NOTICE: THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF THE ONLINE SERVICE DESCRIBED HEREIN, WHICH USE IS LIMITED TO THOSE AUTHORIZED USERS IN AN ORGANIZATION THAT HAS ACCEPTED THESE TERMS.
These Terms of Services (“Agreement”) is made and entered into by and between Lumina Analytics, LLC, a Florida limited liability company with its principal place of business at 501 East Kennedy Boulevard, Suite 801, Tampa, Florida 33602 (“Lumina”) and the person or organization or government agency accepting this Agreement (“Customer” also referred to as “User” or “You.”)
The term of this Agreement will commence once you agree to the terms and conditions of this Agreement by clicking the “I Accept”or “ I have read and agree” button, and (the “Effective Date”). The terms and conditions listed below govern your use of the online services provided by Lumina.The Agreement will remain in effect until terminated by You or Lumina in accordance with Section 9 of this Agreement.
BY CLICKING THE "I ACCEPT" OR “I HAVE READ AND AGREE” BUTTON YOU AGREE YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, GOVERNMENT AGENCY, OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THAT ENTITY TO THIS AGREEMENT.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- Definitions.As used herein, the following terms shall have the respective meanings set forth below:
“Service” means the web-based, hosted services provided by Lumina via access to Lumina’s SaaS platform and/or website and/or other designated products or services that may be set forth in any Statement(s) of Work executed by Customer and Lumina and incorporated herein.
“Query” means the name or word you submit through the Service for Search Results.
“Search Results” means the search results obtained by the Services from publically available sources or third party content providers and made available to You through the Services.
“User Data” means all electronic data or information submitted by User to the Service.
“User” means Customer and Customer’s employees, contractors, agents, and representativeswho are authorized to use the Service and have been supplied user identifications, shared log-ins, and passwords by User (or by Lumina at User’s request).
“Administrator”means the individual(s) appointed by you to oversee identifications, shared log-ins, passwords, and access and use of the Services.
“IP Rights” means all inventions (whether patentable or not), discoveries, ideas, methods, procedures, materials, formulae, software, algorithms, tools, techniques, designs, routines, data, technical drawings or diagrams, prototypes, deliverables and the data contained therein, and results from datamining, including all patent, copyright, trademark, trade secrets and other intellectual property rights therein, and the right to secure registrations, renewals, reissues, and extensions thereof, that are developed or held by Lumina or its affiliates.
2.1 Provision of Services.Subject to the terms, conditions, and restrictions set forth in this Agreement(including, but not limited to, the restrictions in Sections 2.2 and 2.3), as well as Customer’s timely advanced payment of the subscription fees set forth in any Statement of Work or as otherwise invoiced to Customer by Lumina or Lumina’s prime contractor,Lumina hereby grants to User, for the term of this Agreement, and subject to all IP Rights owned or otherwise assertable by Lumina, a non-exclusive, nontransferable, limited and restricted right to remotely access and use the Service for User’s internal business purposes only. Lumina will provide User with one or more unique identifications, shared log-ins, and passwords so that the User will be able to access and use the Service as provided in this Agreement. You will be responsible for maintaining the confidentiality of User’s assignedidentifications, shared log-ins, and passwords and for all activities and charges resulting from their use, including, but not limited to, unauthorized use. There is no distribution of software and code under this Agreement.
2.2 No Implied License.User acknowledges and agrees that this Agreement shall in no way be construed to provide to User any express or implied license:
- to copy, reproduce, modify, change, alter, translate, improve, prepare derivative works based on, decompile, disassemble, reverse engineer, sell, rent, lease, distribute, sublicense, publish, or otherwise transfer its right to access and use the Service; or
- to use the Service in any outsourcing, time sharing, service bureau, or other similar enterprise; or
(iii)to use the Service other than as expressly set forth in Section 2.1;
and User expressly agrees not to take any of the foregoing actions. All rights not expressly granted under this Agreement are reserved to Lumina.
