LUNA SOLO Hosted Services Agreement
TERMS AND CONDITIONS governing the use of the Luna Imaging, Inc. hosted web services ("Services"), LUNA Software package (“Software”), and other Luna software, tools, resources, and publications (collectively "Luna Properties") as outlined below.
1. Authorization to Use the Products and Services. Luna Imaging Inc. (Luna) hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Products and Services, solely in accordance with this Agreement.
2.1 Services. Luna Imaging Inc. (Luna) will provide the following in a hosted environment:
Set-up and maintain the servers and databases to host your content
Reliable web access to your content
Install LUNA server software components
Software updates and upgrades
Backup and recovery
2.2. Software. The Software includes multiple software programs that may be variously installed on one or more computers, in our hosted environment.
2.2.1. The Software will be made available to you on a non-exclusive, non-transferable, limited time period, right to use licensed basis as specified in this Agreement.
2.3 Luna Properties. Luna Properties include all software, documentation, technical publications, training materials, forums, blogs, APIs, and other materials created by or for us relating to the configuration, operation, development, or support of our Services and Software.
3.1 You represent and warrant: (i) that you are solely responsible for the development, operation, and maintenance of Your Content, including without limitation, the accuracy, security, appropriateness and completeness of Your Content and all product-related materials and descriptions; (ii) that you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Content; (iii) that Your Content (a) does not violate, misappropriate or infringe any rights of us or any third party, (b) does not constitute defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, use in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that Your Content does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code (collectively “Harmful Components”); and (v) to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Luna.
3.2 Monitoring the Content. We have no obligation to monitor Your Content, but may do so and disclose information regarding the use of the Services for any reason if we believe that it is reasonable to do so, including to: satisfy laws, regulations, or governmental or legal requests; operate the Services properly; or protect ourselves and our subscribers. We may immediately remove your material or information from our servers, in whole or in part, which we determine to infringe another’s property rights.
3.3. You agree that you will not use the Services or Software to host, either for free or for a fee, the Collections of any third party and allow access to such third party without our express prior written consent.
4. Term, Termination and Suspension
4.1. Term. The term of this Agreement (“Term”) will commence, and you may begin using the Services, once you have a Service Agreement in force, and agree to the terms and conditions of this Agreement. The Agreement will remain in effect until terminated by you or us in accordance with this Section 4.
4.2. Termination by You for Convenience. You may terminate this Agreement for any reason or no reason at all, at your convenience, by providing us written notice of termination in accordance with Section 11. We will reimburse you for the remainder of your prepaid annual hosting fees on a pro rated basis.
4.3. Termination or Suspension by Us Other Than for Cause. We may suspend your right and license to use any or all Services, Software, and any associated Luna Properties, or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time by providing you sixty (60) days’ advance notice in accordance with the notice provisions set forth in Section 11 below.
4.4. Termination or Suspension by Us for Cause. We may suspend your right and license to use any individual Service or any set of Services, or terminate this Agreement in its entirety (and, accordingly, your right to use all Services), for cause effective as set forth below:
4.4.1. Immediately upon our notice to you in accordance with the notice provisions set forth in Section 11 below if: (i) you attempt a denial of service attack on any of the Services; (ii) you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services or the Luna Properties poses a security or service risk to us, to any user of services offered by us, to any third party sellers on any of our websites, or to any of our or their respective customers or may subject us or any third party to liability, damages or danger; (iii) you otherwise use the Services in a way that disrupts or threatens the Services; (iv) you are in default of your payment obligations hereunder and there is an unusual spike or increase in your use of the Services; (v) we determine, in our sole discretion, there is evidence of fraud with respect to your account; (vi) you use any of the Luna Content (as defined in Section 5.1) or Marks (as defined in Section 5.2) other than as expressly permitted herein; (vii) we receive notice or we otherwise determine, in our sole discretion, that you may be using Luna Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (viii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (ix) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
4.4.2. Fifteen (15) days following our provision of notice to you in accordance with the notice provisions set forth in Section 11 below if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism, and you fail to cure such payment obligation default or correct such payment mechanism problem within such 15 day period.
4.4.3. Fifteen (15) days following our provision of notice to you in accordance with the notice provisions set forth in Section 11 below if you breach any other provision of this Agreement and fail, as determined by us, in our sole and reasonable discretion, to cure such breach within such 15 day period.
4.5. Effect of Suspension or Termination.
4.5.1. Suspension. Upon our suspension of your use of any Services, in whole or in part, for any reason, (i) fees will continue to accrue for any Services that are still in use by you (including Support), notwithstanding the suspension (including your continued storage of data on the Luna service during the period of suspension); (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Services; and (iii) all of your rights with respect to the applicable Services shall be terminated during the period of the suspension.
4.5.2. Termination. Upon termination of this Agreement for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all of your rights under this Agreement shall immediately terminate; and (iii) you shall return within a reasonable time period , or if instructed by us, destroy all Luna Confidential Information (as defined in Section 7.1 below) and any Luna Software then in your possession.
4.6. Data Preservation in the Event of Suspension or Termination.
4.6.1. In the Event of Suspension Other Than for Cause. In the event of a suspension by us of your access to any Service for any reason other than a for cause suspension under Section 4.4.1, during the period of suspension, (i) we will not take any action to intentionally erase any of your data stored on the Services and (ii) applicable Service data storage charges will continue to accrue.
4.6.2. In the Event of Termination Other Than for Cause. In the event of any termination by us of any Service or any set of Services, or termination of this Agreement in its entirety, we will not take any action to intentionally erase any of your data stored on the Services for a period of thirty (30) days after the effective date of termination; and (ii) your post termination retrieval of data stored on the Services will be conditioned on your payment of amounts due us.
