LUMINARY CLOUD TERMS OF SERVICE

 

Last Updated: October 24, 2021

 

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

 

IF YOU ARE USING THE SERVICE 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.

 

AGREEMENT

 

These Luminary Cloud Terms of Service (“Agreement”) are entered into by and between Luminary Cloud, Inc. (“Luminary”) and the entity or person placing an order for or accessing the Service (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in this Agreement and the Order Form that references this Agreement. This Agreement is effective as of the date which is the earlier of: (a) Customer’s initial access to any Service through any online provisioning, registration or order process; and (b) Customer’s execution of the Order Form (the “Effective Date”).

 

From time to time, Luminary may modify this Agreement. Unless otherwise specified by Luminary, changes become effective for Customer upon renewal of the then current Subscription Term (as defined below) after the updated version of this Agreement goes into effect. Luminary will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account (as defined below), email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term, and in any event continued use of the Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If Customer does not agree to the changes, Customer may terminate this Agreement in accordance with Section 7.2 (Termination).

 

TERMS AND CONDITIONS

 

1.              The Service

 

1.1.                  Service Description. Luminary provides the website located at www.luminarycloud.com and its platform (the “Platform”) as software as a service for high-performance computing, simulation, and analytical services in the fields of engineering and science. As used in this Agreement, the “Service” means the edition of the Platform selected by Customer on the most recently executed Order Form, and as further described in the Documentation, and the processing of Service Data.

 

1.2.                  Subscription Term. The Service is made available to Customer on a subscription basis for a set term designated on an Order Form (“Subscription Term”).

 

1.3.                  Evaluation Term. The Service may be made available to Customer on an evaluation basis for a number of days specified on an applicable Order Form (“Evaluation Term”). During an Evaluation Term, Customer may access and use the Service, but solely for its internal evaluation purposes and in accordance with the terms and conditions of this Agreement.

 

1.4.                  Access to the Service. Customer may access and use the Service in accordance with the terms and conditions of this Agreement and the Documentation. Use of and access to the Service is permitted only by personnel of Customer designated by Customer (“Users”). Customer shall be responsible for compliance by each User with all of the terms and conditions of this Agreement. Any data (a) provided by a User that is uploaded to the Service or (b) created or generated for a User by the Service is Customer Data for the purposes of this Agreement, except for Service Data.

 

1.5.                  Client Software. To the extent Customer chooses to install Client Software as part of the Service, subject to all of the terms and conditions of this Agreement, Luminary grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Client Software internally, but only in connection with Customer’s use of the Service and otherwise in accordance with the Documentation and this Agreement.

 

1.6.                  Contractors and Affiliates. Customer may permit its independent contractors and consultants (“Contractors”) and Affiliates to serve as Users, provided (a) Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement and (b) any use of the Service by each such Contractor or Affiliate is solely for the benefit of Customer.

 

1.7.                  General Restrictions

 

1.7.1.     Customer will not (and will not permit any third party to):

 

                        i.         sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Service to a third party (except as expressly set forth in Section 1.6 (Contractors and Affiliates)) or in a service bureau or outsourcing offering;

 

                      ii.         use the Service to provide, or incorporate the Service into, any other high-performance computing software or service, computer-aided engineering software or service, or other downloadable software or software as a service (or otherwise directly expose the functionality of the Service) for the benefit of a third party;

 

                     iii.         reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Luminary);

 

                     iv.         remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service);

 

                       v.         use the Service in violation of the Acceptable Use Policy;

 

                     vi.         use any portion of the Service to create a competitive service, product or technology; or

 

                   vii.         access the Service if Customer is a direct competitor of Luminary, except with Luminary’s prior written consent.

 

1.7.2.     Notwithstanding anything to the contrary in this Agreement, including the DPA, (i) Customer may not conduct any security testing of Luminary or the Service, including but not limited to, penetration testing, and (ii) Customer may only exercise any audit rights through the review of Luminary’s applicable third-party certifications and/or audits, subject to reasonable additional security and confidentiality controls.

 

1.8.                  Early Access Service Terms. Luminary may make available to Customer certain products, features, services, software, regions or cloud providers that are not yet generally available, including such products, features, services, software, regions or cloud providers that are labeled as “private preview,” “public preview,” “early access,” “pre-release,” “alpha,” or “beta” (collectively, “Early Access Services”). Customer may access and use Early Access Services solely for its internal evaluation purposes and in accordance with the Luminary Cloud Early Access Terms, available at http://legal.luminarycloud.com/early-access-terms.html (or such successor URL as may be designated by Luminary). In the event of any conflict between this Agreement and the Luminary Cloud Early Access Terms, the Luminary Cloud Early Access Terms shall govern and control solely with respect to the Early Access Services.