2.4 Service Fees and Payment.In consideration of your use of any of the Service, You agree to pay applicable fees in the amounts set forth on any Statement of Work attached hereto or as otherwise invoiced to Customer by Lumina or a prime contractor contracting with Customer for services that include the Service. Fees for any new Service or new Service feature will be effective upon making such Service available to You and your use of such Service. Lumina may increase or add new fees for any existing Service or Service feature, by giving You 30 days’ advance notice. Such notice will be posted on the Lumina website on the Service detail page for the affected Service, and will be reflected in any invoicing to you.Lumina may specify the manner in whichYou will pay any fees, and any such payment shall be subject to our general accounts receivable policies then in effect. All amounts payable by You under this Agreement will be paid without setoff or counterclaim and without deduction or withholding.
- Provision and Use of the Service.
3.1 Lumina Responsibilities.Lumina shall: (i)? maintain reasonable administrative, physical and technical safeguards for the Service in accordance with Lumina security policies; (ii) provide telephone and/or online support to User during normal business hours; and (iii) use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week,except for: (a) planned downtime of which Lumina shall give at least 24 hours’ notice via e-mail to User’s designated Administrator and which Lumina shall schedule to the extent reasonably practicable during non-peak hours as determined by Lumina; and (b)?any unavailability caused by circumstances beyond Lumina’s control, including but not limited to, acts of God, acts of government, flood, fire, earthquake, weather, civil unrest, acts of terror, strikes or other labor problems,computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software, or power systems not within Lumina’s possession or control, and network intrusions or denial of service attacks.
3.2 User Responsibilities.User will be responsible for procuring and maintaining, at its own expense, all hardware, software, communication equipment, access service, access lines, and Internet connectivity necessary for User to access and use the Service, as well as browser software that supports protocols used by Lumina to deliver the Service. User is responsible for all activities that occur under User’s accounts. User shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, protection, security, and appropriateness of all User Data; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service and User Data; (iii)?procure in advance all necessary consents and authorizations from all individuals whose names and/or other personal data are to be submitted to and processed by the Service; and (iv) comply with all applicable United States or foreign federal, state, local, or other laws, rules, regulations, treaties, and conventions in connection with its use of the Service, including, but not limited to, the Federal Trade Commission Act (15 U.S.C. § 41 et seq.), Financial Services Modernization Act (15 U.S.C. § 6801 et seq.), Health Insurance Portability and Accountability Act (42 U.S.C. § 1301 et seq.), Fair Credit Reporting Act (15 U.S.C. § 1681), and General Data Protection Act (Regulation EU 2016/679).
User shall at all times be solely responsible for maintaining and securing its systems, including User’s information technology infrastructure, computers, software, databases, and networks, whether operated directly by User or through the use of third-party services. Without limiting the foregoing, User will remain solely responsible for legal compliance of any integrated use of the Service to User’s systems, including the security of User’s data transmission portals for any reports issued from the Service, as well as all access credentials associated with third-party use of User’s systems. User will solely control the content and use User’s systems. User will be responsible for entering into binding end-user agreements that comply in all respects with, and are at least as restrictive as, this Agreement. User shall assume sole liability as to its systems interactions with all end users.
User knowingly and voluntarily agrees to defend, indemnify, and hold harmless Lumina, its members, managers, directors, officers, employees, agents, successors and assigns from and against all claims, losses, damages, judgments, and costs (including reasonable attorneys’ fees) arising out of User’s failure to comply with this Section 3.2 or any applicable United States or foreign federal, state, local, or other laws, rules, regulations, treaties, and conventions.
