This Lumina Subscription Agreement, including its exhibits (“LSA”), governs any ordering document executed by the customer identified in that ordering document (“Customer”) and the Lumina company identified in that ordering document (“Lumina”). This LSA, the applicable ordering document, and any other incorporated terms, comprise the complete understanding between the parties on the subject matter (“Agreement”).
1.1 Ordering Services. Customer may access and use the subscription services offered via Lumina’s website for the term stated in the ordering document (“Services”). Customer may allow its Affiliate or Partner (as defined below) to order Services under the terms of this LSA only if Customer informs Lumina in writing of the specific Affiliate or Partner authorized to do so. That authorized Affiliate will be (a) deemed a “Customer” for that order only; and (b) jointly and severally liable with Customer for its use of the Services and compliance with the Agreement. “Affiliate” means an entity that Controls, is Controlled by, or is under common Control with, a party. “Control” means direct or indirect ownership of (i) more than 50% of an entity’s voting interest; or (ii) the right to receive more than fifty percent (50%) of an entity’s profits. “Partner” means a third-party entity or intermediary that is approved by the Customer to access the Services, but which is not directly Controlled or Employed by the “Customer”.
1.2 Payment and Taxes. Customer will pay the fees for the Services in accordance with the payment terms stated in the ordering document. Customer’s purchases are non-cancelable and payment for Services is non-refundable, except as otherwise stated in this LSA. Customer will pay or reimburse Lumina for all federal, state, and local taxes, including sales, use, gross receipts, VAT, levy, GST, or similar applicable transaction taxes imposed on Customer’s purchase of Services.All taxes payable by Customer will be separately stated and exclusive of the fees. Customer will have no liability for taxes that are statutorily imposed on Lumina, including taxes or fees measured by Lumina’s net or gross income.
2.1 Use of Services. Lumina shall provide Customer access to the Services in accordance with this Agreement. Customer will use the Services solely for its intended purpose. Unless otherwise stated in the Agreement, only Customer-designated employees, partners and contractors are authorized to use the Services (“Customer User”). Customer may only use the Services for Customer’s internal use. Customer will not provide access to the Services to any third party, except that Customer may allow its Affiliates or Partners to access and use the Services if Customer is fully liable for its Affiliates’ or Partners’ use of the Services and compliance with the Agreement. Customer will promptly and without undue delay notify Lumina upon learning of any unauthorized use of the Services or any other breach of security related to the Services. Customer may use information that it collects in connection with its use of the Services only as needed for use of the Services and as expressly permitted in this LSA. Lumina may communicate to Customer Users about the Services, including how to use the Services.
2.2 Provision of Services. Customer is responsible for providing Lumina with the information necessary for Lumina to provide the Services. Customer is solely responsible for the accuracy, quality and legality of such information. If a Service must integrate with third-party systems or applications used by Customer (e.g. a customer relationship management system, “CRM”), Customer is solely responsible for the integration and related activities. Lumina disclaims any and all liability for the use of third-party systems or applications residing outside Lumina’s systems.
2.3 Compliance with Laws. The parties will comply with all applicable federal, state, and local laws.
3.1 Definition. “Confidential Information” means any information disclosed under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by discloser at the time of disclosure and confirmed in writing to recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by recipient to be confidential (e.g. pricing, non-public Personal Data, etc.). Confidential Information does not include any portion of the information that recipient can prove (a) was rightfully known to recipient before receipt from discloser; (b) was generally known to the public on the Effective Date; (c) becomes generally known to the public after the Effective Date, through no fault of recipient; (d) was received by recipient from a third party without any confidentiality obligation; or (e) was independently developed by recipient without breach of this Section 3.
3.2 Limited Use and Non-Disclosure. Recipient will (a) use Confidential Information only for the purposes of furthering the business relationship between the parties; (b) protect Confidential Information using the same degree of care it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; (c) not disclose Confidential Information to any third party except (1) to Affiliates, Partners, or employees, students, consultants, and agents who (i) have a need to know it in order to carry out their obligations under the Agreement, and (ii) are under written confidentiality and non-use obligations at least as restrictive as those stated in this LSA or (2) as required by law; and (d) not modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information, to the extent applicable, unless authorized in writing by discloser.
No right, title or interest in any intellectual property right transfers to the other party, except for the limited rights stated in the Agreement. Customer is not obligated to provide Lumina or its Affiliates or Partners with any suggestions, enhancement requests, or other feedback about the Services or related technology. However, if Customer does provide any feedback to Lumina, Lumina may use and modify it without any restriction or payment.
5.1 Term. This LSA is effective on the date the first ordering document is executed by Customer and Lumina (“Effective Date”) and remains in effect until terminated.
5.2 Termination and Suspension. Either party may terminate this LSA or an ordering document if the other party materially breaches the Agreement and fails to cure the breach within 45 days after receiving notice of the breach. Lumina may suspend Customer’s access to the Services if Customer is in breach of the Agreement and the suspension will continue for as long as reasonably necessary for Customer to remedy the breach. If all ordering documents under this LSA have expired or been terminated, then either party may terminate this LSA for convenience by providing written notice to the other party.
