LERNA CORE TERMS AND CONDITIONS


Last updated: 04 May 2022

These terms and conditions (the “General Terms”) govern the use of, and the subscription to, the Lerna Core provided by Lerna inc. (“Lerna”). By accessing the Lerna Core or by the Parties accepting the present agreement, you agree to the General Terms on behalf of yourself as a User (“User”) and/or, as the case may be, on behalf of the organisation that you represent (“Customer”) unless such Customer have a superseding agreement with Lerna. If you are accessing the Lerna Core on behalf of the organisation that you represent, you represent and warrant that you have the authority to agree to the General Terms on its behalf. If you do not agree with the terms of the General Terms, do not use or access the Lerna Core.

1. DEFINITIONS AND INTERPRETATION
1.1. The following capitalized terms shall have the meaning ascribed to them below:
(i) “User Data” means any content, which may include Personal Information of Users, that Customer or Users submit or transfer to Lerna in conjunction with the Services;
(ii) “User Personal Information
means any Personal Information contained within User Data;
(iii) “Effective Date
means (i) for a User, the first date a User accessed the Lerna Core; or (ii) for a Customer, the date Customer accepted the General Terms, as the case may be
(iv) “Lerna Core” means the platform commercialized by Lerna as “Lerna Core” and accessed by Users;
(v) “Parties” means (i) Lerna and User or (ii) Lerna and Customer, as the case may be;
(vi) “Personal Information” has the meaning set out in Privacy Laws;
(vii) “Privacy Laws” means all applicable data protection and privacy legislation, regulations and guidance governing the protection of Personal Information;
(viii) “Privacy Policy” means Lerna Privacy Policy available at here;
(ix) “Sensitive Personal Information” has the meaning set out in Privacy Laws, and may include race, ethnicity, national origin, religious affiliation, sexual orientation or physical or mental disability;
(x) “User” means, as the case may be, any user who accesses the Lerna Core; ) or any individual to whom Customer provides access to the Lerna Core;
1.2. The term “including” is not limiting and means “including, without limitation”.