3.3 Use Guidelines.User shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i)?send, upload, or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy or intellectual property rights; (ii) send, upload, or store material containing software viruses, worms, Trojan horses,or other harmful computer code, files, scripts, agents, or programs; (iii) interfere with or disrupt, damage, or impair the integrity or performance of the Service or the data contained therein; (iv) remove, delete, obscure, or alter any trademarks, disclaimers, or proprietary notices from any materials included with the Service; (v) access or use the Service to conduct any competitive analysis of the Service or develop a competing product or service or otherwise to Lumina’s commercial disadvantage; (vi) use the Service to send unsolicited bulk mail, junk mail, spam or other forms of duplicative or unsolicited messages or other fraudulent activity; (vii) use the Service to store or upload any personally identifiable information or personal health information, as that term is defined by the Health Insurance Portability and Accountability Act; or (viii) bypass or breach any security device or protection used by the Service or attempt to gain unauthorized access to the Service or its related systems or networks.
User will not use the Services to make any phone call or send any email or text message that does not comply with CAN-SPAM, the Telephone Consumer Protection Act, or any other applicable federal or state law. User is solely responsible for ensuring that telephone calls made or email or text messages sent using information obtained from the Services are in compliance with CAN-SPAM, the Telephone Consumer Protection Act, or all other applicable federal or state laws.
User will not send or upload to the Service any information that is protected from disclosure by applicable law and for which User does not have the legal right to associate with the Service. User will use Lumina’s designated data transfer protocols only and will not send User Data via e-mail or other unauthorized transmissions, except as approved in writing by Lumina. User knowingly and voluntarily agrees to defend, indemnify, and hold harmless Lumina, its members, managers, directors, officers, employees, agents, successors and assigns from and against all claims, losses, damages, violations, judgments, penalties, and costs (including reasonable attorneys’ fees) arising out User’s violation of this Section 3.3.
User will not share, disclose, disseminate, or publish any information or reports obtained from the Services to third parties unless User obtains the prior express written consent from Lumina to do so.
3.4 GDPR Compliance. You hereby agree not to provide any Personal Data regarding residents of the European Union to Lumina or through the Services, except where authorized by or excluded from the restrictions of the General Data Protection Regulation (“GDPR”). “Personal Data” under the GDPR means any information relating to an identified or identifiable natural person ("data subject"). An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person. In the event you provide Lumina with Personal Data relating to a data subject that is a resident of the European Union (“GDPR data”), you will immediately notify Lumina in writing by contacting Privacy@Luminaanalytics.com. User shall be deemed to be the data controller for all such Personal Data at all times.
Userknowingly and voluntarily agrees to defend, indemnify, and hold harmless Lumina, its members, managers, directors, officers, employees, agents, successors and assigns from and against all claims, losses, damages, violations, judgments, penalties, and costs (including reasonable attorneys’ fees) arising out GDPR data that you provide to Lumina and any violation of the GDPR.
3.5 FCRA. Lumina is not a consumer reporting agency as defined in the Fair Credit Reporting Act (FCRA). Do not use the Services to evaluate or make decisions about employment, tenant screening, government benefits, or any other purpose(s) covered by the FCRA. Lumina gathers information from public sources and does not identify the individuals you submit or verify the identity of individuals you submit. It is up to you as the User to verify the accuracy of the information and the identity of the individuals. The Service is not a substitute for your own due diligence, especially if you have concerns about a person's criminal history.?Lumina does not?evaluate each piece of data, and makes no warranties or guarantees about the information offered. You agree not to use the Services for FCRA purposes and agree that You will only use the information accessed through the Services for research, fraud detection, risk or physical safety detection, law enforcement reasons,or intelligence purposes.
3.6 Third-Party Providers. Certain third-party providers, some of which may be listed on pages within Lumina’s website, offer products and services related to the Service, that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality within the user interface of the Service through use of the Service’s application programming interface. Lumina does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Lumina as “certified,”“validated,” or otherwise. Any exchange of data or other interaction between User and a third-party provider, and any purchase by User of any product or service offered by such third-party provider, is solely between User and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Service) may be offered by Lumina to User, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by User in connection with a separate purchase by User of such additional functionality. User’s use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of this Agreement.