 

2.              Data

 

2.1.                  Rights in Customer Data. As between the parties, Customer or its licensors will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data (including Contributed Data) and any modifications made thereto in the course of the operation of the Service as provided to Luminary. Subject to the terms of this Agreement, Customer hereby grants to Luminary a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data as necessary to provide the services to Customer or to prevent or address service or technical problems under this Agreement (including, but not limited to: testing Luminary software quality, producing additional simulation results and design recommendations for Customer, recommending configuration and exploration options to Customer, and creating updated versions of simulation results for Customer), or as may be required by law. Notwithstanding anything to the contrary herein, and subject to the terms of this Agreement, Customer hereby grants to Luminary a perpetual, irrevocable, non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Contributed Data for the purposes of testing and improving Luminary’s products and services (including, but not limited to: training machine learning models and researching new algorithms and techniques).

 

2.2.                  Rights in Service Data.  As between the parties, Luminary will retain all right, title and interest (including any and all intellectual property rights) in and to the Service Data and any modifications made thereto in the course of the operation of the Service, which may include aggregated and anonymized data based upon such Service Data, so long as such data does not reveal any personally identifiable information of any particular individual person.

 

2.3.                  Uploads of Customer Data. Customer will be responsible for providing all Customer Data to Luminary and will provide such Customer Data in a format consistent with the requirements set forth in the Documentation (or as otherwise specified by Luminary). Errors in loading Customer Data into the applicable Service due to defective media, erroneous data or failure to meet such requirements may cause Customer Data to be rejected by the Service and Luminary will have no responsibility for any related impact on Customer’s ability to access or use the Service.

 

2.4.                  Downloads of Customer Data. If Customer chooses to download any Customer Data from the Service, Customer will be responsible for downloading such Customer Data in a format consistent with the requirements of Customer. Errors in downloading Customer Data due to defective media, erroneous data or failure to meet such requirements may cause Customer Data to be damaged, corrupted, or become otherwise inaccessible to Customer, and Luminary will have no responsibility for any related impact on Customer’s ability to access or use the Customer Data.

 

2.5.                  Sharing of Customer Data. If Customer chooses to make its Customer Data available through the Service to designated third parties other than its Users for the purposes of collaboration, use, or modification (such third parties “External Users”), Customer hereby grants to Luminary a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display such Customer Data as necessary to provide such External Users access to the Customer Data as directed by Customer.

 

 

2.6.                  Customer Obligations.

 

2.6.1.     In General. Customer will ensure that Customer’s use of the Service and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Luminary that Customer has sufficient rights in the Customer Data to grant the rights granted to Luminary in Section 2.1 and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.

 

2.6.2.     User ID and Password Protection. Customer will require that all permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Luminary will not have any liability under this Agreement for actions taken using Customer’s user IDs and passwords, including any unauthorized use or access caused by misuse or misappropriation of such user IDs and passwords. Customer will be responsible for restricting access by any User who is no longer authorized to access the Service.

 

2.7.                  Data Privacy. 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.

 

3.              Intellectual Property

 

3.1.                  Luminary Technology. Customer agrees that Luminary or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Platform, the Service, all Documentation and Client Software, any Technical Services deliverables (unless otherwise expressly provided by the applicable SOW), and any and all related and underlying technology and documentation; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated (collectively, “Luminary Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Luminary Technology is granted to Customer. Further, Customer acknowledges that the Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Service, except (if applicable) for the Client Software in downloadable software formats chosen by and made available by Luminary in its sole discretion. Notwithstanding anything to the contrary herein, Luminary may freely use and incorporate into Luminary’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Services relating to Luminary’s products or services (“Feedback”).

 

3.2.                  Service Data and Contributed Data. Notwithstanding anything to the contrary herein, Customer agrees that Luminary may collect Service Data and Contributed Data, and Luminary may use Service Data and Contributed Data to develop, improve, support, and operate its products and services during and after the term of this Agreement. This Section does not give Luminary the right to identify Customer as the source of any Service Data or Contributed Data without written permission from Customer. For the avoidance of doubt, this Section does not change the confidential nature of Contributed Data.