2. ACCESS AND USE OF THE LERNA CORE
2.1. Services. During the Term (as defined in Section 7.1 (Term)), Lerna grants to Customer and its Users the right to access and use the Lerna Core, and any related services, in accordance with the General Terms (the “Services”).
2.2. Services Revisions. Lerna shall offer the Services materially in accordance with the description provided. Lerna may revise the content, features and functions of the Lerna Core at any time without notice. Lerna will provide Customer with prior notice if there is a change to the Lerna Core resulting in overall material decrease or change in the purpose or initial processes of the Lerna Core. If such material decrease occurs, and Customer is materially impacted in its use of the Lerna Core, Customer may terminate its subscription in accordance with Section 8.2e
2.3. Temporary Suspension of the Services. Lerna may limit or suspend the Services from time to time, at its discretion, including to perform upgrades to, and maintenance of, the Lerna Core.
2.4. Unacceptable Use. Customer and Users shall not, and Customer shall ensure that Users do not nor attempt to, nor permit third parties to: (i) share non-public features or content of the Lerna Core with any third party; (ii) copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, enhance, modify, merge, adapt, translate, create any derivative works or otherwise reproduce any part of the Lerna Core (for clarity purposes, Customer and Users shall not access the Lerna Core in order to build a product or service competing with the Services or to build a product using ideas, features, functions or graphics similar to those of the Lerna Core); (iii) send any viruses, worms, time bombs, trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of the Lerna Core; or (v) use the Lerna Core in a manner that overburdens, or that threatens the integrity, performance or availability of the Website or the Lerna Core. Furthermore, the Lerna Core shall not be used to collect, manage or process Sensitive Personal Information and Lerna will have no liability that may result from the Customer’ or the Users' use of the Lerna Core to collect or process Sensitive Personal Information. Customer is responsible to inform Users that their User Data could be submitted on the Lerna Core. In the event that it suspects any breach of this Section, Lerna may suspend Customer’ and Users’ access the Services without advance notice, in addition to such other remedies as Lerna may have. LERNA ASSUMES NO LIABILITY FOR ANY UNACCEPTABLE USE OF THE LERNA CORE.
2.5. Account Security and Access. Customer and Users shall take all reasonable steps to prevent unauthorized access to the Lerna Core, including by protecting their passwords and other login information. Customer is responsible for any activity occurring in its account whether or not Customer authorized that activity. Customer and Users shall immediately notify Lerna if they become aware of any unauthorized access to, or use of, their account.
2.6. User Systems. User is responsible for maintaining and updating any operating systems, Internet browsers, anti-virus software, or other software to access and use the Services. The Services may not work properly if User’s operating systems and anti-virus software are not up-to-date.
2.7. Indemnification by Customer. Customer shall defend, indemnify and hold harmless Lerna and its partners, officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against any judicial, administrative or arbitration action, third party suit, claim, investigation or proceeding, including any interest accrued, arising out of, or related to (i) the content or nature of User Data, including User Data in breach of Section 2.4 (Unacceptable Use); or (ii) the breach of any warranty, covenant or other obligation contained in the General Terms by Customer or its Users; or (iii) Customer’ or User's alleged or actual use, misuse, inappropriate use or failure to use the Services, including in violation of Sections 2.4 (Unacceptable Use). Lerna must provide the Customer with prompt written notice of any such claim, suit or proceeding, and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting the Customer defense and settlement of such matter. The Customer shall not settle or compromise any such claim, suit or proceeding without Lerna’s prior written consent, such consent not to be unreasonably withheld, when (a) it results in liability or admission of any liability by Lerna; (b) the settlement does not include a full release of liability for Lerna; or (c) the settlement includes terms other than a full release of liability for Lerna and the payment of money.
2.8. Compliance with Laws. When providing or using the Services, the Parties shall comply with all applicable laws, including Privacy Laws, in force in any jurisdiction applicable to Customer’s use of the Services. Customer is also responsible to obtain any consent required by the aforementioned laws from its Users to allow Customer to use the Services and to allow Lerna to provide the Services in accordance with the General Terms.
2.9. Compliance by Users. Customer must ensure that its Users comply with all applicable laws, including Privacy Laws in any jurisdiction applicable to Users’ use of the Services, when using or accessing the Lerna Core, and that such Users are governed by, and comply with, the General Terms.

3. SERVICE FEES OF THE LERNA CORE AND BILLING
3.1. Services Fees. In consideration for the Services, Customer shall pay Lerna the fees specified on the Website for the subscription term (whether monthly or annual) selected by Customer, unless other payment terms have been agreed to in writing, for instance in a quote (see Schedule 1), between Customer and Lerna (the “Service Fees”). Customer’ subscription may be renewed upon a three (3) months notice prior to the expiration of a subscription term (the “Renewal Date”) for the same subscription terms as the then expiring subscription term. Unless otherwise agreed in writing by the Parties, the Service Fees applicable to any such renewal shall be at the same conditions (terms and prices) as the current agreement. In event of renewal and in the event a price increases, Lerna shall send the new price list to Customer four (4) months before date of renewal. The Parties agree to meet and negotiate in good faith the new costs of the services. In absence of an agreement by the Parties on a new prices, each party may decide in writing to not renew the subscription at the expiration date.
3.2. No Refunds. Payments are non-refundable and there are no refunds or credits for partially used periods, except for termination by Customer in accordance with Section 8.2(e) and except as otherwise provided in the Quote in appendix 1.
3.3. Free trial. If Customer registers for a free trial for the Services, Lerna will make such Services available to Customer on a trial basis free of charge until the earlier of (i) the end of the free trial period applicable to Customer; (ii) the start date of any subscription purchased by Customer for such Services; or (iii) termination of the trial at any time by Lerna or Customer, in its sole discretion.
3.4. Third Party Payment Processor. Lerna reserves the right to use a third party PCI-DSS compliant payment processor for all billing and receipt of payments hereunder.
3.5. Taxes. Unless otherwise stated, the Service Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes except those assessable against Lerna based on its income. Lerna will invoice Customer for such Taxes if Lerna has a legal obligation to do so, and Customer shall pay such Taxes if so invoiced.

