These terms were last updated on July 05, 2021.
BY CLICKING “ACCEPT” “SIGN UP” “LOG IN” (OR ANY SIMILAR LANGUAGE), AND/OR BY ACCESSING AND/OR USING THE PLATFORM OR THE ADDITIONAL SOFTWARE (AS DEFINED BELOW), YOU CONSENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE PLATFORM. IN ADDITION, YOU CONSENT TO THE USE OF ELECTRONIC MEANS AND/OR RECORDS TO PRESERVE YOUR ACCEPTANCE OF THIS AGREEMENT AND STORING INFORMATION RELATED TO THIS AGREEMENT AND YOUR USE OF THE PLATFORM. YOU ALSO AGREE THAT WE MAY PROVIDE YOU WITH NOTICES IN ACCORDANCE WITH THIS AGREEMENT.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such company or other legal entity to the terms and conditions contained herein, in a way that the terms “you”, “your” or “Client” shall refer to such company or other legal entity. If you do not have such authority, or if you do not agree to the terms and conditions of this Agreement, you must refrain from accepting this Agreement and may not access and/or use the Platform. We recommend saving a copy of this Agreement for your records.
You may not access the Platform if (a) you do not agree to the terms and conditions of this Agreement, and/or (b) you are our direct competitor, as shall be determined at our sole and absolute discretion, unless you received our prior written consent, and/or (c) you accept this Agreement for the sole purpose of analysing and/or testing its availability, performance or functionality, or for any other competitive purposes, and/or (d) you are located and/or work in a black-listed country as established by OFAC, or considered a Specially Designated National (“SDN”) by OFAC.
- This Agreement has some capitalised terms which have special meanings. These capitalised terms and their respective meanings are set out in the Glossary in the Schedule.
Ordering, Configuration and Access to the Platform
- Subject to your compliance with the terms and conditions of the Agreement, we grant to you a personal, non-exclusive, non-transferable right to access and use the platform available at www.lunalabs.io and/or any additional software owned and operated by Luna Labs (the “Platform” and the “License”, respectively). The additional software can only be used as part of your use of the Platform.
- Except for End Users, you may not authorise any Third Party to access and/or use the Platform on your behalf, except where we have given our prior written consent and provided a mechanism for Third Parties to access the Platform on your behalf.
- In addition to the terms and conditions of this Agreement, you agree to comply with and follow our instructions regarding the on-boarding and registration process (On-Boarding).
- You may start using the Platform as soon as we give you access to it. You can continue to use the Platform only during the Licence Period.
- Other than as expressly stated otherwise in this Agreement, you acknowledge that it is your sole responsibility to determine that the Platform meets your business requirements and, to the fullest extent permissible by law and without limitation, we give no warranties that the Platform will be fit for purpose, of satisfactory quality, uninterrupted or error free save where expressly set out in the Agreement.
Price and Payment
- In order to access the Platform, you are required to pay the Licence Fees offered to you as part of the registration process or as agreed between the Parties in writing. All fees are due and payable either within 30 days of the date of invoice or such other period explicitly agreed by us in writing.
- Upon any termination or expiration of the Agreement, you will pay without delay, all fees and costs accruing before the termination or expiration date, and any other amounts you owe us under the Agreement.
- You shall bear all costs (including, without limitation, any collection costs, bank fees, and/or legal fees) related to or resulted from any overdue amount(s).
- All overcharges or billing disputes must be reported within 30 days of date of invoice. Failure to do so will mean you have accepted our invoice.
Confidentiality and Publicity
- The Parties agree and understand that in order to perform under this Agreement, each (the “Disclosing Party”) may provide the other (the “Receiving Party”) with certain Confidential Information relating to it and/or to its respective affiliates and/or business partners. The Disclosing Party’s Confidential Information shall include all information and material related to its business, products, services, employees, business partners, subsidiaries and/or affiliates. Confidential Information shall not be subject to the confidentiality obligations provided herein if such Confidential Information:
- is or becomes publicly known other than through any act or omission of the Receiving Party; or
- was in the Receiving Party’s lawful possession before the disclosure without obligation of confidentiality; or
- is lawfully disclosed to the Receiving Party by a Third Party without restriction on disclosure; or
- is independently developed by the Receiving Party without reference to the Confidential Information and which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
- Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any Third Party or use the other’s Confidential Information for any purpose other than for the purposes of its performance under the Agreement.