 

3.3.                  Marketing. Luminary may use and display Customer’s name, logo, trademarks, and service marks on Luminary’s website and in Luminary’s marketing materials in connection with identifying Customer as a customer of Luminary. Upon Customer’s written request, Luminary will promptly remove any such marks from Luminary’s website, and, to the extent commercially feasible, Luminary’s marketing materials.

 

4.              Confidential Information. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the disclosing party (the “Disclosing Party”) for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

 

5.              Subscription Types, Usage, Fees, and Renewals

 

5.1.                  Generally. Customer will be charged for, and agrees to pay, the sum of (i) Customer’s monthly Usage Fees (defined in Section 5.2 below), and (ii) any other Fees incurred by Customer for services described in the Luminary Cloud Service Consumption Table. Charges will be made in accordance with Customer’s election on the applicable Order Form, on one of the following two bases: (a) On-Demand, whereby Customer will be charged monthly for Fees based on Customer’s usage of the Services during the preceding month (an “On-Demand Subscription”); or (b) Prepaid, whereby Customer will select an amount of prepaid funds to add to their account for the Subscription Term upon execution of the applicable Order Form and will be charged for those prepaid funds at the commencement of the Subscription Term (a “Prepaid Subscription”). For the avoidance of doubt, Prepaid Subscriptions terminate upon the earlier of (a) the expiration date provided on the applicable Order Form; or (b) the exhaustion of the prepaid funds as provided by the applicable Order Form.

 

5.2.                  Usage Fees. Usage Fees are calculated as set forth in the Luminary Cloud Service Consumption Table.

 

5.3.                  Monthly Usage Limits. Customer acknowledges and agrees that Customer’s use of the Service may be limited or capped by Luminary in its sole discretion.

 

5.4.                  Changes to Pricing or Conversion Rate. Any changes to pricing or conversion rate shall be as set forth in the Luminary Cloud Service Consumption Table.

 

5.5.                  Free Usage. Luminary may offer Customer promotional credits or other free use of the Service. Any such credits or free use will be credited against Customer’s monthly Fees. Promotional credits or other free use of the Service have no cash value, are non-transferable and non-refundable.

 

5.6.                  Evaluation Periods. If Customer signed up for the Service under an Evaluation Term, Luminary will make the Service available to Customer on an evaluation basis free of charge until the earlier of  (a) the end of the number of days specified in an Order Form, if applicable, from the execution date of such Order Form; (b) the exhaustion of the promotional funds provided by Luminary in its sole discretion as part of the Evaluation Term; or (c) the start date of any Subscription Term.

 

 

6.              Billing; Payment Methods; Taxes

 

6.1.                  Recurring Billing for On-Demand Services. By selecting an On-Demand Subscription on an applicable Order Form, using the Service, and providing or designating a Payment Method or otherwise designating a date to start invoice-based billing, Customer hereby authorizes Luminary (or its designee) to issue invoices and collect payments (including charging Customer’s Payment Method) on the first day of each month for all applicable Fees during the previous month. Customer acknowledges that the amount billed each month may vary depending on Customer’s use of the Service, and authorizes Luminary to issue invoices and collect payments for such varying amounts. Except as otherwise expressly provided herein or by the Luminary Cloud Service Consumption Table, all payment obligations are non-cancelable, and Fees are non-refundable.

 

6.2.                  Billing for Pre-Paid Services. By selecting a Prepaid Subscription and any amount of prepaid funds on an applicable Order Form, Customer hereby authorizes Luminary (or its designee) to issue invoices and collect payments (including charging Customer’s Payment Method), starting on the first day of the Subscription Term for the amount designated by Customer on the applicable Order Form. Except as otherwise expressly provided herein or by the Luminary Cloud Service Consumption Table, all payment obligations are non-cancelable, and Fees are non-refundable. Unless otherwise provided by a subsequently-executed Order Form, any prepaid funds left unused by Customer at the end of a Subscription Term will be automatically forfeited by Customer.

 

6.3.                  Payment Methods. At any time, Customer may change its Payment Method information via the online administrative portal in the Service (to the extent that the desired Payment Method options are available & configurable in the Service) or by emailing a billing support request to Luminary at accounting@luminarycloud.com, or may terminate the Subscription Term in accordance with Section 7.2 (Termination). If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, Customer remains responsible for any uncollected amounts and authorizes Luminary to continue billing the Payment Method, as it may be updated. Customer acknowledges that for certain Payment Methods, the issuer of Customer’s Payment Method may charge a foreign transaction fee or other charges.