3.7 Export Control. User will not, unless it has obtained all necessary legal permissions, export or otherwise disclose any technology or software accessed as part of the Service to any destination that is prohibited by the United States government or to any foreign national that is prohibited by the United States government, Further, User shall not access and use the Service if User is located in any jurisdiction or territory in which the provision of the Service is prohibited under United States or other applicable law or treaty. User warrants that User is not named on any U.S. government list of persons prohibited from receiving U.S. exports or transacting with an U.S. person, and that User is not a national of, or a company registered in, any jurisdiction prohibited by U.S. export laws.
- Proprietary Rights.
4.1 Reservation of Rights.User acknowledges that in providing the Service, Lumina utilizes (i) the Lumina name, the Lumina logo, the domain name, the product and service names associated with the Service, including but not limited to Radiance, and other trademarks and service marks; (ii)?certain audio and visual information, documents, software, and other works of authorship; and (iii)?other technology, software, hardware, products, processes, algorithms, user interfaces, databases, know-how and other trade secrets, techniques, designs, invention, and other tangible or intangible technical material or information (collectively, “Lumina Technology”) and that the Lumina Technology is covered by IP Rights owned or licensed by Lumina (collectively, “Lumina IP Rights”). User acknowledges and agrees that the Lumina IP Rights belong to Lumina and that other than as expressly set forth in this Agreement, no license or other rights in or to the Lumina Technology or Lumina IP Rights are granted to User, and all such licenses and rights are hereby expressly reserved.Upon expiration or earlier termination of this Agreement, User shall retain no rights of any nature with respect to the Service, the Lumina Technology, or the Lumina IP Rights. All rights, title and interest in and to the Lumina IP Rights will remain with Lumina exclusively at all time.
4.2 Improvements and Resultant Data. Lumina shall also own all improvements to and derivatives of the Lumina Technology and Lumina IP Rights, whether or not arising out of data that User provides to Lumina when using the Services. Lumina shall at all time be the sole and exclusive owner of any and all IP Rights created by Lumina for purposes of this engagement including but not limited to creation of all behavioral risk profiles, databases, integration components, ecosystems and databases, or other technology and Services created through activities of Lumina. User grants to Lumina a limited, worldwide license to use, host, store, reproduce, modify, and create derivative works from any User Data uploaded to the Service by User.
4.3 Suggestions. Throughout the term of this Agreement, User shall communicate to Lumina in writing any and all modifications, changes, or improvements to the Service suggested by any person or entity to User, and all significant errors or incompatibilities experienced by User while using the Service. User agrees that any and all information, inventions, discoveries, or other matters communicated to Lumina under this Section 4.3 shall be deemed to be the property of Lumina, and User agrees to execute and deliver to Lumina, at Lumina’s request, any further documentation necessary to effectuate ownership of such information, inventions, discoveries, or other matters by Lumina
4.4 Notice to United States Government End Users. If the U.S. federal government is the ultimate recipient of the Service, the following provision applies: Government technical data and software rights related to the Service include only those limited and restricted 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 Lumina 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.
5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the User Data, the Service, the Lumina Technology, software source code and specifications, business and marketing plans, technology, and technical information, product designs, and business processes. Confidential Information (except for User Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) is known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
5.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement without the Disclosing Party’s prior written permission.
5.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
5.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in violation of this Section 5, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek preliminary and permanent injunctive relief, without bond, to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies at law are inadequate.
5.6 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Notwithstanding the foregoing,User grants to Lumina a limited, royalty free, non-exclusive, revocable, non-sublicensable, and non-transferable license to use such User names, logos, trademarks, and/or service marks (the “User Trademark(s)”) to identify User as a user of Radiance in Lumina’s marketing and sales materials. Following termination of access to Radiance, Lumina’s right to use any User Trademark will terminate and any and all uses of a User Trademark by Lumina must cease immediately. Lumina will not manufacture, sell, distribute (for free or otherwise) or license the manufacture and/or sale of, any promotional or other merchandise that bears User Trademarks. Lumina agrees that it will not own, nor claim any ownership in or to the User Trademarks. Lumina recognizes the great value of the publicity and goodwill associated with the User Trademarks and, in such connection, acknowledges that such goodwill belongs exclusively to User. User warrants and represents that it has the authority to grant the license above and that Lumina’s use of User Trademarks in compliance with this Agreement will not infringe upon any third-party rights.