- Each Party shall disclose the other Party’s Confidential Information only to its representatives who has a “need to know” in order for such Party to be able to perform under this Agreement, and will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its representatives in violation of this Agreement or used for any purpose other than the performance of its obligations hereunder, and shall immediately, upon become aware of any breach of confidentiality of the other’s Confidential Information, notify the Disclosing Party of such breach and co-operate with the Disclosing Party to help regain control of the Confidential Information if it is lost, and prevent further unauthorised use or disclosure of it.
- Neither Party shall be responsible for any loss, destruction, alteration, or disclosure of Confidential Information caused by any Third Party without the participation and/or knowledge of a party hereto.
- You agree that we may (a) issue press releases regarding your selecting us as a provider of the Platform and, for this purpose, may include your logo and/or name in any such releases and/or on our website; (b) include details of your use of the Platform as a case study and/or client reference when marketing to other clients and prospects and for participating in trade industry events or awards.
Data Protection and Information Security
- You hereby represent and warrant that the Client Data is not and will not include any end user level data.
- Each Party will comply with its respective obligations under any relevant Data Protection Laws in respect of the Agreement, including with respect to the Client Data, your use of the Platform, and the processing of personal data (if any). For the purpose of this Clause, “Data Protection Laws” means any applicable data protection laws, including but not limited to, UK Data Protection Laws and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable European Union regulation relating to privacy; and “UK Data Protection Laws” means any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
- We shall use all our reasonable commercial endeavours to safeguard Client Data from unauthorised or unlawful processing, or accidental loss, destruction or damage by complying with our own internal information security policies and with such of your security policies as are mutually agreed in writing.
Intellectual Property Rights
- You may not use the Platform for any other purpose without our prior written consent and you acknowledge that additional fees may be payable on any change of use approved by us. You are not permitted to provide access to or share the Platform or the additional software with any third party without our express consent and you agree to delete all copies of the Platform and the additional software upon expiry or termination of the Licence.
- You undertake you shall not (and shall not permit any End User or Third Party to) copy, adapt, reverse engineer, decompile, disassemble, modify, or make error corrections to the Platform in whole or in part, except to the extent permitted by law or with our prior written consent.
- We and/or our licensors own all intellectual property rights in and to the Platform and the additional software. Except as expressly stated herein, this Agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, designs, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Platform or any related documentation.
- You shall own all rights, title, interest or any other intellectual property right in and to all of the Client Data and the creatives (and/or other content) you and your End Users create through your designated account in the Platform, excluding any content or software connected to the Platform and/or the additional software. You shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of it.
- Except as expressly stated herein, this Agreement do not grant us any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Client Data and all such rights are expressly reserved to you (or the applicable End User(s)). You grant us a non-exclusive, royalty-free, perpetual licence to use the Client Data and the creatives (and/or other content) you and your End Users create through your designated account in the Platform for the purposes of preforming under this Agreement and the providing the Platform.
Representations and Warranties
- You warrant, represent, and undertake that you:
- Have all necessary right, power, and authority to enter into this Agreement and to perform the acts required hereunder, including but not limited to, with respect to the Client Data;
- Shall comply with all laws, regulations, regulatory policies, guidelines or industry codes (including responsibility for obtaining all licences, clearances and consents) which apply to your use of the Platform and performance under this Agreement (“Applicable Law”), and acknowledge that we are merely a provider of access to the Platform and accept no responsibility for your use thereof or compliance with Applicable Law (other than to the extent we are required by applicable statutory law);
- Or anyone on your behalf will not use the Platform for any unlawful purposes and/or introduce any offensive, defamatory, illegal, infringing and/or obscene material via the Platform;
- Or anyone on your behalf will not do, or omit to do, anything which disparages, defames, or puts into disrepute Luna Labs, its intellectual property, goodwill and/or the Platform; and
- you are not located and/or work in a black-listed country as established by OFAC or considered a Specially Designated National (“SDN”) by OFAC.
- Subject to the remaining provisions in this Clause, we warrant that:
- subject to completion of the On-Boarding the Platform will perform substantially in accordance with any specifications;
- the Platform shall not infringe any third party’s intellectual property rights (save that we shall have no liability in respect of content to the extent that such content is a reproduction or adaptation of content supplied by you);
- we have the authority and right to license all rights to and in the Platform as set out in this Agreement.
- Subject to Clause 8, if the Platform does not meet the warranties in Clause 7.2, we will, at our sole discretion, either:
- modify, improve, or update the Platform to make it conform;
- obtain such clearances, licences and consents at our cost as may be necessary to enable you to use the Platform; or
- return any fees paid for the Platform for the period that it failed to conform.
