This agreement is between LunaTech, Inc., a California corporation (sometimes referred to as “us,” “our,” or “LunaTech”) and the entity signing a LunaTech “Service Order” incorporating these terms (sometimes referred to as “you,” “your,” or “Customer”).
We agree as follows:
a. Service Descriptions
The services to be delivered by LunaTech (the “Services”) and the fees for those Services are identified in the Service Order you signed. Those Services and the specific terms applicable to them are described in one or more of the Service Descriptions available at the following LunaTech web page:
Except for Supplemental Services or Project Services (described below), and unless otherwise agreed in writing, the services we will deliver to you are limited to those Services specifically identified in the Service Order and described in the Service Descriptions. In the event of any conflict between the terms of a Service Description or a Service Agreement for Project Services and the these Terms of Service, the terms in the Service Description or the Service Agreement for Project Services control.
b. Additional Services
“Supplemental Services” are limited, additional services and equipment you may need on a “one-off” or emergency basis that are not included within the scope of the Services described in the Service Descriptions or in any Service Agreement for Project Services (described below). You will incur additional Service Fees for Supplemental Services. We will notify you of any such additional Service Fees and will obtain your approval prior to providing them. However, we have no obligation to determine the need for or to provide any Supplemental Services. All Supplemental Services are provided on an “as-is” basis and include no warranties of any kind, whether express or implied. In addition, if we determine that any additional services you request would be inappropriate for treatment as Supplemental Services under this paragraph, we may deliver to you a proposed Service Agreement for Project Services.
c. Project Services
In some cases, you may ask us to deliver services outside the scope of any Service Description and inappropriate for treatment as Supplemental Services. In those cases, we will prepare a separate Service Agreement for Project Services describing the proposed scope of those services and our fee to deliver them.
d. Support Services
We will provide to your designated administrator(s), technical contacts or users (1) management of the Services by individuals trained in the Services you have selected,and (2) phone and e-mail support 24 hours per day, 7 days per week, 365 days per year.
a. Service Fees
Fees for Services are set forth in the Service Order or in a Service Agreement for Project Services.
b. Adjustments to Service Fees.
We may adjust the Service Fees charged under this agreement as follows:
i. End-User or Network Growth. During the term of this agreement, if the number of users in your environment or the Service or Equipment types or quantities to be covered within the scope of this agreement exceeds the numbers, types or quantities indicated on the effective Service Order, we may apply a pro rata adjustment to the total Service Fees based on our then-current fee rates. You shall pay all Service Fees owed as they become due following any such adjustment.
ii. Surcharges. At any time after the parties sign this agreement, LunaTech may adjust its rates and charges or impose additional rates and charges to recover amounts it is required or permitted by governmental or quasi-governmental authorities to collect from others or pay to others in support of statutory or regulatory funds or programs. You shall pay all Service Fees owed as they become due following any such adjustment.
iii. Service Fee Rate Increases. At any time after the parties sign this agreement, LunaTech may elect to raise the fees that it charges for any Services under this agreement. We will give you no less than thirty (30) days’ notice of any such increase in fees to be charged. Following your receipt of such notice, you may terminate this agreement without incurring any additional charges or penalties, if any, that you ordinarily would incur for such termination.
c. Payment Terms
You agree to automatic payment of all amounts owed to us via EFT or Credit Card as set forth in the Service Order unless we approve your account for manual billing. A $25 monthly fee is charged for manual billing on approved credit. Upon your request or as we otherwise may agree, we will deliver to you an invoice identifying all charges owed to us. You shall pay a late charge of one and one half percent (1.5%) per month or the maximum lawful rate, whichever is less, for all such amounts not paid within thirty (30) days following the billing date specified in the Service Order (the “Payment Deadline”). If you dispute in good faith all or any portion of the amount owed to us, or if you otherwise require any adjustment to an invoiced amount, you must notify us in writing, prior to the Payment Deadline, of the nature and basis of the dispute and/or adjustment. If we are unable to resolve the dispute prior to the Payment Deadline, you nevertheless shall pay the entire invoiced amount by the Payment Deadline. If we ultimately determine that such amount should not have been paid, LunaTech shall apply a credit equal to such amount on against any Service Fees owed for the following month.
d. Suspension of Service
If you fail to pay all amounts owed under this agreement when due, then upon at least ten (10) business days prior written notice, and in addition to any other remedies available to us, we may suspend Services under this agreement until full payment is made. Our right to suspend Services under this section is in addition to our right to terminate this agreement.