4. DATA
User Data
4.1. User Data. Customer or User represents and warrants that it owns or has obtained all necessary rights, title and interest, and obtained all necessary consents to transfer User Data in relation with the General Terms, and that User Data doesn’t infringe any third party intellectual property right. Customer and User grants Lerna a worldwide, non-exclusive, perpetual and royalty-free right to access, use, process, copy, distribute, perform, export and display User Data, only to the extent permitted by law and as reasonably necessary (i) to provide, maintain and improve the Services; (ii) to prevent or address service, security, support or technical issues; or (iii) to create anonymized and aggregated data non-related to a specific User, which does not constitute User Data and is owned by Lerna, including for use as benchmarking and marketing purposes in accordance with the Privacy Policy or as otherwise expressly permitted in writing by Customer or as required by law. This right continues with respect to anonymized data and any residual backup copies of User Data made in the ordinary course of business even after termination of the General Terms.
4.2. Protection of User Data. Lerna shall store and process User Data in accordance with the Privacy Policy. Lerna has implemented technical, organizational and administrative systems, policies and procedures as well as other measures detailed in the Privacy Policy to help ensure the security, integrity, availability and confidentiality of User Data, and to mitigate the risk of unauthorized access to or use of User Data. Nonetheless, hosting data online involves risks of unauthorized disclosure, loss or exposure and, in accessing and using the Lerna Core, User assumes such risks, except for gross negligence or unlawful conduct of Lerna.
Telemetric Data from the Lerna Core
4.3. Telemetric Data. To the extent permitted by law, telemetric data related to how Users access and use the Lerna Core and other features of their device (including features and functions of the Lerna Core being used by Users, stack trace data and reports related thereto) and the anonymized or aggregated data derived from such telemetric data does not constitute User Data, and is owned by Lerna.
Personal Information
4.4. Personal Information. When using the Services, Customer or User may transfer to Lerna User Data containing Personal Information. Lerna shall collect, access or process any Personal Information in accordance with the Privacy Policy. Customer consents to the transfer, processing and storage of Personal Information in accordance with the General Terms and the Privacy Policy and the Data Processing Addendum, where applicable. Upon termination of the General Terms, at Customer’s request, Lerna shall delete all User Personal Data in accordance with Privacy Laws. If a person ceases to be a User, at Customer’s request Lerna shall delete all User Personal Data related to such person in accordance with Privacy Laws within 10 days of such Customer’s request.
Confidential Information
4.5. Confidential Information. “Confidential Information” means any non-public, confidential or sensitive information, including User Data, disclosed by a Party or on its behalf (the “Disclosing Party”) to the other Party (the “Receiving Party”), and excludes any information that is:
(i) subject to applicable Privacy Laws, publicly available or later becomes publicly available other than through a breach of the General Terms;
(ii) as evidenced by documentary and competent evidence: (a) known to the Receiving Party or its employees, agents or representatives prior to such disclosure or (b) without using the Confidential Information, is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or
(iii) as evidenced by documentary and competent evidence, subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality, provided that such source is not, to the knowledge of the Receiving Party, in breach of its obligations of non-disclosure towards the Disclosing Party.
4.6. Use or Disclosure of Confidential Information. The Receiving Party shall only use or disclose Confidential Information to exercise its rights and fulfill its responsibilities under the General Terms. The Receiving Party shall exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information and in any event, at least diligent and prudent care. The Receiving Party shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information, except that Lerna may disclose Confidential Information to its third party service providers in connection with the performance or the improvement of the Services, in which case Lerna will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of the Confidential Information and preventing unauthorized access. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense. The provisions of this Section shall supersede any prior non-disclosure agreement by and between the Parties, and such agreement shall have no further force or effect.

