Terms of Service
EFFECTIVE AS OF FEBRUARY 26, 2019
In these Terms of Service (“Terms”), “we,” “us,” “our,” or “Lunar” will refer to EXPECT THE MOON, LLC DBA LUNAR, 1 S ORANGE AVE, SUITE 302, ORLANDO, FL 32801 and the terms “you,” “your,” and “Customer” will refer to you. If you are registering for an account in order to use our Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to Lunar that you have the authority to bind that organization to these Terms (and, in which case, the terms “you,” “your,” and “Customer” will refer to that organization). The exception to this is if that organization has a separate written agreement with Lunar covering the use of our Services, in which case that agreement will govern such use.
When we refer to our “Services” in these Terms, we mean the products and services provided to you by us as described in your Order Form. This includes, but is not limited to: our software-as-a-service products: Uplink, Shuttle, and Ticketmaster-integration; any cloud-based software provided to you by Lunar in connection with your use of our products; any programs, features, functions, reports, updates, or upgrades of any of the foregoing made generally available by us; our Documentation; and any and all intellectual property provided to you or any Authorized User in connection with the foregoing. For the avoidance of doubt, this also includes Aggregated Statistics and any information, data, or other content derived from our monitoring of your access to or use of our Services, but does not include Customer Data.
To use our Services, you must review and accept these Terms by clicking on the “I Accept” or by using any other mechanism provided.
PLEASE REVIEW THESE TERMS CAREFULLY. BY USING OUR SERVICES OR BY CLICKING TO ACCEPT OR AGREEING TO THESE TERMS WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU ARE ACCEPTING THESE TERMS. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND LUNAR. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT ACCEPT AND YOU SHOULD NOT USE OR CONTINUE TO USE OUR SERVICES.
THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 8 (Limitations of Liability and Indemnification).
If you have any questions about these Terms, you can reach us at belunar.com/contact.
TABLE OF CONTENTS
- Changes to These Terms.
- Access and Use of Our Services.
- Customer Data and Feedback.
- Fees and Payment.
- Product Terms
- Limitations of Liability and Indemnification.
- Term and Termination.
1. Changes to These Terms.
We may revise these Terms from time to time. If we do, the revised Terms will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. We will provide you advance notice of any material revisions. This notice will be provided in your product or via an email to the contact specified in your Order Form. For other revisions, we will update the effective date of these Terms at the top of the page. We encourage you to check the effective date of these Terms whenever you visit our website or log in to our Services. Your continued access or use of our Services constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using our Services.
“Aggregated Statistics” means any data and information related to your use of our Services that we use in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of our Services.
“Authorized User” means your employees, consultants, contractors, and agents (i) who are authorized by you to access and use our Services under the rights granted to you pursuant to these Terms and (ii) for whom access to our Services has been purchased hereunder.
“Carriers” means third-party entities that either supply cellular connectivity or telecommunication services.
“Customer Data” means any, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of you or an Authorized User through our Services.
“Documentation” means our user manuals, handbooks, and guides relating to our Services provided by us to you either electronically or in hard copy form/end-user documentation relating to our Services available at docs.belunar.com.
“Events” means any tracked action recorded by our Shuttle product. These tracked actions include, but are not necessarily limited to, a page visitor’s actions including page loads, clicks, and form submissions.
“Minutes” means any minute of the duration of an inbound or outbound voice call using the phone call component of our Uplink product.
“MMS Messages” or “Media Messages” means any message sent or received using the multimedia messaging service component of our Uplink product.
“Order Form” means the incorporated part of these Terms that describes our Services, Term, and Fees for a customer. An Order Form may be either signed or agreed to through a separate, specifically-titled document; online payment portal; or other registration and payment mechanism that achieves this objective.
“PODs” (with singular form “POD”), means pieces-of-data as part of our Shuttle product. Typically, PODs enter Shuttle through a Source and are routed to one-or-more desired Destinations.
“SMS Messages” means each message sent or received using the text messaging service component of our Uplink product.
“Subscription Services” means Services that Customer purchases under an Order Form, or online purchasing portal, on a non-trial basis, as distinguished from Trial Services.
“Third-Party Products” means any third-party products provided with or incorporated into our Services.
“TODs” (with singular form “TOD”) means transfers-of-data as part of our Shuttle product. A TOD is any type of transfer or attempted transfer of a POD in or out of Shuttle. The total number of TODs would include the number of PODs sent into the system (or attempted to be sent into the system), plus the number of PODs sent out of the system (or attempted to be sent out of the system).
“Trial Services” means Services that Customer purchases under an Order Form, or online purchasing portal, on a trial basis.
“User Numbers” means, as part of our Uplink product, any number that can be assigned by an Authorized User to a person internal to the organization.
3. Access and Use of Our Services.
3.1 Availability of Our Services. We desire for our Services to be bug-free and have 100% uptime, but we know that we will never achieve this. While we do commit to striving toward these ideals, we do not make any representations or guarantees regarding the uptime or availability of our Services.
OUR SERVICES ARE PROVIDED “AS IS” AND WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8 (LIMITATIONS OF LIABILITY AND INDEMNIFICATION), WE MAKE NO WARRANTY OF ANY KIND THAT OUR SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
3.2 Your Use of Our Services. Subject to and conditioned on the terms of your Order Form, and in compliance with all the other terms and conditions of these Terms, we hereby grant you a non-exclusive, non-transferable, except in compliance with Section 11.7 (Assignment), license to access and use our Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. This license is purchased as a subscription for the term stated in the Order Form. Such use is limited to your internal use. We shall provide you with the necessary information to allow you to access our Services.