All charges and fees owed under this agreement are exclusive of any applicable sales, use, excise or services taxes that may be assessed on the provision of the Services. In the event that any taxes are assessed on the provision of any of the Services, you shall pay the taxes directly to the taxing authority or shall reimburse us for their payment.
This agreement is effective once it has been signed by both parties and your credit application, if required by LunaTech, is approved (the “Service Start Date”). Upon approval, we will begin the installation, connection and testing of any lines or equipment necessary to provide the Services as soon as practicable. Unless properly terminated by either party, this agreement will remain in effect through the end of whatever term may be specified on the Service Order (the "Initial Term").
"Renewal" means the extension of any Initial Term specified on a Service Order for an additional twelve (12) month period following the expiration of the Initial Term, or in the case of a subsequent Renewal, a Renewal term. This agreement will renew automatically upon the expiration of the Initial Term or a Renewal term unless one party provides written notice to the other party of its intent to terminate this agreement at least sixty (60) days prior to the expiration of the Initial Term or of the then-current Renewal term.
c. Month-to-Month Services.
If the Service Order specifies no Initial Term with respect to any or all Services, then we will deliver those Services on a month-to-month basis. We will continue to do so until one party provides written notice to the other party of its intent to terminate those Services, in which case we will cease delivering those Services at the end of the calendar month in which such written notice is received by the other party.
d. Early Termination by Customer With Cause.
If an Initial Term is specified in the Service Order, then you may terminate this agreement for cause following sixty (60) days’ advance, written notice delivered to LunaTech upon the occurrence of any of the following:
i. We fail to fulfill in any material respect our obligations under this agreement and fails to cure such failure within thirty (30) days following our receipt of your written notice.
ii. LunaTech terminates or suspends its business operations, unless it is succeeded by a permitted assignee under this agreement.
e. Early Termination by Customer Without Cause.
If an Initial Term is specified in the Service Order, and if you have satisfied all of your obligations under this agreement, then no sooner than ninety (90) days following the Service Start Date, you may terminate this agreement without cause, provided that you pay us a termination equal to seventy-five percent (75%) of the recurring, Monthly Service Fees remaining to be paid through the end of the then-current term, based on the prices identified on the Service Order.
f. Termination by LunaTech.
We may elect to terminate this agreement upon thirty (30) days’ advance, written notice, with or without cause.
g. Effect of Termination.
If either party terminates this agreement, we will assist you in the orderly termination of services, including timely transfer of the Services to another designated provider. You shall pay us the actual costs of delivering any such assistance. Termination of this agreement for any reason by either party immediately nullifies all access to our services. We will immediately uninstall any affected software from your devices, and you hereby consent to such uninstall procedures.
a. Reservation of Rights.
In providing the Services, we may utilize any or all of the following:
i. LunaTech’s name, logo, domain name, and product and service names associated with the Services, and other trademarks and service marks;
ii. Software and other works of authorship; and
iii. Other technology, hardware, processes, know-how, techniques, designs, inventions and other tangible or intangible technical material or information.
All such information and property is the “LunaTech Technology.” The LunaTech Technology is covered by intellectual property rights owned by or licensed to us (collectively, "LunaTech IP Rights"). Other than as set forth in these terms, no license or other rights in or to the LunaTech Technology or the LunaTech IP Rights are granted to you, and all such licenses and rights are hereby expressly reserved.
b. LunaTech License Grant.
LunaTech grants you and your users a non-exclusive, non-transferable (except in connection with a permitted assignment of this agreement, non-sublicenseable right to access and use the Services and the LunaTech Technology as set forth herein.
c. LunaTech License Restrictions.
You shall not
i. Modify, copy or create derivative works based on the Services or on the LunaTech Technology;
ii. Disassemble, reverse engineer, or decompile the Services or the LunaTech Technology, or access the Services or the LunaTech Technology in order to:
d. Improvements to Services.
You hereby assign to LunaTech any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your users relating to any proposed improvements of or modifications to the Services.
