This Master Services Agreement (this “Agreement”) is entered into by and between Lumiplan North America, Inc., a California corporation located at PO Box 2608, Mission Viejo, California, 92690 (“Lumiplan”) and the Customer (“Customer”).
This Agreement permits Customer to (i) purchase subscriptions to online software-as-a-service products including but not limited to the Lumiplay platform (front-end, API, player), the Mobile Application platform, the Interactive Trail Map (“Service Software”) and other services from Lumiplan pursuant to any ordering documents (“Order Form”) referencing this Agreement and sets forth the basic terms and conditions under which those products and services will be delivered and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, such Subscription Services, as further set forth on each statement of services (“Order Form”, “Statement of Work” or “SOW”) issued hereunder. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
The “Effective Date“ of this Agreement is the date which is the effective date of the first Order Form or SOW referencing this Agreement.
“Authorized User” means an employee or Contractor of Customer who is authorized to access the Service Software.
“Contractor” means an independent contractor or consultant who is not a competitor of Lumiplan.
“Customer Data” means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation Personal Information, and data submitted, uploaded, or imported to the Services by Customer (including from Third Party Platforms).
“Documentation” means the technical user documentation provided with the Services.
“Feedback” means comments, questions, suggestions, or other feedback relating to any of Lumiplan products or services.
“Laws” means all applicable local, state, federal, and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Statement of Work” means a separate agreement to be entered into by the parties hereto as to the specific Services being provided to Customer in accordance.
“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on our income.
“Third-Party Platform” means any software, software-as-a-service, data sources, or other products or services not provided by Lumiplan that are integrated with Services as described in the Documentation.
2.1. Provision of Services
Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term“), or as stated on the applicable SOW.
2.2. Access to Services
Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form. Use of and access to the Services is permitted only by Authorized Users. Customer will require that all Authorized Users keep the user ID and password information strictly confidential and not share such information with any unauthorized person. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords. If any Authorized User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will immediately delete such user ID and otherwise terminate such Authorized User’s access to the Service.
Customer may permit its Contractors to serve as Authorized Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.4. General Restrictions
Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
3. Customer Data
3.1. Rights in Customer Data
3.2. Storage of Customer Data
Lumiplan does not provide an archiving service on behalf of Customer. Lumiplan agrees only that he will not intentionally delete any Customer Data from any Service prior to termination of Customer’s applicable Subscription Term. Lumiplan expressly disclaims all other obligations with respect to storage.
3.4. Indemnification by Customer
Customer will indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation from us at Customer’s expense. Notwithstanding the foregoing sentence, (a) We may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without our prior written consent, unless the settlement fully and unconditionally releases us and does not require us to pay any amount, take any action, or admit any liability.
Lumiplan will use commercially reasonable industry standard security technologies in providing the Services (ISO 27001, ISO 27002, COBiT, ITIL, NIST Cybersecurity Framework). Lumiplan has implemented and will maintain appropriate technical and organizational measures, including information security policies, designed to preserve the security, integrity, and confidentiality of Customer Data and to protect against unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, Lumiplan will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond our control.
This Agreement is for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Lumiplan or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Technology”). Except as expressly set forth in this Agreement, no rights in any of Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services.
Customer, from time to time, may submit Feedback to Lumiplan. Lumiplan may freely use or exploit Feedback in connection with any of its products or services.
6. Subscription Term, Fees & Payment
6.1. Subscription Term and Renewals
Unless otherwise specified on the applicable Order Form or SOW, each Subscription Term will automatically renew for additional one-year periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
6.2. Fees and Payment
All fees are as set forth in the applicable Order Form or SOW and will be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Approved Proposal, Order Form or SOW. Except as expressly set forth in Section 8 (Limited Warranty) and Section 10 (Indemnification), all fees are non-refundable based on Services purchased and not actual usage. The rates in the Order Form or SOW are valid for the initial one-year period of each Subscription Term and thereafter may be subject to an automatic adjustment increase per year. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form or SOW. If Customer is required by Law to withhold any Taxes from Customer’s payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Lumiplan receive and retain (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
6.3. Suspension of Service
If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Lumiplan reserve the right to suspend Customer’s access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full.
7. Term and Termination
This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
7.2. Termination for Cause
Either party may terminate this Agreement (including all related Order Forms and SOWs) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
7.3. Effect of Termination
Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Technology) and delete any and all copies of the Documentation, any passwords or access codes and any other of our Confidential Information in its possession. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service, and that Lumiplan may delete any such data as may have been stored by the company at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
The following Sections will survive any expiration or termination of this Agreement: 2.4 (General Restrictions), 3.2 (Storage of Customer Data), 3.4 (Indemnification by Customer), 5 (Ownership), 6.2 (Fees and Payment), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 9 (Confidential Information), 10 (Indemnification), 11 (Limitation of Liability) and 13 (General Terms).