 

6.4.                  Taxes. The Fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder other than taxes based on income, property, or employees of Luminary. If Luminary has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Luminary will invoice Customer and Customer will pay that amount unless Customer provides Luminary with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

7.              Term and Termination

 

7.1.                  Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with the terms herein. If there is no SOW, Order Form or Transition Period currently in effect, either party may terminate this Agreement upon written notice to the other party. Each Order Form will terminate upon expiration of the applicable Subscription Term, unless expressly stated otherwise therein or in this Agreement.

 

7.2.                  Automatic Renewal. Unless otherwise provided by a subsequently-executed Order Form, at the end of a Subscription Term: (i) an On-Demand Subscription shall automatically renew for an additional one (1) month term unless either party gives the other party written notice of nonrenewal at least twenty (20) days prior to the expiration of the then-current Subscription Term, (ii) a Prepaid Subscription shall automatically convert into an On-Demand Subscription for the same Support Level and edition of the Platform, with a one (1) month Subscription Term and no Luminary Credit Discount, unless either party gives written notice of nonrenewal at least ninety (90) days prior to the expiration of the then-current Subscription Term.

 

7.3.                  Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within sixty (60) days. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. For any termination of this Agreement by Customer for cause in accordance with Section 7.3(a), Customer shall be entitled to a refund of any unused Fees Customer has pre-paid for the Service purchased hereunder.

 

7.4.                  Effect of Termination. Except to the extent expressly set forth in Section 7.5 (Transition Period), upon any expiration or termination of this Agreement, Customer will immediately cease use of and access to the applicable Service (including any related Luminary Technology) and delete all copies of the Client Software and Documentation, the Service passwords or access codes, and any other Luminary Confidential Information in its possession. Following termination (or, if applicable, the Transition Period) Customer will have no further access to any Customer Data. Promptly following the expiration or termination of this Agreement (or, if applicable, the Transition Period) Luminary will delete the Customer Data. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. Further, upon termination, Luminary will charge Customer’s Payment Method for Customer’s use of the Service during the current month. Except as otherwise expressly provided herein or by the Luminary Cloud Service Consumption Table, no fees shall be refundable upon termination.

 

7.5.                  Transition Period. If this Agreement is not terminated by Luminary for Customer’s breach, then following the termination of the Agreement, there shall be a thirty (30)-day Transition Period during which Customer may contact Luminary regarding retrieval of Customer Data from the Service. Luminary may allow Customer to retrieve Customer Data from the Service (to the extent that the Service provides the capability to download or export Customer Data) during the Transition Period and may charge additional Fees for Customer to do so, at Luminary’s sole discretion, and provided that notwithstanding any termination of this Agreement, the Agreement shall continue in full force and effect during the Transition Period. Except to the extent expressly set forth in this Section, Luminary has no obligation to archive or make available Customer Data after expiration or termination of this Agreement.

 

7.6.                  Survival. The following Sections will survive any expiration or termination of this Agreement: 1.7 (General Restrictions), 3 (Intellectual Property), 4 (Confidential Information), 5 (Usage and Fees), 6 (Billing; Payment Methods; Taxes), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 10 (Indemnification), 11 (Limitation of Remedies and Damages), 12 (General Terms), and 13 (Definitions).

 

7.7.                  Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Luminary reserves the right to suspend provision of the Service: (a) if Customer is overdue on a payment; (b) if Luminary deems such suspension necessary as a result of Customer’s breach of Section 1.7 (General Restrictions) or Section 2.6 (Customer Obligations); (c) upon expiration of Customer’s Evaluation Term, unless Customer has provided or designated a Payment Method; (d) if Luminary reasonably determines suspension is necessary to avoid material harm to Luminary or its other customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Luminary’s control; or (e) as required by law or at the request of governmental entities.

 

8.              Warranty

 

8.1.                  Service Warranty. Luminary warrants that the Service will operate in substantial conformity with the applicable Documentation. In the event of a breach of this warranty, Luminary will use commercially reasonable efforts to correct the reported non-conformity, at no charge to Customer, or if Luminary determines such remedy to be impracticable, either party may terminate. The foregoing shall be Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section. This warranty will not apply: (i) during any Evaluation Term, or (ii) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, or (iii) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services, or (iv) to any Early Access Services.

