Luminoso Daylight Express

Terms and Conditions

THE TERMS AND CONDITIONS DESCRIBED HEREIN (THE “TERMS AND CONDITIONS”) GOVERN THE SUBSCRIPTION BASED, SOFTWARE-AS-A-SERVICE PROVIDED BY LUMINOSO (THE “SERVICE”), WHICH IS NON-CANCELLABLE, NON-REFUNDABLE AND MAY ONLY BE TERMINATED FOR MATERIAL BREACH BY EITHER PARTY, IF BREACH IS NOT CURED WITHIN THE NOTICE PERIOD. 

EFFECTIVE AS OF SEPTEMBER 17, 2019

1. LUMINOSO SERVICE.

Service. Subject to the terms and conditions of the Agreement, Luminoso grants Customer (without right to sublicense) a nonexclusive, nontransferable right and license to (a) access and use the Service and the work products resulting from the Service that are made available by Luminoso to Customer, which are based on processing the Customer Data ( the “Results”), only through a web-based interface and solely for Customer's internal business purposes. Customer's access and use of the Service shall comply with all other conditions set forth herein.

Access Credentials. Luminoso will provide Customer with access credentials (or a mechanism that permits Customer to specify access credentials) for the authorized users specified in the Order Form. Users shall be identified individuals who are direct employees of the Customer. Customer is solely responsible for maintaining the confidentiality of its access credentials and other account information, and will be solely liable for any and all activities under its account. Customer shall be responsible for keeping all account information up-to-date and may contact Luminoso to request changes to any user’s account access. Customer agrees to notify Luminoso immediately of any unauthorized use of Customer's account or any other breach of security.

Customer Data. Customer bears all responsibility and liability for the accuracy and completeness of the information and data provided by Customer during registration, and all other information and data provided by Customer, which may be stored, analyzed, processed and used by the Service (“Customer Data”) and Luminoso's access, possession and use as permitted herein. Other than registration data, Luminoso has no obligation to backup, retain or deliver any Customer Data and unless required by applicable law, regulation or government order, all Customer Data will be deleted or removed from any technology platform developed and/or used by Luminoso in providing the Service within a reasonable period of time after expiration or termination of this Agreement. During the term of this Agreement, Customer hereby grants Luminoso a nonexclusive, royalty-free, worldwide right and license to access, copy, store, process, distribute, transmit and otherwise use the Customer Data for the purposes of providing the Service (and support services) to Customer.

GDPR. In the event that any Customer Data processed under this Agreement includes any information and data which would be subject to the General Data Protection Regulation (GDPR), Customer agrees to only process or transfer said Customer Data in compliance with the GDPR. Luminoso’s GDPR compliance program details may be found at https://luminoso.com/gdpr, but in all cases, Luminoso agrees to only store, process or transfer Customer Data on the Customer’s behalf pursuant to Customer’s documented instructions and Luminoso will comply with the GDPR requirements providing adequate protection for the transfer of Customer Data or Results from the EU/EEA to third country where required by law. The parties acknowledge and agree to provide each other with all information reasonably necessary to demonstrate and remain in compliance with the GDPR.

Limitations. Luminoso will use commercially reasonable efforts to make the Service available to Customer at all times, subject to downtimes for scheduled maintenance, upgrades, repairs and emergency outages. Luminoso will not be responsible or liable for any failure in the Service resulting from or attributable to (a) unusually high usage volumes, (b) failures in any telecommunications services, networks or systems, (c) Customer’s or any third party's negligence, acts or omissions, (d) any force majeure or other cause beyond Luminoso’s reasonable control or (e) unauthorized access to the Service, breach of firewalls or other hacking.

Support. Luminoso will use commercially reasonable efforts to provide Customer with technical support for the Service in accordance with its standard practices and any user instructions, help information and other documentation regarding the Service that are made generally available by Luminoso to its customers in electronic or other form (“Documentation”).

