consequential damages, however caused, even if advised of the possibility of such damages.
Each Party’s aggregate liability for damages arising out of this Agreement will not exceed the Fees paid or payable to LakeTech in the twelve (12) months preceding the event giving rise to the liability, except with respect to Customer’s payment obligations, breaches of use restrictions, indemnification obligations, gross negligence, willful misconduct, fraud, or on-site negligence resulting in death or personal injury.
10. Term and Termination
This Agreement begins on the Effective Date and continues until terminated. If there are no active Orders, this Agreement automatically terminates after ninety (90) days. A Subscription Term automatically renews for one (1) year unless either Party gives notice of non-renewal at least ten (10) days before the end of the then-current term.
LakeTech may suspend Customer’s access in the event of a breach of this Agreement, including non-payment, using good-faith efforts to notify Customer beforehand where circumstances allow.
Either Party may terminate this Agreement or an Order for the other Party’s uncured material breach following thirty (30) days’ notice, or immediately if the breach cannot be cured or if the other Party becomes subject to bankruptcy or insolvency proceedings not dismissed within forty-five (45) days.
Upon termination, all outstanding Orders and access to the Subscription Services terminate, all outstanding payment obligations become immediately due, and for thirty (30) days following expiration LakeTech will provide Customer read-only access to retrieve Customer Data. After thirty (30) days, LakeTech has no obligation to retain Customer Data.
If Customer terminates due to LakeTech’s material breach, LakeTech will refund the prorated portion of prepaid Fees for unused Services. If LakeTech terminates due to Customer’s material breach, Customer must pay any unpaid Fees.
11. General Provisions
Publicity: Customer grants LakeTech the right to use Customer’s company name and logo as a reference for promotional purposes, revocable at any time by written notice to support@laketech.com.
Export Control and Anti-Corruption: Each Party shall comply with applicable export control, sanctions, and anti-corruption laws in connection with the Services.
Governing Law and Venue: The governing law and venue for disputes depend on where Customer is domiciled. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement.
Dispute Resolution: The Parties will attempt in good faith to resolve disputes through negotiation before proceeding to final and binding arbitration administered by the International Centre for Dispute Resolution, conducted on an individual basis. The Parties waive the right to participate in a class, consolidated, or representative action, and the right to a trial by jury.
Notices: Notices to LakeTech must be delivered via email to support@laketech.com or by overnight delivery to LakeTech, Inc., 460 Boulevard Way #9, Oakland, CA 94610.
Force Majeure: Neither Party is liable for delays due to causes beyond its reasonable control, except for payment obligations. Issues relating to COVID-19 are not considered a Force Majeure Event.
Assignment: Neither Party may assign this Agreement without the other’s consent, except to an Affiliate or in connection with a merger, acquisition, or sale of substantially all assets.
Entire Agreement: This Agreement, together with any SOWs, Orders, and linked terms, is the entire agreement between the Parties and supersedes all prior communications regarding its subject matter. In the event of conflict, the order of precedence is: (1) the DPA, (2) the Order, (3) the SOW, (4) this Agreement, and (5) any linked terms.
12. Definitions
- Affiliate: an entity that controls, is controlled by, or is under common control of a Party.
- Authorized User: any individual or agent authorized by Customer to access or use the Services.
- Customer Data: content, data, and other materials submitted by Customer or an Authorized User to the Services.
- Documentation: LakeTech-provided user guides applicable to the Services, as updated from time to time.
- Harmful Code: code, files, or programs intended to do harm, including viruses, worms, and Trojan horses.
- Order: a written or electronic order form identifying the Services, scope, quantity, and charges for a specific transaction.
- Professional Services: implementation, technical, consulting, and training services described in an Order or SOW.
- Statistical Usage Data: usage information related to access or use of the Services, such as visit and activity data.
- Subscription Services: the LakeTech software-as-a-service, and associated Updates, offered on a subscription basis.
- Subscription Term: the period during which Customer is entitled to use the Subscription Services, including renewals.
- Support Services: LakeTech’s customer support for the Subscription Services, as described in the Support Services and SLA terms below.
- Usage Metrics: the metrics used to determine the scope of Customer’s access to the Subscription Services and associated Fees.
Support Services and Service-Level Agreement
This Support Services and SLA Agreement covers the LakeTech Subscription Services defined in the Agreement to which it is attached. Capitalized terms have the meanings set forth in the Agreement unless otherwise defined here.
Scheduled Downtime: LakeTech uses commercially reasonable efforts to limit scheduled maintenance to no more than 6 hours of Scheduled Downtime per calendar month.
Service Availability: LakeTech’s service-level objective for the Subscription Services is 99.9% availability, 24 hours a day, 7 days a week, calculated over a calendar month, excluding Scheduled Downtime and events outside LakeTech’s reasonable control.
Support: Customer and Authorized Users have access to technical support via telephone, online chat, email, or self-paced online tutorials. Support does not include training on the Subscription Services’ features or general computer skills. Only qualified, trained Customer personnel familiar with the Subscription Services are authorized to contact LakeTech for support.
Reporting and Status Updates: Customer should follow applicable troubleshooting procedures before contacting support, then notify LakeTech via its Ticket Tracking System. LakeTech will provide timely status updates, based on the severity and priority of the issue, until a resolution or workaround is established.