5. LERNA’s WARRANTIES AND DISCLAIMERS
5.1. Warranty. Lerna represents and warrants that: (i) the Lerna Core does not infringe on any third-party intellectual property rights or constitute a misuse or misappropriation of a trade secret; (ii) contingent upon Customer and User’s proper use of the Lerna Core does not infringe on any third party intellectual property rights; and (iii) it has the right to grant the access and use of the Lerna Core to Customer and User.
5.2. Warranty Disclaimers. LERNA DOES NOT WARRANT THAT THE LERNA CORE WILL BE UNINTERRUPTED, TIMELY, DEFECT FREE, ERROR FREE, VIRUS FREE OR FREE OF OTHER HARMFUL COMPONENTS OR WILL NOT BE SUBJECT TO UNAUTHORIZED USE OR DISCLOSURE. CUSTOMER AND USER ACCEPT THAT THE LERNA CORE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL DEFECTS AND ERRORS, IF ANY. LERNA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. INFORMATION CREATED BY THIRD PARTIES AND THAT MAY BE ACCESSED ON THE LERNA CORE IS NOT ENDORSED BY LERNA, AND MAY NOT HAVE BEEN REVIEWED BY LERNA, AND REMAINS THE RESPONSIBILITY OF THE THIRD PARTY. Lerna does not control User Data and does not guarantee the accuracy, integrity or quality of such User Data AND OF ANY INFORMATION OBTAINED THROUGH THE LERNA CORE. CUSTOMER AND User ARE solely responsible for evaluating the accuracy, reliability, completeness and usefulness of User DATA AND any information obtained through THE use of the Lerna Core, and for making and implementing decisions based on such information, and dealing with any related consequences. Lerna assumes no liability for any OF SUCH INFORMATION handled by CUSTOMER AND USER through the Lerna Core.

6. LIMITATION OF LIABILITY
6.1. Dollar Cap. EXCEPT FOR FRAUD, PHYSICAL INJURY OR DEATH OR INTENTIONAL OR GROSS FAULT, OF LERNA, IN NO EVENT SHALL LERNA’S AGGREGATE, CUMULATIVE LIABILITY OF PROVEN DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE GENERAL TERMS EXCEED THE TOTAL AMOUNT PAID AND PAYABLE, IF ANY, BY USER HEREUNDER IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY, OR ONE HUNDRED DOLLARS IN CASE OF A USER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT. PARTIES UNDERSTAND THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SERVICE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF LERNA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. LERNA HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE THE RIGHTS TO ACCESS AND USE THE SERVICES.
6.2. Exclusion. IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, GOODWILL, BUSINESS OR DATA OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE GENERAL TERMS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR INTENTIONAL OR GROSS FAULT OF THE PARTY. THE FOREGOING EXCLUSIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

7. INTELLECTUAL PROPERTY AND FEEDBACK
7.1. No Rights granted. Lerna retains all right, title, and interest in and to the Lerna Core and the content Customer accesses through the Lerna Core, other than User Data. The General Terms do not grant Customer any intellectual property rights in or to the Lerna Core or in Lerna’s logos and other trademarks. Customer or Users shall not remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Website or the Lerna Core.
7.2. Rights granted. Lerna hereby grants Customer a limited, non-exclusive revocable license to access and use the Lerna Core during the term of the Agreement, and worldwide. The license to use the Lerna Core is to be understood by the reproduce and represent it, in accordance with its purpose.