 

8.2.                  Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH SERVICE, THE CLIENT SOFTWARE, AND ALL TECHNICAL SERVICES ARE PROVIDED “AS IS” AND LUMINARY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. LUMINARY DOES NOT WARRANT THAT THE USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES LUMINARY WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. LUMINARY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LUMINARY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARMS OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THIS SECTION 8.2 SHALL NOT APPLY TO ANY EVALUATION PERIOD.

 

8.3.                  Support and Availability. During the Subscription Term, Luminary will provide Customer support and service levels for the applicable Service selected at registration in accordance with the Support and Service Levels Page.

 

9.              Technical Services. If Customer procures Technical Services, the scope of Technical Services will be as set forth in a mutually agreed Statement of Work referencing this Agreement (“SOW”). Customer will pay Luminary at the rates set forth in the SOW (or, if not specified, at Luminary’s then-standard rates) for such Technical Services. Customer will reimburse Luminary for actual reasonable travel and lodging expenses approved in advance by Customer. Customer may use anything delivered as part of the Technical Services in support of authorized use of the applicable Service and subject to the terms regarding Customer’s rights to use the Service set forth in Section 1 (The Service) and the applicable SOW, but Luminary will retain all right, title and interest in and to any such work product, code and deliverables and any derivative, enhancement or modification thereof created by or on behalf of Luminary except as expressly provided in the applicable SOW.

 

10.           Indemnification

 

10.1.               Indemnification by Luminary. Luminary will defend Customer from and against any claim by a third party alleging that the Service, when used as authorized under this Agreement, infringes any patent, copyright, or trademark or other intellectual property right of a third party and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Luminary (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the Service is (or in Luminary’s opinion is likely to be) enjoined, or if required by settlement or if Luminary determines such actions are reasonably necessary to avoid material liability, Luminary may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are not commercially reasonably practicable, (c) terminate this Agreement in which case Luminary will refund Customer any pre-paid but unused fees as of the effective date of such termination. The foregoing indemnification obligation of Luminary will not apply to the extent the applicable claim is attributable to: (1) the modification of the Service by any party other than Luminary or a third party authorized by Luminary; (2) the combination of the Service with products or processes not specified in the Documentation or provided by Luminary; (3) any unauthorized use of the Service; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within the Service. THIS SECTION SETS FORTH LUMINARY’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.

 

10.2.               Indemnification by Customer. Customer will defend Luminary from and against any claim by a third party arising from or relating to any Customer Data or any product or service offered by Customer in connection with or related to the Luminary Service, and will indemnify and hold harmless Luminary from and against any damages and costs awarded against Luminary or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.

 

10.3.               Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party shall: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 10 shall not relieve the indemnifying party of its obligations under this Section 10, however the indemnifying party shall not liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by such delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Further, any indemnification obligation under this Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.

 

11.           Limitation of Remedies and Damages

 

11.1.               Consequential Damages Waiver. EXCEPT FOR CUSTOMER’S BREACH OF SECTIONS 1.7 (GENERAL RESTRICTIONS), 2.6 (CUSTOMER OBLIGATIONS), EITHER PARTY’S BREACH OF SECTION 4 (CONFIDENTIAL INFORMATION), OR EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

 

11.2.               Liability Cap. EXCEPT FOR CUSTOMER’S BREACH OF SECTIONS 1.7 (GENERAL RESTRICTIONS), 2.6 (CUSTOMER OBLIGATIONS), OR EITHER PARTY’S BREACH OF SECTION 4 (CONFIDENTIAL INFORMATION), OR EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY AND ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY (FOR DAMAGES OR LIABILITY OF ANY TYPE) IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (i) ONE THOUSAND UNITED STATES DOLLARS ($1,000) OR (ii) THE SUM OF ALL AMOUNTS ACTUALLY PAID AND  PAYABLE BY CUSTOMER TO LUMINARY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.

 

11.3.               Failure of Essential Purpose. The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

 

12.           General Terms

 

12.1.               Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

 

12.2.               Severability. If any provision of this Agreement will be held by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.

 

12.3.               Dispute Resolution; Governing Law; Jurisdiction and Venue. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or teleconference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply to claims subject to indemnification under Section 10 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information. This Agreement will be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof will be the state and United States federal courts located in Santa Clara County, California and both parties hereby submit to the personal jurisdiction of such courts.