“Equipment” means any computer, networking or telephony equipment, racking, or associated hardware or other equipment (if any) that we install on your premises or that we ship to your location to facilitate the delivery of Services. Equipment does not include any hardware or devices that we may sell to you or that we may procure on your behalf.
LunaTech is and will remain the sole owner of any Equipment, which is provided on a rental basis only. Our agreement transfers to you no Equipment ownership rights of any kind.
We retain sole discretion to determine the appropriate Equipment and associated software and/or technology, if any, to be used at your location, provided that our determination does not materially impair the availability or delivery of services under this agreement. We also retain sole discretion to determine the necessity of maintenance, repairs and/or improvement of the Equipment.
Except as otherwise may be specified in an applicable Service Description, LunaTech makes no independent representations or warranties with respect to the Equipment. Any third-party warranties are your exclusive remedies with respect to such Equipment. In the event of an Equipment malfunction, we will take commercially reasonable steps to ensure that you receive the benefit of any manufacturer warranties applicable to the Equipment in use at your location.
You shall take reasonable care of the Equipment and shall not damage it, tamper with it, move or remove it, attempt to repair it, or attempt to install any software on it. You are financially responsible, up to the full replacement value of all Equipment, for all damage to or loss of the Equipment used at your location, other than loss or damage caused by LunaTech. In addition, you shall obtain and maintain insurance with a reputable insurer for the full replacement value of the Equipment. Such policy or policies of insurance must cover the Equipment against loss or damage (including, without limitation, accidental loss or damage) and must name LunaTech as an insured beneficiary with respect to the Equipment. Upon demand, you must produce evidence that such insurance is being maintained and is valid.
You are responsible for providing the necessary power, network connection and appropriate environment to support the Equipment.
You shall not remove any sign, label or other marking on the Equipment identifying LunaTech as the owner of the Equipment. You do not acquire and will not acquire any rights of ownership in the Equipment by virtue of this agreement, and you do not have and will not have, by operation of law or otherwise, any lien or other similar right over or in relation to the Equipment.
On termination of any agreement pursuant to which we deliver Equipment, you shall allow LunaTech and its employees and contractors reasonable access to your premises to remove the Equipment. Alternatively, upon our request, you shall return the Equipment to us via the carrier of our choice, for which we will pay all applicable shipping charges.
“Software” means all and any software installed on the Equipment or provided by LunaTech to for installation on your computer equipment to facilitate the delivery of the Services.
This agreement does not transfer any right, title, or interest in the Software to you. Your use of the Software is subject to all applicable terms of any end-user license agreement pertaining to the Software, a copy of which will be made available to you upon request.
You shall not, and shall not permit any third party, to:
a. distribute or allow others to distribute copies of the Software or any part thereof to any third party,
b. tamper with, remove, reproduce, modify or copy the Software or any part thereof,
c. provide, rent, sell, lease or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, or
d. reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software source code or underlying proprietary information except as may be permitted by law.
a. Confidential Information
During the course of performance under this agreement, either party may be exposed to or may acquire the other’s proprietary or confidential information. Each of us shall hold all such “Confidential Information” in strict confidence and shall not disclose any such information to any third party. Confidential Information includes but is not limited to: (a) any technical information, design, process, procedure, formula, or improvement, as well as any formulae, specifications, designs, business or work processes and procedures, instructions, and other data relating to the Services; and (b) any business plans and financial information, regardless of whether such information would be protected under the common law.
b. Non-Confidential Information
Notwithstanding the preceding provision, Confidential Information does not include:
i. Information that at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise;
ii. Information that either party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other;
iii. Information received from a third party with the right to transmit same without violation of any secrecy agreement with the other party; and
iv. Information that must be disclosed pursuant to court order or by law.
a. Software Licensing
You represent and warrant that you have title to or license or rights to use or modify and have license or rights to permit LunaTech to use, access or modify any software that you have requested LunaTech use, access or modify as part of the Services.
b. Third-Party Obligations
You are responsible for any third-party vendor or service provider charges and to arrange for disconnection or termination and payment of charges related to the disconnection or termination of any related services with your current carrier(s) or service provider(s).
c. Network Security
It is your sole responsibility to determine whatever actions deemed necessary to make your data and voice networks and circuits secure from unauthorized access. LunaTech is not responsible for the security of your network and circuits from third parties, or for any damages that may result from any unauthorized access to your network.