8. Limited Warranty
8.1. Limited Warranty
Lumiplan warrants, for Customer’s benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Lumiplan sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for us to use commercially reasonable efforts to correct the reported non-conformity, or if we determine such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 8.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
8.2. Warranty Disclaimer
EXCEPT FOR THE LIMITED WARRANTY IN SECTION 8.1, ALL SERVICES ARE PROVIDED “AS IS”. NEITHER LUMIPLAN NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LUMIPLAN DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DO LUMIPLAN WARRANTS THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. LUMIPLAN SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. LUMIPLAN SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
9. Confidential Information
9.1 Confidentiality Obligations
Confidential information shall be held in confidence by the receiving party and, except with the disclosing party’s prior written consent, will only be disclosed to the receiving party’s employees, contractors or representatives who have a need to know such information for the purpose of performing or receiving benefits under the Agreement (“Purpose”) and who are bound by obligations of confidentiality at least as protective as those herein.
9.2 Restrictions on Use of Confidential Information
The receiving party shall: (a) use the disclosing party’s confidential information solely for the Purpose; (b) take all reasonable and necessary steps to ensure that its employees, contractors or representatives comply with the receiving party’s confidentiality obligations; and (c) only disclose the disclosing party’s confidential information in response to a valid court order or other legal process only to the extent required by that order or process and only after the receiving party has given the disclosing party prompt written notice, if permitted, and the opportunity to seek a protective order or confidential treatment of such confidential information (with the reasonable assistance of the receiving party, if the disclosing party so requests). The foregoing confidentiality obligations shall survive expiration or earlier termination of this Agreement for a period of five (5) years thereafter, unless such confidential information constitutes a trade secret, and in such event, these obligations shall continue for so long as such confidential information constitutes a trade secret. Notwithstanding the foregoing, Customer may copy, retain and use Lumiplan confidential information on an ongoing basis as reasonably necessary for its ongoing use of any Services.
The foregoing obligations apply to all confidential information, unless and until such time as the receiving party can demonstrate with competent evidence that such confidential information: (a) is or became generally available to the public, through no fault of the receiving party and without breach of this Agreement; (b) is or was already in receiving party’s possession without restriction prior to any disclosure by the disclosing party; (c) is or has been lawfully disclosed to the receiving party by a third party without an obligation of confidentiality; or (d) was developed independently by the receiving party without access to, use of or reference to the disclosing party’s confidential information.
Lumiplan shall hold Customer harmless from liability to third parties resulting from infringement by the Service Software of any United States patent, or any copyright, provided Lumiplan is promptly notified of any and all threats, claims and proceedings related thereto, Customer provides reasonable assistance to Lumiplan in defending any such claims, and Customer provides Lumiplan with sole control over defense and settlement. Lumiplan will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service Software (i) not supplied by Lumiplan, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery without Lumiplan’s authorization, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (vi) where Customer failed to upgrade the Service Software as specified by Lumiplan, and such upgrade would have avoided the alleged infringement, or (vii) where Customer’s use of the Service Software is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Service Software is held by a court of competent jurisdiction to be or are believed by Lumiplan to be infringing, Lumiplan may, at its option and expense and as Customer’s sole remedy (a) replace or modify the Service Software to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service Software, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service Software. Customer shall indemnify, defend and hold harmless Lumiplan and its officers, employees, contractors, agents, and advisors against any and all claims, damages, liabilities, charges or expenses raised against or incurred by Lumiplan as a result of a third-party claim arising out of: (a) Customer’s breach of any representation or warranty under this Agreement; or (b) Customer’s breach of this Agreement
11. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, LUMIPLAN AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO FOR ANY REASON INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR GOODWILL; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND LUMIPLAN’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE PLATFORM UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
To the extent any of the limitations in section 11 are not permissible in a given jurisdiction, LUMIPLAN’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12. Updates to Agreement Terms
Lumiplan may update and amend the terms and conditions of this Agreement from time to time. Unless otherwise specified by Lumiplan, changes become effective for Customer upon renewal of Customer’s current Subscription Term (as defined above) or entry into a new Order Form or SOW. Lumiplan will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email, or other means.
13. General Terms
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.
If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
13.3. Governing Law; Venue; Dispute Resolution
This Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. Any dispute that arises under this Agreement or relating to the Services shall be resolved first through negotiation in good faith between the Parties. Failing an agreement, the dispute shall be settled by binding arbitration by a single arbitrator selected from the roster of American Arbitration Association (“AAA”) arbitrators, with the arbitration conducted according to the AAA Commercial Arbitration Rules then in force, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof, with the prevailing party entitled to recover costs and attorneys’ fees. The seat of the arbitration shall be Los Angeles, California. All aspects of the arbitration shall be treated as confidential. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT.
Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
13.5. Amendments; Waivers
Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
13.6. Entire Agreement
This Agreement together with all documents incorporated herein are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are online, subscription-based products and that in order to provide improved customer experience. Lumiplan may make changes to the Services, and Lumiplan will update the applicable Documentation accordingly.
13.7. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
We may use the services of subcontractors and permit them to exercise the rights granted to us in order to provide the Services under this Agreement, provided that we remain responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
Nothing in this Agreement prevents us from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but we will use commercially reasonable efforts to notify Customer where permitted to do so.
13.10. Independent Contractors
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.11. Export Control
In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
13.12. Government End-Users
Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Services were developed fully at private expense. All other use is prohibited.
13.13. Marketing/Use Of Name
Except as otherwise set forth herein, Lumiplan may refer to the Customer in any publicity materials, advertising, sales promotions, trade shows, or marketing materials or similar communications.
This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.