Last Updated: October 24, 2021
THESE LUMINARY CLOUD EARLY ACCESS TERMS (“EARLY ACCESS TERMS”) GOVERN THE USE OF ANY EARLY ACCESS SERVICES PROVIDED BY LUMINARY CLOUD, INC. (“LUMINARY”) TO THE ENTITY OR PERSON PLACING AN ORDER FOR OR ACCESSING THE EARLY ACCESS SERVICES (“CUSTOMER” OR “YOU”). THIS AGREEMENT CONSISTS OF THE TERMS AND CONDITIONS SET FORTH BELOW AND THE ORDER FORM THAT REFERENCES THIS AGREEMENT (“ORDER FORM”). BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, REGISTERING FOR THE EARLY ACCESS SERVICES, OR ACCESSING OR USING ANY PORTION OF THE EARLY ACCESS SERVICES, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THESE EARLY ACCESS TERMS. IF YOU DO NOT AGREE TO THESE EARLY ACCESS TERMS, YOU MAY NOT USE THE EARLY ACCESS SERVICES. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING THE EARLY ACCESS SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
1. Early access Services. Luminary has developed a software as a service platform for high-performance computing, simulation, and analytical services in the fields of engineering and science (the “Technology”). Customer wishes to utilize an experimental or prerelease “early access” version of its Technology (the “Early Access Services”), and Luminary desires to make the Early Access Services available to Customer, subject to the following terms and conditions. Luminary hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Early Access Services on its own behalf and on behalf of its end users (“Authorized Users”), solely for the purpose of evaluating the performance and functionality of the Early Access Services (the “Limited Purpose”). Customer acknowledges and agrees that its Authorized Users’ access to and use of the Early Access Services is subject to these Early Access Terms. For the avoidance of doubt, Customer is responsible for the use of the Early Access Services by its Authorized Users and for their compliance with these Early Access Terms. Luminary’s services outside the scope of these Early Access Terms, if any, shall be provided pursuant to Luminary’s then-current applicable services policies and procedures (“Other Terms”). Nothing in any of Luminary’s Other Terms or any other existing agreements that Customer may have with Luminary apply to or are applicable to these Early Access Terms, or Customer’s use of the Early Access Services offered hereunder.
2. Intellectual Property. The Early Access Services, any accompanying documentation (“Documentation”), and all other materials provided by Luminary hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all intellectual property rights in each of the foregoing, are the exclusive property of Luminary and its licensors. Customer agrees that it will not, and will not permit any other party to: (a) permit any third party to access the Early Access Services or Documentation; (b) modify, adapt, alter or translate the Early Access Services or Documentation; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Early Access Services or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Early Access Services; (e) use or copy the Early Access Services or Documentation except for the Limited Purpose; or (f) publish or disclose to any third party any performance benchmark tests or analyses or other non-public information relating to the Early Access Services or the use thereof.
3. LIMITED SUPPORT. Luminary shall have no obligation under these Early Access Terms to correct any bugs, defects or errors in the Early Access Services or to otherwise support or maintain the Early Access Services.
4. Data SECURITY AND Privacy. Luminary shall use commercially reasonable efforts in accordance with industry standards to protect Customer Data. Each party shall comply with the Data Processing Addendum located at http://legal.luminarycloud.com/dpa.html (or such successor URL as may be designated by Luminary) (“DPA”), which is incorporated herein by this reference.
5. Feedback. Customer understands and agrees that the Early Access Services represent an experimental or prerelease version of software and services that may contain bugs, defects, and errors. In exchange for the licenses granted to Customer to use such software, Customer agrees to use good faith efforts to test, use, and evaluate the Early Access Services in live operations, and to report to Luminary, either orally or in writing, any errors, problems, defects, or suggestions for changes and improvements to the Early Access Services and/or Technology (collectively, “Feedback”). Customer agrees that Luminary may use and exploit any Feedback in any manner on a worldwide, irrevocable, perpetual, royalty-free basis. Customer agrees that Luminary may use Customer Data (as defined below in Section 9.1) referenced or contained in bug reports and/or Feedback in connection with providing and improving the Early Access Services, Technology, and Luminary’s related products and services, provided, however, that Customer’s identity will not be disclosed to third parties without Customer’s consent.