- Except for a breach of Clause 7.2.2 the remedies set forth in this Clause 7.3 shall be your sole and exclusive remedy for any breach of such warranties under this Agreement.
- We do not warrant that the Platform will be uninterrupted, error-free, or entirely secure.
- To the fullest extent permissible by law and without limitation, we give no warranties that the Platform will be fit for purpose, of satisfactory quality, uninterrupted or error free save where expressly set out in the Agreement.
- We will use reasonable endeavours to maintain the Platform free of viruses, but we do not warrant or represent that no viruses or other contaminating or destructive materials or elements will be transmitted to you or that your computer system will not be damaged or that defects will be corrected. Accordingly, we recommend that you have your own local anti-virus, anti-spam and anti-spyware programs, that they are of good quality and that they are kept up to date. You are therefore advised to implement and operate your own commercially reasonable and up-do-date virus prevention precautions and measures when accessing the Platform.
Limitation of Liability
- Neither Luna Labs nor its affiliates, directors, officers, employees, or agents will be liable for any indirect, punitive, special, incidental or consequential damages in connection with or arising out of this Agreement including, without limitation, loss of profits, use, data or other economic advantage, however it arises and on any theory of liability, whether in an action for contract, strict liability or tort (including negligence), or otherwise, whether or not previously advised of the possibility of such damages and notwithstanding the failure of the essential purpose of any remedy.
- To the extent permitted by Applicable Law, and except in the event of wilful misconduct, fraudulent activity, and/or gross negligence, Luna Labs and its representatives’ total liability arising out of or in connection with this Agreement shall exceed the lower of £200,000 or a sum equal to 100% of the amount actually paid by You to Luna Labs in the 12 months’ period preceding the date upon which the claim arose.
- Neither Luna Labs nor its affiliates, directors, officers, employees, or agents will be liable to You or to any Third Party under this Agreement:
- For use not consistent with our applicable instructions and documentation; and/or
- If our performance of our obligations under this Agreement is prevented or delayed directly or indirectly by any act or omission of you, your agents, subcontractors, consultants, employees, or Third Parties.
- A modification of the Platform, or use of the Platform in combination with any Third Party Software or data, by you or your agents; or
- For a modification or use of the Platform in combination with any Third Party Software or data, by you or on your behalf; or
- For your use of the Platform after notice of an alleged or actual infringement has been given to you by us or by any appropriate authority; or
- where a claim for infringement arises directly in respect of a feature which was specified by you or on your behalf.
- For any failures or shortcomings in the provision of the Platform caused by, arising out of or due to:
- your connection to the internet;
- patents of which we are not aware; or
- accident, abuse or use of the Platform in a manner inconsistent with this Agreement or resulting from events beyond our reasonable control.
- Except as expressly and specifically provided in this Agreement, all warranties, conditions, and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
- You shall defend, indemnify and hold us, our employees, officers and/or directors harmless against claims, actions, proceedings, losses, liabilities, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with: (a) your (or that of your End Users) access to or use of the Platform; (b) claims from a third party that the Client Data infringes the intellectual property rights or other rights of a third party; (c) any breach of this Agreement by you; and/or (d) any breach by you of Applicable Law, including, without limitation, data protection, consumer protection, employment or other law or regulation.
Term and Termination
- The Agreement will come into effect on the Commencement Date and shall remain in effect for the licence period (the period during which you used the Platform or as specified between the Parties in writing) or until terminated in accordance with the Agreement (the “Term”).
- Unless agreed otherwise in writing between you and us, the Agreement may be terminated for convenience by either Party giving notice at least 30 days to the other Party.
- Notwithstanding the above, we may terminate the Agreement and suspend access to any part of the Platform immediately without notice if: (a) you are in breach of this Agreement (including, but not limited to, failure to pay the License Fees or any other applicable fees when due); (b) your use of the Platform has or is likely to have an adverse impact on us, our clients, or any other third party. Suspension in accordance with the foregoing shall not relieve you of any of your liabilities or obligations under this Agreement.
- Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate the Agreement immediately on giving written notice to the other if:
- the other Party commits a material or persistent breach of any of its obligations under the Agreement and (in the case of a breach capable of being remedied) does not remedy such breach within 30 days of receiving from the other Party written notice of the breach and a request to remedy the breach;
- the other Party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
- the other Party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies, or the solvent reconstruction of that other Party; or
- any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clauses 10.4.1 to 10.4.3 (inclusive).
- In addition, you acknowledge that from time to time during the Term we may apply updates or upgrades to the Platform, and that such updates or upgrades may, subject to Clause 11.4, result in changes to the appearance and/or functionality of the Platform.