d. Theft of Service
You shall notify us immediately, in writing, by electronic mail or by calling the LunaTech customer support line, if you become aware at any time that the Services are being stolen or used fraudulently. Failure to do so in a timely manner may result in the immediate termination of the Services and additional charges to billed to you. You will be liable for all use of the Service using Equipment stolen from you and any and all stolen Service or fraudulent use of the Services. Credits will not be issued for charges resulting from fraud that arises out of third parties hacking into any Equipment. This includes, but is not limited to, modem hijacking, wireless hijacking or other fraud arising out of a failure of your internal/corporate procedures. LunaTech will not issue credit for invoiced charges for fraudulent use resulting from your negligent or willful acts or those of an authorized user of your service.
a. Internal Network Security Compromise Policy
LunaTech monitors the availability and performance of its internal firewall and web caching system. This process involves monitoring for intrusion attempts and potential security breaches. In order to minimize a possible compromise of security, all services and applications exposed to the Internet on LunaTech's servers are updated with all commonly available security hotfixes and best practices. As appropriate, LunaTech proactively evaluates, investigates and reports security-related incidents to the appropriate authorities.
b. Service Warranty
We warrant that the Services will be performed in a professional and workmanlike manner and as described in an applicable Service Description.
c. DISCLAIMER OF WARRANTY
EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, LUNATECH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, LUNATECH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE TEMPORARY LOSS OF SERVICE AVAILABILITY.
a. Arbitration Procedures
Each of us shall attempt to settle amicably by mutual discussions any disputes, differences, or claims related to this agreement within sixty (60) days of the date any such dispute arises. Failing such amicable settlement, any such dispute, including claim related to the existence, validity, interpretation, performance, termination or breach of this agreement, is to be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English. The Arbitration Tribunal will not have the authority to award punitive damages to either party. Each of us will bear our own expenses, but we shall share equally the expenses of the Arbitration Tribunal and the AAA. Any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in Los Angeles, California, or at another location upon which we may agree. Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for your failure to pay for Services may be brought in a state or federal court in the United States with jurisdiction over the subject matter and parties.
b. Period for Bringing Claim
No claims to be resolved may be made more than six (6) months after the date by which the fault or failure should reasonably have been discovered; failure to make such a claim within the six (6) month period shall forever bar the claim.
c. Continued Service
Unless LunaTech is bringing an action for your failure to make payments for Services not otherwise in dispute, we will continue to provide Services under this agreement, and you shall continue to make payments to us, in accordance with this agreement, during the period in which the parties seek resolution of the dispute.
a. By Customer
You shall defend, indemnify and hold us harmless against all costs and expenses, including reasonable attorney’s fees, associated with the defense or settlement of any claim that:
i. LunaTech’s use, access or modifications of any software that you have requested that we use, access or modify as part of the Services infringes any patent, copyright, trademark, trade secret or other intellectual property right, or
ii. Your use of any Services in violation of any requirements or representations in this agreement violates any law or infringes any patent, copyright, trademark, trade secret or other intellectual property right.
You further shall pay any judgments or settlements based on any such claims.
b. By LunaTech
LunaTech shall defend, indemnify and hold you harmless against all costs and expenses, including reasonable attorney’s fees, associated with the defense or settlement of any claim that any of the Services or deliverables we provide infringe any patent, copyright, trademark, trade secret or other intellectual property right, and we shall pay any judgments or settlements based on any such claims.
EXCEPT AS MAY BE DESCRIBED IN AN APPLICABLE SERVICE DESCRIPTION OR IN A SERVICE AGREEMENT FOR PROJECT SERVICES, LUNATECH’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CUSTOMER AND WILL NOT EXCEED THE GREATER OF (1) THE PROCEEDS OF ANY PROFESSIONAL LIABILTIY INSURANCE AVAILABLE TO LUNATECH UNDER ITS APPLICABLE INSURANCE POLICIES, TOGETHER WITH ANY SELF-INSURED RETENTION AMOUNTS IN CONNECTION WITH THOSE POLICIES, UP TO A MAXIMUM OF $1,000,000.00 IN THE AGGREGATE, OR (2) THE SUM OF ALL AMOUNTS PAID BY CUSTOMER TO LUNATECH UNDER THIS AGREEMENT AND ALL SERVICE DESCRIPTIONS DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF ANY SUCH CLAIM. IN THE EVENT OF AN INSURANCE COVERAGE DISPUTE, LUNATECH IS NOT REQUIRED TO DISPUTE THE COVERAGE DETERMINATION AND IS NOT REQUIRED TO FILE A DECLARATORY JUDGMENT ACTION.