5.3 Effect of Termination. Termination of this LSA or an ordering document will not relieve Customer from its obligation to pay Lumina any fees stated in an ordering document, excluding termination by Customer for Lumina’s uncured material breach of this LSA. If Customer terminates this LSA or an ordering document because of Lumina’s uncured material breach, Lumina will refund a pro-rata share of any pre-paid fees under the applicable ordering document. Customer will notify Customer Users that their access to the applicable Services has terminated and Lumina may remove or discard all content that Customer uploaded or otherwise made available to Lumina. Termination of an ordering document does not terminate this LSA; however, termination of this LSA will result in the immediate termination of all ordering documents. The provisions of this LSA that by their nature extend beyond the termination of this LSA will survive termination.
Lumina makes no representation or warranty about the Services, including any representation that the Services will be uninterrupted or error-free. To the fullest extent permitted under applicable law, Lumina disclaims any implied or statutory warranty, including any implied warranty of title, non-infringement, merchantability or fitness for a particular purpose.
7.1 Indemnification Scope. Lumina will defend and indemnify Customer, its Affiliates, and their respective directors, officers and Customer Users from and against all third party claims to the extent resulting from or alleged to have resulted from (a) the Services’ infringement of a third party’s intellectual property right; or (b) Lumina’s material breach of the Agreement. Customer will defend and indemnify Lumina, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from (y) the infringement of a third party’s intellectual property right by any content, data or other information uploaded into Lumina’s system or otherwise provided by Customer; or (z) Customer’s material breach of the Agreement.
7.2 Indemnification Procedures. Each party will promptly notify the other in writing of any third party claim. The indemnifying party will (a) control the defense of the claim; and (b) obtain the other party’s prior written approval of the indemnifying party’s settlement or compromise of a claim. The indemnified party will (y) not unreasonably withhold or delay its approval of the request for settlement or compromise; and (z) assist and cooperate in the defense as reasonably requested by the indemnifying party at the indemnifying party’s expense.
8.1 Damages Waiver. Subject to Section 8.3, to the fullest extent permitted by law, neither party, including its respective Affiliates and Partners, will be liable to the other in connection with the Agreement for lost profits or lost business opportunities, loss of data, or any indirect, incidental, consequential, special or punitive damages.
8.2 Liability Cap. Subject to Section 8.3, neither party, including its respective Affiliates, will be liable to the other in connection with the Agreement for an amount that exceeds the total fees paid or payable to Lumina during the 12-month period before the event giving rise to the liability.
8.3 Exclusions. The limitations of liability stated in sections 8.1 and 8.2 do not apply to a party’s (a) confidentiality or indemnification obligations; (b) liability for fraud, gross negligence or intentional misconduct; (c) liability for death or personal injury; (d) violation of the other party’s intellectual property rights; or (e) liability for a personal data breach caused by Lumina’ negligent acts or omissions.
If an issue arises under the Agreement and the applicable ordering document was signed by Lumina Technologies, Inc., then the Agreement is governed by the laws of the State of California, and any action or proceeding (including those arising from non-contractual disputes or claims) related to the Agreement will be brought in a federal court in the Northern District of California. Each party irrevocably submits to the jurisdiction and venue of the applicable courts. The prevailing party in any litigation may seek to recover its legal fees and costs.
If a conflict exists between any of the terms in the Agreement, then the ordering document will govern, followed by this LSA. Neither party relies on any undertaking, promise, assurance, statement, representation, warranty or understanding of any person relating to the subject matter of the Agreement, other than as stated in the Agreement. Notices will be provided in writing and delivered by commercial overnight courier to the address of the other party stated on the ordering document, unless otherwise stated in the Agreement. Notices are effective on the date of delivery as indicated in the records of the courier. The Agreement does not create a partnership, agency relationship, or joint venture between the parties. Neither party has the power or authority to bind the other or to create any obligation or responsibility on behalf of the other. Under no circumstances will any employee of one party be deemed to be the employee of the other. Neither party will assign the Agreement in whole or in part without the other party’s prior written consent (which consent will not be unreasonably denied, delayed or conditioned), except to an Affiliate or a successor that is not a competitor of the non-assigning party, made in connection with a merger or sale of all or substantially all of a party’s assets or stock. Any attempted assignment in violation of this restriction is void. The Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. If Customer is an agency binding a client under this LSA, Customer (a) represents and warrants that it has the authority to bind the client under this LSA; (b) will notify Lumina in writing of the name and address of its client that will access and use the Services; and (c) remains jointly and severally liable for all of Customer’s obligations under the Agreement. If the Agreement is translated into a language other than English, the translation is for convenience only, and the English language version will govern. Lumina may remotely monitor Customer’s use of the Services to ensure compliance with the Agreement. If any provision of the Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intentions and the remaining provisions will not be affected. The parties may amend the Agreement only in a written amendment signed by both parties, except for the User Agreement and Service Terms, which may be modified in accordance with their terms. If this LSA will be executed then it can be executed electronically and in counterparts, each of which is deemed to be an original and together comprise a single document. Each party represents and warrants that the individual binding a party under this LSA is authorized to do so.