- Warranties & Disclaimers.
6.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Lumina represents and warrants that (i)?it owns or otherwise has sufficient rights to permit User to access and use the Service; and (ii) the Service and Lumina Technology do not infringe theIP rights of any third party. User represents and warrants it holds the necessary legal rights to use the Service and to send or upload User Data to the Service, without misappropriation or violation of the privacy or other rights of third parties.
6.2 Disclaimer. The representations and warranties made by Lumina in this Agreement are made solely to User. Except as otherwise provided in this Agreement, Lumina provides, and User accepts, the Service in “AS-IS” CONDITION AND “WITH ALL FAULTS”; and
TO THE FULLEST EXTENT PERMITTED BY LAW, LUMINA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE LUMINA WEBSITE AND THE SERVICE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LUMINA MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES, THE LUMINA WEBSITE OR SERVICE CONTENT,THE LUMINA WEBSITE OR SERVICE ACCESSIBILITY, OR THE CONTENT OF ANY WEBSITES LINKED TO THE SERVICES AND ITS ACCESSIBILITY, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE OR LUMINA’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR SERVICE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR SERVICE.
AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO CERTAIN OF THE ABOVE EXCLUSIONS MAY NOT APPLY.
Disclaimer for Search Results and Reports:Search Results are obtained through public information on the Internet, and such public information may contain errors. Lumina is not the source of the public information or Search Results, nor are the Services a comprehensive compilation of such information. You should not rely on the Search Results without independently verifying such information. Lumina is not associated or affiliated with, or viewed as endorsing or sponsoring any web site that is included in the Search Results. Lumina does not review the content of the Search Results and disclaims responsibility for the content and information therein. Lumina does not grant User rights in the content included in Search Results.? User may not use content included in Search Results unless User obtains permission from the content owner or User is otherwise permitted by law.? Lumina provides no direction or information to User regarding User’s right to use content included in Search Results.In addition, Lumina does not guarantee the accuracy or risk associated with the prioritization scoring that may be generated by the Services. Lumina does not make any determination on the risk of an individual, and does not review the content surrounding search results to verify the accuracy of the scoring or associated risk. Client is responsible for verifying the accuracy of such information and making a determination on any and all risk.
Depending on Customer’s subscription to Services, Search Results may be limited to archived web pages only, or may include data captured by proprietary third-party technology from deep web and darknet sites (ie, those sites that cannot be indexed by a search engine such as Google, including database-driven sites and form-based webpages).
- INDEMNIFICATION. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD LUMINA, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR RESPECTIVE MANAGERS AND MEMBERS, OFFICERS, AGENTS, PARTNERS AND EMPLOYEES, HARMLESS FROM AND AGAINST, ANY LOSS, DAMAGE, LIABILITY, CLAIM, OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE SERVICE, AND/OR ARISING FROM A BREACH OF THIS AGREEMENT AND/OR ANY BREACH OF YOUR REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE. NOTWITHSTANDING THE FOREGOING, LUMINA RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY LUMINA, AND YOU AGREE TO COOPERATE, AT YOUR EXPENSE, WITH LUMINA’S DEFENSE OF SUCH CLAIMS. LUMINA WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING WHICH IS SUBJECT TO THIS INDEMNIFICATION UPON BECOMING AWARE OF IT.