8. TERM AND TERMINATION
8.1. Term. The General Terms are effective as of the Effective Date, and (i) for Customer, until all subscriptions terms to the Lerna Core have expired or until they are terminated by any or both Parties in accordance with Section 8.2 (Termination); or (ii) for a User, as long as the Lerna Core is offered by Lerna and User is accessing the Lerna Core (the “Term”). Should Lerna no longer wish to offer the Services, the User will need to immediately cease to use the Lerna Core and delete the application from its devices.
8.2. Termination. The General Terms may be terminated:
a. by Customer at any time if it cancels the Services through its Lerna Core account or with an Lerna customer representative;
b. by the Parties at any time if the other Party materially breaches any of its obligations under the General Terms. If the material breach is curable, the General Terms may only be terminated if such breach is not cured within 15 days after a Party provides notice of the breach to the other Party. For clarity purposes, any violation of Section 2.5 (Unacceptable Use) and 2.8 (Unacceptable Conduct of Users) by Customer shall be deemed a material breach of the General Terms;
c. by Lerna if Customer fails to make any payment of the Service Fees within 15 days after Lerna provides notice that such amounts are overdue to Customer;
d. by Lerna for convenience, with at least a 30 days prior written notice.
e. By Customer in case of substantial revision of the content, features and functions of the Lerna Core as mentioned at Sections 2.1 and 2.3, after notice remaining without cure for 15 days.
8.3. No Refund in the Event of Termination. Section 3.3 (No Refunds) applies, regardless of the cause of termination. However, if Customer has terminated the General Terms pursuant to Section 8.2 (ii), (v) or if Lerna has terminated for convenience, Lerna shall refund all prepaid fees for the remainder of the unused Term.
8.4. Survival. Any rights and obligations of the Parties hereunder that by their nature are reasonably intended to survive termination or expiration of the General Terms, shall survive termination or expiration of the General Terms including Sections 2.4 (Unacceptable Use), 2.7 (Indemnification by Customer), 4.6 (Use or Disclosure of Confidential Information), 5.2 (Warranty Disclaimers), 6 (Limitation of Liability), 7 (Intellectual Property and Feedback), 8 (Term and Termination) and 9 (General) shall survive termination of the General Terms.

9. GENERAL
9.1. Governing Law and Venue. The General Terms shall be governed, construed and enforced solely in accordance with the laws applicable in the Canadian province of Quebec, without reference to: (i) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (iii) other international laws. Any litigation in any way relating to the Services or the General Terms shall be brought and venued exclusively in the judicial district of Montreal in the Canadian province of Quebec, and the Parties waive any objection that such venue is inconvenient or improper.
9.2. Specific Performance. Notwithstanding any other provision in the General Terms, a non-breaching Party may, upon any breach of the General Terms, immediately seek enforcement of the General Terms by means of specific performance or injunction, without any requirement to post a bond or other security.
9.3. Force Majeure. Except as expressly provided otherwise in the General Terms, Lerna shall not be liable by reason of any failure or delay in the performance of its obligations on account of an unforeseeable and irresistible event, including external causes with the same characteristics, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, act of God, war, terrorism and governmental action.
9.4. No Other Agreements. The General Terms are the complete and exclusive statement of the Parties’ agreement relating to the subject matter hereof and supersedes all oral or written offers, understandings, representations, conditions, warranties, covenants and other communications between the Parties relating hereto, including any non-disclosure agreements relating to the subject matter hereof.
9.5. Notices. Lerna may send notices pursuant to the General Terms to Customer’s email contact points provided by Customer. Customer may send notices pursuant to the General Terms to Lerna at info@lerna.com. Notices shall be deemed received 24 hours after they are sent.
9.6. Assignment & Successors. The General Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns.
9.7. Waiver. No waiver by either Party of any default in performance on the part of the other Party shall constitute a waiver of any subsequent breach or default by the defaulting Party.
9.8. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of the General Terms invalid or otherwise unenforceable in any respect. In the event that a provision of the General Terms is held to be invalid or otherwise unenforceable, such provision shall be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the General Terms shall continue in full force and effect.
9.9. Consumer Protection Law. Lerna Core is intended for use by businesses and organizations and not for consumer purposes. To the maximum extent permitted by law, consumer protection laws do not apply.
9.10. Relationship of the Parties. The Parties are independent contractors. The General Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
9.11. Amendments. Unless User has a superseding written agreement with Lerna, Lerna may amend the General Terms from time to time on its website, as its business evolves. Any revisions to the General Terms will become effective on the date Lerna publishes the changes. Users can review the most current version of the General Terms at any time by visiting this page at https://www.Lerna.com/terms. If Users use the Services, as the case may be, after the effective date of any changes, that use or access will constitute the acceptance of the revised General Terms.