Security. Luminoso's current Product Security Policy is available at www.luminoso.com/product-security-information. Customer acknowledges and agrees that the Service is provided using cloud-computing resources, which are remote from and not owned or controlled by Luminoso, and that no storage device or data transmission over the Internet can be guaranteed to be 100% secure. Accordingly, Luminoso cannot promise the security of any Customer Data or Results, and Customer hereby agrees that all Customer Data and Results are provided at Customer’s own risk.

Privacy. Luminoso will not intentionally disclose, distribute, transmit or use any Customer Data except (a) as reasonably necessary for Luminoso (or its contractors) to provide the Service, (b) as authorized by Customer or as otherwise expressly permitted under this Agreement or (c) as required by court order, law or regulation, or if Luminoso reasonably believes that such action is necessary to conform or comply with any legal, regulatory, law enforcement or similar requirement or investigation, to protect or defend the rights or property of Luminoso or any third party or to enforce this Agreement.

Changes. Luminoso reserves the right, at its sole discretion, to modify the Service, and/or to modify the terms and conditions of this Agreement (in whole or in part) upon reasonable notice at any time, or discontinue the Service by giving notice to Customer of at least thirty (30) days. Change notices may be communicated via the Service, electronic mail or other permitted notice. Following any such notice, continued use of the Service after the effective date of the change constitutes Customer's acceptance of that change.

2. PAYMENTS.

Subscription Fees. Customer agrees to pay Luminoso all fees in the amounts and at the times specified in the Order Form, and as otherwise provided in this Agreement. Such subscription fees shall be payable in advance, at a fixed cost, either as a lump-sum annually or on a monthly recurring basis as agreed upon in the Order Form. In the event Customer selects monthly payments, Luminoso shall deliver an invoice, on the monthly anniversary of the Effective Date, to the Billing Contact provided by Customer in the Order Form, or to such future recipient as Customer may designate upon thirty (30) day prior written notice to Luminoso. All amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) and due upon receipt in US dollars at Luminoso's address or to an account specified by Luminoso. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Luminoso's net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. Customer agrees to reimburse Luminoso for all costs (including attorneys' fees) incurred by Luminoso in collecting late payments.

3. CONFIDENTIALITY.

Scope. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement, but not including any information the receiving party can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such information. The Luminoso platform, Documentation, any statistics, metrics and other analyses that are based on or derived from the Service or Results, which are developed in the aggregate with other data or results or in a manner that does not disclose Customer’s identity or Customer Data (unless in aggregated or anonymized form)(“Analytics”) and pricing information are Luminoso's Confidential Information.

Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the other's Confidential Information without its written consent, and shall use reasonable care to protect the other's Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to the restrictions in this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party's request at any other time), the receiving party shall return all of the other's tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.

Compelled Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.

4. PROPRIETARY RIGHTS.

Customer. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Customer Data.

Luminoso. Except for the limited rights and licenses to access and use the Service and Documentation expressly granted hereunder, no other license is granted, no other use is permitted and Luminoso (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Luminoso platform, Documentation, Service, and Analytics.

Restrictions. Customer shall not, directly or indirectly (a) use any Luminoso Confidential Information to create any software, platform, service or documentation that is similar to the Platform, Service, Documentation, (b) attempt to access any component of the Platform, Service or to disassemble, decompile, reverse engineer or otherwise discover any source code or underlying organization, structures, ideas or algorithms of the Platform or Service, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use the Platform, Service in any time-share or service bureau arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify the Platform, Service, Documentation, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to do any of the foregoing.

General Learning. Customer agrees that Luminoso is free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service under this Agreement (including without limitation, that which it could have acquired performing the same or similar service for another customer), but not any Customer Data.

5. LIMITED WARRANTY AND DISCLAIMERS.

Customer. Customer represents and warrants to Luminoso that it owns all rights, title and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights in the Customer Data as may be necessary to permit the access, use and processing thereof as contemplated by this Agreement.

Luminoso. Luminoso warrants to Customer that it will use commercially reasonable efforts to maintain the Service operational in accordance with its then current service level commitments, which are available at www.luminoso.com/product-support-and-service-levels-policy (the SLA). Luminoso's sole obligation and Customer's exclusive remedy for any failure to comply with the SLA shall be as expressly set forth therein. The warranty period is the term of the service.