LUMINA AGREES TODEFEND, INDEMNIFY AND HOLD CUSTOMER, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR RESPECTIVE MANAGERS AND MEMBERS, OFFICERS, AGENTS, PARTNERS AND EMPLOYEES, HARMLESS FROM AND AGAINST, ANY LOSS, DAMAGE, LIABILITY, CLAIM, OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF LUMINA’S FRAUD OR INTENTIONAL MISCONDUCT. CUSTOMER WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING WHICH IS SUBJECT TO THIS INDEMNIFICATION UPON BECOMING AWARE OF IT.
- Limitation of Liability.
8.1 Limitation of Liability.IN NO EVENT SHALL LUMINA OR ITS MEMBERS, MANAGERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL,EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE LUMINA WEBSITE OR SERVICE, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF LUMINAHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, LUMINA’S AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO LUMINA FOR THE SERVICES DURING THE PERIOD OF THIRTY DAYS PRIOR TO ANY CAUSE OF ACTION ARISING.
USER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF LUMINA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. LUMINA HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE USER WITH THE RIGHTS TO ACCESS AND USE THE SERVICE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAW APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. HOWEVER, IN SUCH JURISDICTIONS, LUMINA’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."?
8.2 Limitation of Action. Except for actions for non-payment or breach of either party’s IP rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.
- Term & Termination.This Agreement will commence on the Effective Dateand as set forth in a Statement of Work executed by the Parties. Either Party may terminate this Agreement or any Statement of Work, without cause, at any time by providing thirty (30) days prior written notice of the intent to terminate to the other Party. User shall be liable to Lumina for any fees incurred prior to the termination of the Agreement.
Either Party may terminate this Agreement on written notice to the other Party if the other Party (i) is in material breach of its obligations hereunder and fails to cure the breach within thirty (30) days of such written notice, or (ii) becomes insolvent, makes an assignment for the benefit of creditors, becomes the subject of any bankruptcy, reorganization, or arrangement proceeding, or defaults in any obligation, which default would foreclose such Party from exercising its right or prevent it from paying its obligations hereunder, then such action will be a default hereunder and this Agreement may be terminated immediately by written notice to the defaulting Party.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, LUMINA RESERVES THE RIGHT TO, IN IT’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF LUMINA’S WEBSITE AND THE SERVICE, TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION, AND LUMINA MAY TERMINATE YOUR USE OR PARTICIPATION IN THE WEBSITE AND THE SERVICE, DELETE YOUR PROFILE, WITHOUT WARNING, IN LUMINA’S SOLE DISCRETION.
In order to protect the integrity of Lumina’s website and Service, Lumina reserves the right at any time in its sole discretion to block certain IP addresses from accessing the Lumina website and Service.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
If Lumina terminates or suspends your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, Lumina reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
9.1Lumina reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Lumina shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
9.2 Surviving Provisions. The following provisions shall survive the expiration or earlier termination of this Agreement: Sections 1, 4, 5, 6, 7, 8, 9, and 10.
- General Provisions.
10.1 State Tax: Unless otherwise stated, Lumina’s charges do not include any taxes, levies, duties or similar government assessments, including value-added, sales, use or other taxes by any local, state, or foreign jurisdiction. In the event theService istaxable, User will besolely responsible for all suchtaxes incurred.
10.2 Relationship of the Parties. The parties shall at all times act as independent contractors and service provider/subscriber. Nothing contained in this Agreement shall be deemed to constitute a partnership or joint venture between the parties, nor shall any party be deemed the employee, agent, or representative of the other. Neither party shall have any authority whatsoever, whether express or implied, to assume, create, or incur any obligation or liability whatsoever on behalf or in the name of the other, or to bind the other in any manner whatsoever. Neither party shall hold itself out contrary to the provisions of this Section.
10.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. The Service, results of the Service or use of the Service, and any information furnished to or procured by User by or through the Service is solely for the benefit of User, and no third party is entitled to rely on the same.