IN NO EVENT IS EITHER PARTY TO BE HELD LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR CLAIMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, LOST PRODUCTIVITY, LOSS OF DATA, AND LOSS FROM INTERRUPTION OF BUSINESS, EVEN IF PREVIOUSLY ADVISED OF THEIR POSSIBILITY AND REGARDLESS OF WHETHER THE FORM OF ACTION IS IN CONTRACT, TORT OR OTHERWISE.
Except as otherwise provided under this agreement, all notices, demands or requests to be given by any party to the other party shall be in writing and shall be deemed to have been duly given on the date delivered in person, or sent via fax, courier service, electronic mail, or on the date of the third business day after deposit, postage prepaid, in the United States Mail via Certified Mail, return receipt requested, and addressed as set forth on the Service Order. The address to which such notices, demands, requests, elections or other communications are to be given by either party may be changed by written notice given by such party to the other party pursuant to this Section.
b. Force Majeure
We will not be liable for any failure of performance of the Services due to causes beyond our reasonable control, including, but not limited to, fire, flood, electric power interruptions, national emergencies, civil disorder, acts of terrorism, riots, strikes, Acts of God, or any law, regulation, directive, or order of the United States government, or any other governmental agency, including state and local governments having jurisdiction over LunaTech or the Services provided hereunder.
No delay in exercising, no course of dealing with respect to, and no partial exercise of, any right or remedy hereunder will constitute a waiver of any right or remedy, or future exercise thereof.
Neither party may assign this agreement, in whole or in part, or any of its rights or obligations hereunder without the prior written consent of the other party.
However, LunaTech may assign or otherwise transfer its rights, interests and obligations under this agreement without your consent in the event of a change in control of 50% or more of the equity of LunaTech, the sale of substantially all the assets of LunaTech, or the restructuring or reorganization of LunaTech or its affiliate entities. In addition, unless otherwise agreed, we may contract with third parties to deliver some or all of the Services, and no such third-party contract is to be interpreted as an assignment of this agreement. However, we will use commercially reasonable efforts to ensure that any and all such third parties abide by all of the terms of this agreement, and, except as otherwise agreed, we will remain solely responsible for the fulfillment of all of our obligations under this agreement.
This agreement is binding upon the parties, their successors and permitted assigns.
Our respective duties and obligations with respect to proprietary rights, intellectual property rights, and non-disclosure and confidentiality will survive and remain in effect, notwithstanding the termination or expiration of this agreement.
LunaTech may, from time to time, in its sole discretion, and for any reason, amend these Terms of Service and any Service Descriptions posted on our web page. We will give you no less than thirty (30) days’ notice of any such change. Following your receipt of that notice, if any such change would result in a material diminishment of the value you are receiving under this agreement, you may terminate this agreement without incurring additional charges or penalties, if any, that you ordinarily would incur as a result of such termination. If you do not terminate this agreement within the notice period, then those changes will become effective on the date specified in our notice. Otherwise, this agreement may be modified or amended only by a writing signed by both parties.
g. Governing Law
This agreement is to be governed by and construed in accordance with the laws of the State of California. Jurisdiction and venue for any action arising under this agreement is exclusively in the state or federal courts located in Los Angeles County, California. The parties waive any other choice of venue. Any action arising under this agreement must be brought within six (6) months after its accrual.
If any term or provision of this agreement is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain unimpaired, and the invalid terms or provisions are to be replaced by such valid terms and provisions that most nearly fulfill the parties’ intention underlying the invalid term or provision.
i. Entire Agreement
This agreement sets forth our entire understanding with respect to the subject matter hereof and is binding upon both parties, their successors, and their permitted assigns, in accordance with its terms. There are no understandings, representations or agreements other than those set forth herein. Each party, along with its respective legal counsel, has had the opportunity to review this agreement. Accordingly, in the event of any ambiguity, such ambiguity will not be construed in favor of, or against either party.