 

12.4.               Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

 

12.5.               Notice. Any notice or communication required or permitted under this Agreement will be in writing (a) for notices to Luminary to Luminary Cloud, Inc. Attn: Legal, 500 Arguello Street, Suite 105, Redwood City, CA 94063 USA, and (b) for notices to Customer, to the address electronically submitted by Customer during registration for the Service, or in each case at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email, immediately upon receipt. Notwithstanding the foregoing, except for notices pertaining to non-payment and except as otherwise expressly permitted in this Agreement or in an Order Form, notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email. Email notifications to Luminary shall be to legal@luminarycloud.com.

 

12.6.               Amendments; Waivers. Except as otherwise expressly provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.

 

12.7.               Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Service is provided as an online subscription, and that Luminary may change and update the Service (in which case Luminary may update the Documentation accordingly). The terms described in the Support and Service Levels Page and the Acceptable Use Policy, respectively, may be updated from time to time upon reasonable notice to Customer (which may be provided through the Service).

 

12.8.               Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

 

12.9.               Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

 

12.10.            Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

 

12.11.            Export Control. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any third parties to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.

 

12.12.            Federal Government End Use Provisions. Luminary provides the Service, including all related software and the Luminary Technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Luminary to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

 

13.           Definitions

 

Acceptable Use Policy” means Luminary’s acceptable use policy, made available at http://legal.luminarycloud.com/aup.html (as such link may be updated), and which is incorporated herein by this reference.

 

Account” means an account created by Customer in the Service in which Customer stores and processes Customer Data.

 

Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.

 

Client Software” is any desktop client software, command-line interface(s), and/or software development kit(s) included in the Service that is made available to Customer by Luminary for installation on end user computers or Customer’s servers or cloud infrastructure.

 

Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Luminary Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Luminary without any marking or further designation. All Customer Data, including Contributed Data, will be deemed Confidential Information of Customer without any marking or further designation. Confidential Information shall not include information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.

 

Contractor” is defined in Section 1.4 (Access to the Service).

 

Contributed Data” means any data or data files of any type that are uploaded, created, or generated by or on behalf of Customer to the Service for storage in a data repository which is specifically designated by Customer through the Service to be made available to Luminary for the purposes of improving Luminary’s products and services (as described in the Documentation).

 

Customer Data” means any data or data files of any type that are uploaded, created, or generated by or on behalf of Customer to the Service for storage in a data repository, including Contributed Data. For the avoidance of doubt, Customer Data does not include Service Data.

 

Disclosing Party” is defined in Section 4 (Confidential Information).

 

Documentation” means Luminary’s technical documentation and usage guides for the Service, as updated by Luminary from time to time, made available through the Service and/or Luminary’s website.

 

Feedback” is defined in Section 3.1 (Luminary Technology).

 

Fees” means the fees payable by Customer for the Service, Technical Services, or other services identified in the Luminary Cloud Service Consumption Table.

 

Luminary Cloud Service Consumption Table” means the Luminary Cloud Service Consumption Table located at http://legal.luminarycloud.com/consumption.html (or such successor URL as may be designated by Luminary from time to time), and which is incorporated herein by this reference.

 

Order Form” means an order form mutually agreed upon in writing by the parties referencing this Agreement and setting forth the Service to be provided and any additional terms applicable to the particular Service to be provided pursuant to this Agreement.

 

Payment Method” means a current, valid method of payment accepted by Luminary, including, but not limited to, a credit card.

 

Receiving Party” is defined in Section 4 (Confidential Information).

 

Service” is defined in Section 1.1 (Service Description).

 

Service Data” means processing and performance metrics and log files; diagnostics information (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); usage statistics; summary metrics about jobs and projects; and other information about Customer’s use of the Service as well as associated metadata. Metadata includes information on how, when, where and by whom a piece of content was collected and how that content has been formatted or edited. Metadata also includes information that Users can add or can have added to their content, such as keywords, geographical or location information, and other similar data. Service Data does not include Customer Data.

 

SOW” is defined in Section 9 (Technical Services).

 

Subscription Term” is defined in Section 1.2 (Subscription Term).

 

Support and Service Levels Page” means the Luminary Cloud Support Policy And Service Level Agreement located at http://legal.luminarycloud.com/support-and-service-levels.html describing Luminary’s current support policies and service level offerings as applicable to the Service procured by Customer (or such successor URL as may be designated by Luminary), and which, if applicable, is incorporated herein by this reference.

 

Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction.

 

Technical Services” means technical assistance or professional services related to the Service provided by Luminary to Customer, as set forth in an SOW.

 

Transition Period” means the transition period following expiration or termination of the Agreement, as further described in Section 7.5 (Transition Period).

 

User” is defined in Section 1.4 (Access to the Service).