10.4 Notices. Any notice or other communication which is required or permitted under this Agreement shall be in writing and shall be deemed to have been given, delivered, or made, as the case may be (notwithstanding lack of actual receipt by the addressee), (i) on the date sent if delivered personally or by email, cable, telecopy, telegram, telex, or facsimile (which is confirmed), or (ii)?three (3) business days after having been deposited in the United States mail, certified or registered, return receipt requested, sufficient postage affixed and prepaid, or (iii) one (1) business day after having been deposited with a nationally recognized overnight courier service (such as by way of example, but not limitation, U.S. Express Mail, Federal Express, or Airborne), to the Parties at the addresses first above stated, or, as to Customer, at the Customer address or e-mail as registered by Customer with Lumina (or at such other address for a party as shall be specified by like notice).
10.5 Waiver. No failure or delay on the part of either party in exercising any right or remedy with respect to a breach of this Agreement by the other party shall operate as a waiver thereof or of any prior or subsequent breach of this Agreement by the breaching party, nor shall the exercise of any such right or remedy preclude any other or future exercise thereof or exercise of any other right or remedy in connection with this Agreement. Any waiver must be in writing and signed by the waiving party.
10.6 Severability. If any section, subsection, or provision or the application of such section, subsection, or provision of this Agreement is held invalid, illegal, or unenforceable, the remainder of this Agreement and the obligation of such section, subsection, or provision to persons or circumstances other than those to which it is held invalid, illegal, or unenforceable shall not be affected by such invalidity, illegality, or unenforceability.
10.7 Assignment. Neither Lumina nor User may assign any of its rights or delegate any of its duties under this Agreement, directly or indirectly by operation of law or otherwise, without the prior written consent of the other. Any attempted assignment in violation of this Section shall be void. This Agreement shall inure to the benefit of and be binding upon the parties to this Agreement, and their respective legal representatives, trustees, successors, and permitted assigns.
10.8 Applicable Law; Attorneys’ Fees to Prevailing Party. This Agreement shall be governed in its construction, interpretation, and performance by the laws of the State of Florida and the United States, as applicable, without reference to law pertaining to choice of laws or conflict of laws. In the event of any litigation arising out of or relating to this Agreement or the breach, termination, validity, or enforcement of this Agreement, venue shall be in the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, or the Tampa Division of the United States District Court for the Middle District of Florida, as applicable. In the event of any litigation arising out of or relating to this Agreement or the breach, termination, validity, or enforcement of this Agreement, the prevailing party shall be entitled to recover all costs and reasonable attorneys’ fees incurred, including, without limitation, costs and attorneys’ fees incurred in any investigations, trials, bankruptcies, and appeals.
10.9 Dispute Resolution.
In the event of any dispute, controversy, or claim arising out of or related to this Agreement or to a breach hereof, whether based in contract, tort, or statute, including its interpretation, scope, formation, performance, or termination (“Dispute”), the Parties shall attempt to settle such Dispute by amicable discussions between two senior executives of Lumina and Client having the specific authority to settle the Dispute within fifteen (15) days after one Party giving notice to the other of existence of the Dispute.
If no settlement is reached by this meeting of the Parties, the Parties shall attempt in good faith to resolve the dispute through mediation in Tampa, Florida, or such other place as the Parties may otherwise agree, with the assistance of a mutually agreeable mediator. Such mediation will take place with ninety (90) days after notice of the Dispute.
If no settlement is reached at mediation, then either Party shall be free to commence litigation pursuant to the terms of this Agreement. The provisions of this Section shall not apply to breaches of Sections 2.2, 2.3, 5.1, and 6, for which the non-breaching Party may proceed immediately to seek temporary and/or preliminary injunctive relief.
IN THE EVENT ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT, ALL ISSUES OF LAW AND FACT SHALL BE DETERMINED BY THE COURT AND ANY AND ALL RIGHT TO A JURY TRIAL IS HEREBY EXPRESSLY WAIVED BY THE PARTIES.