6. Disclaimer of Warranties. Customer acknowledges that the Early Access Services contain experimental or prerelease code for testing purposes only and are not at the level of performance, availability, and compatibility of a final, generally available product offering. Furthermore, Customer acknowledges that the Early Access Services may contain bugs, errors, omissions and other problems that could cause system or other failures and data loss. Customer acknowledges that Luminary may not introduce a product similar to or compatible with the Early Access Services. Accordingly, Customer acknowledges that any research, development or other work that Customer performs regarding the Early Access Services is done entirely at Customer’s own risk. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE EARLY ACCESS SERVICES, AND ALL OTHER DOCUMENTATION AND MATERIALS PROVIDED HEREUNDER, ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LUMINARY MAKES NO WARRANTIES WITH RESPECT TO THE EARLY ACCESS SERVICES OR DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, ACCURACY, INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, SYSTEM INTEGRATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE EARLY ACCESS SERVICES IS WITH CUSTOMER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LUMINARY OR ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
7. Limitation of Liability. IN NO EVENT WILL LUMINARY OR ITS LICENSORS (IF ANY) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THESE EARLY ACCESS TERMS OR CUSTOMER’S USE OF THE EARLY ACCESS SERVICES, EVEN IF LUMINARY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF LUMINARY AND ITS LICENSORS (IF ANY) RELATED TO THESE EARLY ACCESS TERMS SHALL BE LIMITED TO ONE HUNDRED DOLLARS (U.S. $100). The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Early Access Terms have been entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8. Confidentiality. The structure, sequence, organization and code of the software used to provide the Early Access Services constitute valuable trade secrets of Luminary and its licensors. Customer and its Authorized Users shall keep confidential, and will not disclose to any third party: any information about the Technology and Early Access Services, including its existence, design, performance characteristics, Feedback, test results, and any other non-public information provided by Luminary (“Confidential Information”). Customer agrees to limit access to the Early Access Services to those Authorized Users who are necessary for Customer to complete its testing and evaluation of the Early Access Services. Customer agrees that it and its Authorized Users shall treat all Confidential Information with the same degree of care as it accords to its own confidential information, which in no event shall be less than reasonable care. Except as provided herein, Customer agrees not to permit any third-party access to the Early Access Services without Luminary’s advance written approval.
9. CUSTOMER DATA.
9.1 License to Customer Data. “Customer Data” means any and all information, data, texts, files, images, settings, models, designs, code, user-defined functions, quantities, properties, and other materials that are provided, imported or otherwise used by or on behalf of Customer (or its Authorized Users) with the Early Access Services. Customer represents and warrants that it and its Authorized Users own or possess sufficient rights to all Customer Data uploaded to the Early Access Services. As between Customer and Luminary, Customer will at all times remain the exclusive owner of such Customer Data. Customer hereby grants to Luminary a non-exclusive, worldwide, royalty-free and fully paid license (i) to use the Customer Data as necessary to provide the Early Access Services to Customer and (ii) to use aggregated and anonymized Customer Data (a) to improve the Early Access Services, Technology, and Luminary’s related product and service offerings; (b) to create new products and services relating to the Technology and Early Access Services (including analytics services such as providing benchmarking); and (c) to generate and disclose statistics regarding use of the Early Access Services, provided, however, that Customer’s identity will not be disclosed to third parties without Customer’s consent.
9.2 Restrictions and Obligations. The Early Access Services are not intended to be used in connection with any content or data subject to third-party compliance rules or regulatory requirements, including but not limited to, (i) export controlled materials, or (ii) data regulated by HIPAA, PCI, GDPR, or any other regulations or data privacy laws (collectively “Regulated Data”). Customer shall not use the Early Access Services in connection with any Regulated Data, and Customer shall keep and maintain its own copy of all Customer Data (including Regulated Data) that is provided through the Early Access Services. Luminary is not obligated to back up and may delete or remove at any time any Customer Data that is posted on or uploaded to the Early Access Services.
10. PERFORMANCE DATA. Customer acknowledges that the Early Access Services will store certain diagnostic information about the routine operations of the Early Access Services (including, without limitation, its performance, accuracy, robustness, security, availability, uptime, usage rates, number of active users, user behavioral statistics, input/output data sizes, enabled features, general configuration data, resource utilization, and any software faults) (the “Performance Data”) and will periodically transmit this diagnostic information to Luminary. Notwithstanding any other term of these Early Access Terms, Luminary may access and use, and shall retain all right, title and interest in any and all Performance Data collected in connection with the Early Access Services, which may include aggregated and anonymized data based upon such Performance Data, so long as such data does not reveal any personally identifiable information of any particular individual person.
11. Termination. Either party may terminate these Early Access Terms upon written notice to the other party (including by email with electronic return receipt). Upon termination, Customer shall immediately cease all use of Early Access Services, and delete or destroy all copies of the Documentation in the possession or control of Customer.
12. General Provisions. The parties are independent contractors. These Early Access Terms will be governed by the laws of the State of California. Customer submits to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara County, California for any disputes arising out of or related to these Early Access Terms. Customer may not assign or transfer, by operation of law, change of control or otherwise, any of its rights under these Early Access Terms to any third party without Luminary’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Any waiver or failure to enforce any provision of these Early Access Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any part of these Early Access Terms is found to be void and unenforceable, it will not affect the validity of the balance of these Early Access Terms; the other provisions of these Early Access Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any notice under these Early Access Terms will be in writing and deemed effective upon receipt when sent by confirmed email or when delivered in person or mailed by internationally recognized express courier or first class, registered or certified mail, postage prepaid, to the address of the other party as such party may specify in writing. These Early Access Terms constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral.
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