Luminoso does not warrant uninterrupted or error-free operation of the service. These warranties are the exclusive warranties from Luminoso. They replace all other warranties, including the implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose.

6. INDEMNIFICATION.

Luminoso. Luminoso agrees to defend Customer against any demand, suit, action or other claim by a third party that the Service misappropriates or infringes its intellectual property rights, and to indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of any such claim. The foregoing states the entire liability of Luminoso, and Customer's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service and Deliverables, any part thereof or their use or operation.

Customer. Customer agrees to defend Luminoso against any demand, suit, action or other claim by a third party that is related to any Customer Data or breach of Customer's warranties, and to indemnify Luminoso for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of any such claim.

Conditions. The indemnifying party's obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnified party may participate in the defense at its sole cost and expense. The indemnifying party will not enter into any settlement that adversely affects the indemnified party's rights or interest without its prior written approval, not to be unreasonably withheld. The indemnifying party shall not be responsible for any settlement it does not approve in writing.

7. LIMITATION OF LIABILITY.

Luminoso’s entire liability for all claims in the aggregate arising from your use of the Service will not exceed the amount of any actual direct damages up to the amounts paid in the prior Twelve (12) months for the Service, regardless of the basis of the claim. This limit applies collectively to Luminoso, its subsidiaries and contractors. Luminoso will not be liable for special, incidental, exemplary, indirect or economic consequential damages, lost profits, business, revenue, goodwill, anticipated savings or loss of data, loss or loss of use, or cost to procure substitute technologies goods or services.

8. TERM AND TERMINATION.

Term. This Agreement shall commence upon the Effective Date and automatically renew on the annual anniversary thereof on the same terms and conditions for 12-month terms, unless cancelled by the Customer in writing thirty (30) days prior to the final day of the current term.

Termination. This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. In addition to the foregoing, Luminoso also reserves the right, in its sole and absolute discretion, to suspend providing the Service and Customer agrees that Luminoso may shut off and suspend Customer’s access to the Service at any time, without having to terminate this Agreement, if Customer is more than thirty (30) days late with respect to any undisputed payments due hereunder, subject to being provided written notice of such payment delinquency by Luminoso. Luminoso will not be obligated to restore access to the Service until Customer has paid all fees owed.

Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and (b) the provisions of Sections 3 (Payments), 4 (Confidentiality), 5 (Proprietary Rights), 6 (Limited Warranty and Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9 shall survive.

9. GENERAL PROVISIONS.

Entire Agreement. The Agreement (including these Terms and Conditions, Order Form, Security Policy, Privacy Policy, SLA and any registration records) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. Except as expressly provided herein, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.

Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, regulations and rules, US laws, regulations and rules shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the implementation of the Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. Unless waived by Luminoso in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Massachusetts, and both parties consent to the jurisdiction of such courts with respect to any such action. Customer is not authorized to access or use the Service in any jurisdiction that does not give effect to all provisions of this Agreement (including without limitation, this section).

Compliance with Laws. Each party remains responsible for complying with laws, rules and regulations applicable to its business, use of the Service, and content, including applicable export and import laws.

Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.

Notices. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated in the Order Form or at such other address designated by written notice. Notices will be deemed to have been duly given and effective: when receipt is electronically confirmed, if transmitted by facsimile or electronic mail; or when received, if personally delivered or sent by overnight courier or certified or registered mail, return receipt requested.

Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, Luminoso may subcontract performance of all or any part of the Service, and either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

Force Majeure. Neither party shall be liable for damages resulting from any delay or failure in performing its obligations hereunder that arises out of any cause, condition or circumstance beyond its reasonable control.

Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

Marketing/PR. Luminoso may use Customer company name and logo for marketing purposes until we receive a written request to not use company name and logo. Luminoso will keep customer’s confidential information confidential and will acquire written permission from customer before publicizing data or results.