10.10 Construction. This Agreement shall not be construed more strictly against anyParty regardless of who is responsible for its drafting. Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular and the singular include the plural. Wherever the context so requires, the masculine shall refer to the feminine, the feminine shall refer to the masculine, the masculine or the feminine shall refer to the neuter, and the neuter shall refer to the masculine or the feminine. The captions of this Agreement are for convenience and ease of reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement or the intent of any of its provisions.
Entire Agreement. This Agreement, including all exhibits and addenda hereto and Statements of Work hereunder, constitutes the entire agreement between the Parties relating to the subject matter hereof. All prior understandings and agreements between the Parties relating to the subject matter hereof are merged in this Agreement, which alone and completely expresses their understanding.This Agreement may not be altered, amended, or changed except by written instrument signed by and on behalf of each of the Parties. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto or Statement of Work hereunder, the terms of such exhibit, addendum, or Statement of Work shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Restrictions.User and Lumina agree that any arbitration shall be limited to the Dispute between Lumina and User individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration.?User and Lumina agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of any of Lumina’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief. If this Section is found to be illegal or unenforceable then neither you nor Lumina will elect to arbitrate any Dispute falling within that portion of this Section found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and you and Luminaagree to submit to the personal jurisdiction of that court.
10.11 Construction. This Agreement shall not be construed more strictly against any party regardless of who is responsible for its drafting. Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular and the singular include the plural. Wherever the context so requires, the masculine shall refer to the feminine, the feminine shall refer to the masculine, the masculine or the feminine shall refer to the neuter, and the neuter shall refer to the masculine or the feminine. The captions of this Agreement are for convenience and ease of reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement or the intent of any of its provisions.
10.12 Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties relating to the subject matter hereof. All prior understandings and agreements between the parties relating to the subject matter hereof are merged in this Agreement, which alone and completely expresses their understanding.Lumina may modify these terms, and will post notice of the same its website.? User is responsible for reviewing these terms regularly.? If User does not agree to the modified terms, User should discontinue using the Service. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, the terms of such exhibit or addendumshall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a User purchase order or in any other User order documentation (whether or not signed by Lumina) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, unless Lumina executes a written agreement with User via handwritten signature that specifically identifies this Agreement by title and effective date and expressly states Lumina’s intention to supersede the same.
10.13 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original instrument, but all of which counterparts together shall constitute one and the same instrument.
10.14 ELECTRONIC CONTRACTING. Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
10.15 ELECTRONIC SIGNATURES. Users are allowed to transmit and receive valid electronic signatures in the United States under the Electronic Signatures in Global and National Commerce Act (E-Sign Act) of 2000 and the Uniform Electronic Transactions Act (UETA) of 1999 as adopted by individual states. Users’ signatures and identities are not authenticated by Lumina Analytics’ websites. This Agreement and associated Statement(s) of Work and related documents may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent, to include selecting an “Accept these Terms” or “I Accept” button). By selecting such button you are signing this Agreement electronically. You agree that your electronic signature is the legal equivalent of your manual signature on this Agreement. By selecting such button, User consents to be legally bound by this Agreement. User further agrees that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, or to otherwise provide Lumina in accessing or making any transaction regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes signature (hereafter referred to as "E-Signature"), acceptance and agreement as if actually signed byyou in writing. User also agrees that no certification authority or other third party verification is necessary to validateUser’s E-Signature and that the lack of such certification or third party verification will not in any way affect the enforceability of User’s E-Signature. User also represents that the individual accepting this Agreement is authorized to enter into this Agreement for User and that Userwill be bound by the terms of this Agreement. Userhas the right to opt out of signing this Agreement electronically with E-Signature by notifying Lumina in writing by certified mail.
10.16 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
CONTACT US. In order to resolve a complaint regarding the Service or to receive further information regarding use of the Service, please contact Luminaas set forth as follows:
501 E. Kennedy Blvd.
Tampa, FL 33602
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