5. License to Use the Software and Luna Properties
5.1. Luna Properties. We may make available to you, for your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (all such materials except those specifically made available by us under separate license terms, the “Luna Properties”). Subject to your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for your right to use the subject Service, we hereby grant to you, without the right to sub-license, a limited, non-exclusive, non-transferable license during the Term, under our intellectual property or proprietary rights in the Luna Properties, only to install, copy and use the Luna Properties solely in connection with and as necessary for your use of such Services and solely to the extent in compliance with all the terms and conditions of this Agreement. The Luna Properties may include, without limitation:
Proprietary application programming interfaces (“APIs”);
Developer tools for use in connection with the APIs;
Articles and documentation for use in connection with the use and implementation of the APIs (collectively, “Documentation”);
Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related APIs and other technology;
Textual materials made available as part of the Service (“Text Materials”); and
Other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video (with the Text Materials, collectively, “Luna Content”).
Except as may be expressly authorized under this Agreement:
You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software we provide, including software in or accessed via the Luna Properties.
You may not, and may not attempt to, reverse engineer, disassemble, or decompile the Software or the Services or apply any other process or procedure to derive the source code of any software we provide, including software in or accessed via the Luna Properties.
You may edit Text Materials only if, in doing so, you do not materially alter the meaning of the Text Materials or cause the Text Materials to become factually incorrect or misleading.
5.2. Restrictions with Respect to Use of Marks. You may use any trademarks, service marks, service or trade names, logos, and other designations of Luna and its affiliates or licensors (“Marks”) in conjunction with the display of the Luna Content and for the purpose of indicating that Your Content was created using the Services. You must within a reasonable time discontinue use of any Mark as specified by us at any time in writing. We may modify any Marks provided to you at any time, and upon notice, you will use only the modified Marks and not the old Marks. Other than as specified in this Agreement, you may not use any trademark, service mark, trade name or other business identifier of Luna or its affiliates unless you obtain Luna’s or its affiliates’ prior written consent. We may not use any trademark, service mark, trade name or other business identifier of you unless we obtain your prior written consent.
5.3. Nonexclusive Rights. The rights granted by us in this Agreement with respect to the Software, the Luna Properties, the Marks and the Services are non-exclusive, non-transferable, and for a limited time period.
6. Downtime and Service Suspensions; Security
6.1. Downtime and Service Suspensions. You acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Without limitation to Section 9, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you notice of any Service Suspension in accordance with the notice provisions set forth in Section 11 below and to post updates on the Luna websites regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
6.2. Security. We strive to keep Your Content secure, but, given the nature of the Internet, cannot guarantee that we will be successful at doing so. We strongly encourage you routinely archive Your Content. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your Content.
7.1. Use and Disclosure. You shall not disclose Luna Confidential Information during the Term or at any time during the three (3) year period following the end of the Term. As used in this Agreement, “Luna Confidential Information” means all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Luna Confidential Information includes, without limitation, (i) nonpublic information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that we are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information described in Section 7.2 or any information that you are required to disclose by law.
7.2. Excluded Information. Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us under Section 7.1 above, with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.
7.3. Use and Disclosure. We shall not disclose your Confidential Information during the Term or at any time during the three (3) year period following the end of the Term. As used in this Agreement, “Confidential Information” means all nonpublic information disclosed by you, your business partners or your or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes, without limitation, (i) nonpublic information relating to your or your business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that you are obligated to keep confidential; and (iii) the nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information described in Section 7.4 or any information that we are required to disclose by law.
7.4. Excluded Information. Notwithstanding any other provision in this Agreement, we shall not have any confidentiality obligation to you under Section 7.3 above, with respect to any information provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.
8. Intellectual Property
8.1. Our Services, Software, and the Luna Properties. Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the Software; (iii) the Luna Properties; (iv) the Marks; and (v) any other technology and software that we provide or use to provide the Services and the Software. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Software, the Marks, or other technology and software (including third party technology and software), except for the limited use and access rights described in this Agreement.
8.2. Your Data and Content. Other than the rights and interests expressly set forth in this Agreement, and excluding Luna Properties and works derived from Luna Properties, you reserve all right, title and interest (including all intellectual property and proprietary rights) in and to Your Content. We will not disclose Your Content and your Marks, except: (i) if you expressly authorize us to do so in connection with your use of the Services; or (ii) as necessary to provide the Services to you, or to comply with the Agreement or the request of a governmental or regulatory body, subpoenas or court orders.
9. Disclaimers. LUNA SOFTWARE, THE MARKS, THE SERVICES AND ALL TECHNOLOGY, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS”. WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10. Limitations of Liability. NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
11. Notices. Except as provided elsewhere in this Agreement, each party giving or making any notice, request, demand or other official communication (each, a “Notice”) pursuant to this Agreement shall give the Notice in writing and use one of the following methods of delivery: (i) personal delivery; (ii) Registered or Certified Mail (with return receipt requested and postage prepaid); or (iii) nationally recognized overnight courier (with all fees prepaid). A party giving a Notice shall send it to the other party at the following address(es):
11.1. To You.
11.2. To Us.
Luna Imaging, Inc.
2702 Media Center Drive
Los Angeles, CA 90065-1733
Attn: Marlo Lee, CEO
12. Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
13. Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
14. Entire Agreement and Modifications. This Agreement constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter. The parties may amend, supplement or otherwise modify this Agreement only by a written agreement executed by both parties.
BY CLICKING ACCEPT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.