- You shall not be subject to any additional charges arising out of the application of the update or upgrade, save where:
- the update or upgrade introduces new functionality to the Platform;
- you are given the opportunity whether to accept such new functionality and any additional changes associated with such functionality (after, if applicable, any free trial period) or not; and
- any decision by you not to pay the charges for the new functionality will not prejudice your access to and use of the rest of the Platform.
Governing Law and Jurisdiction
Any claim, dispute, legal proceedings, or litigation arising in connection with this Agreement is and will be governed by and construed according to the laws of England and Wales and the Parties hereby agree that any claim, dispute, legal proceeding, or litigation arising in connection with this Agreement shall be exclusively settled by binding arbitration of the International Chamber of Commerce (the “ICC Rules”) by one arbitrator appointed in accordance with the ICC Rules (the “Arbitrator”) in the English language on an expedited confidential basis and result in an award within no more than 60 days. The award passed by the Arbitrator shall be final and binding on both Parties, enforceable in any court of competent jurisdiction and any motion to enforce or vacate an arbitration award under this agreement shall be kept confidential to the maximum extent possible. submit to the exclusive jurisdiction of the courts of England and Wales in relation to any dispute arising therefrom, including both contractual and non-contractual disputes without regard to the conflict of law provisions thereto and any arbitration shall take place in the city of London.
Nothing contained herein shall prevent either Party from applying to any court of law to obtain injunctions, equitable relief, or any equivalent temporary remedy, against the other Party, in order to restrain the breach of any restrictive covenants pursuant to this Agreement. Nothing contained herein shall prevent Luna Labs from applying to any court of law to obtain any temporary or final relief with respect to claims concerning non-payment of invoices. The Parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
- You may not resell, transfer, assign or, sub-contract the Agreement or any rights and obligations thereunder without our prior written consent, and any attempt to do so will be null and void. All terms and conditions in this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees, successors, and assigns.
13.2.1 Any notice under the Agreement must be in writing and must be delivered by hand or sent by recorded delivery to the address specified in the Agreement, or by email to the email address notified by a party for such purposes or to such other address as may have been notified by a party for such purposes.
13.2.2 A notice delivered by hand or by recorded delivery will be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9am on the first Business Day following delivery). A notice sent by e-mail will be deemed to have been received when sent (or, if despatch is not in Business Hours, at 9am on the first Business Day following despatch), unless the sender receives a response to the effect that the e-mail has not been received or the recipient is not available.
- No failure by either party to enforce any rights under the Agreement shall constitute a waiver of such right then or in the future. Any waiver must be in writing and signed by an authorised representative of the waiving party.
- If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to give effect to the economic intent of the parties, and the remainder of this Agreement will continue in full force and effect.
- A person who is not a party to the Agreement has no right or benefit under or to enforce the Agreement whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
- We are an independent contractor and neither we nor any of our personnel assigned to provide any services to you under this Agreement will be, or be deemed to be for any purpose, an employee or agent of yours.
- It is hereby agreed that Clauses 2, 3, 4, 8, 10, 12, and 13 shall survive any expiration or termination of this Agreement, as applicable. Provided, however, that the confidentiality obligations mentioned in Clause 4 shall survive an additional period of three (3) years from such expiration or termination date.
SCHEDULE – GLOSSARY
Business Day means any day (other than a Saturday or Sunday) on which banks are open for the conduct of normal banking business in the City of London.
Business Hours means 9.00am to 5.30pm local UK time, on a Business Day.
Client means you, a subscriber to the Platform.
Client Data means data supplied, input or uploaded by or provided under licence to you and/or End Users in using the Platform.
Confidential Information means any non-public information, documentation, materials, know how, trade secrets or data in any form which is designated as being “proprietary”, “confidential” or “secret” or could reasonably be understood by a reasonable person to be confidential. The term “Confidential Information” shall also include any information not publicly available concerning the products, services, finances or business of a party.
End User means any user that accesses to the Platform on your behalf, including but not limited to, employees of Company and/or employees of any third-party developer (“Development Partner”) provided you have notified us in advance of the Development Partner, and we have confirmed in writing they can access the Platform.
Minimum EULA Requirements: those terms which we may require you to include within the end user licence agreement between you and your End Users, as notified to you in writing by us and amended from time to time.
Third Party means any legal person other than you and us.
Third Party Software means any software, material or applications provided as part of the Platform, the intellectual property rights in which are owned by a party other than us.