You are responsible and liable for all use of our Services resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by you will be deemed a breach of these Terms by you. You shall use reasonable efforts to make all Authorized Users aware of the provisions of these Terms as applicable to such Authorized User’s use of our Services, and shall cause Authorized Users to comply with such provisions.
3.3 Use Restrictions. You shall not use our Services for any purposes beyond the scope of the access granted in these Terms. The use of our Services must also be in accordance with our Acceptable Use Policy (“AUP”).
3.4 Changes to our Services. We are always looking to make our Services better. As such, the features and functions of our Services may change over time. It is your responsibility to ensure you are staying up-to-date with these changes for the successful use of our Services. Although we try to avoid making changes to our Services that are not backward-compatible, if any such changes become desired or necessary, in our sole discretion, we will use reasonable efforts to let you know prior to implementing those changes.
3.5 Reservation of Rights. We reserve all rights not expressly granted to you in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to you, or any third-party, any intellectual property rights or other rights, title, or interest in our Services. All rights, title, and interest in and to our Services, including all intellectual property rights therein, are and will remain with us. You have no right, license, or authorize with respect to any of our Services except as expressly set forth herein.
To the extent that you are ever found to have any rights in our Services or Documentation (or intellectual property rights therein), you hereby irrevocably assign to us, for no additional consideration, your entire right, title, and interest in and to all such intellectual property rights, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world.
3.6 Service Suspension. Notwithstanding anything to the contrary in these Terms, we may temporarily suspend your and any Authorized User’s access to any portion or all of our Services, a “Service Suspension,” if we reasonably determine that: (A) there is a threat or attack on any of our Services; (B) your or any Authorized User’s use of our Services disrupts or poses a security risk to our Services or to any other customer or our vendors; (C) you, or any Authorized User, is using our Services for fraudulent or illegal activities; (D) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) the provisioning of our Services to you or any Authorized End User is prohibited by applicable law; (F) any of our vendors has suspended or terminated our access to or use of any Third-Party products or services required to enable you to access our Services; or (G) in accordance with your failure to make payment when due as specified in Section 6 (Fees and Payment).
We shall use commercially reasonable efforts to provide notice of any Service Suspension to you and to provide updates regarding resumption of access to our Services following any Service Suspension. We shall use commercially reasonable efforts to resume providing access to our Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. We will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you or any Authorized User may incur as a result of a Service Suspension.
3.7 Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, we may monitor your use of our Services and collect and compile Aggregated Statistics. As between Lunar and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Lunar. You acknowledge that we may compile Aggregated Statistics based on Customer Data input into our Services. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
3.8 Third-Party Products. We may from time to time make Third-Party Products available to you. For purposes of these Terms, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install or use such Third-Party Products.
All rights, title, and interest in and with respect to Third-Party Products, including all intellectual property rights therein, are and will remain with the respective rights holders in the Third-Party Products.
WE STRICTLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
4. Customer Data and Feedback.
4.1 Ownership of Customer Data. As between Customer and Lunar, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all intellectual property rights relating thereto. You hereby grant to us a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for us to provide our Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
4.2 Consent to Use or Access Customer Data. You hereby irrevocably grant all such rights and permissions in or relating to Customer Data: (a) to us, our subcontractors and our personnel as are necessary or useful to perform our Services; and (b) to us as are necessary or useful to enforce these Terms and exercise our rights and perform hereunder; and (c) to us as are necessary or useful to improve or optimize our Services and Documentation.
4.3 Feedback. If you transmit any communications or materials to us, suggesting or recommending changes to our Services or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“). You agree that all Feedback becomes the property of us and may be incorporated into our Services and Documentation. We are free to use, without any attribution or compensation to you or any other party, any ideas, know-how, concepts, techniques, or otherwise contained in the Feedback, for any purpose whatsoever. We are not required to use any Feedback at any time.
5.1 Your Success. We are committed to your successful use of our Services. If you are having any issues with our Services, please reach out to us at firstname.lastname@example.org.
5.2 Support Expectations. Unless specified otherwise in your Order Form, we do not make any representations or guarantees regarding the response time, resolution time, or otherwise for the support of our Services.
6. Fees and Payment.
6.1 Fees. In accordance with the terms as described in your Order Form, an invoice may be sent to you so that you can pay us any corresponding fees (“Fees”). If you receive an invoice, you shall pay us these Fees without offset or deduction. You shall make all payments hereunder in US dollars on or before the due date set forth in the corresponding invoice. You shall reimburse us for all costs incurred by us in enforcing these Terms including attorneys’ fees and court costs. If you fail to make any payment when due, without limiting our other rights and remedies: (i) we may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) you shall reimburse us for all costs incurred by us in collecting any late payments or interest including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for seven days or more from the date payment is due, we may suspend your and any Authorized Users’ access to any portion or all of our Services until such amounts are paid in full.
6.2 Taxes. All Fees and other amounts payable by you under these Terms are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income.
6.3 Auditing Rights and Required Records. You agree to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of one year after the termination or expiration of these Terms with respect to matters necessary for accurately determining amounts due hereunder. We may, at our own expense, on reasonable prior notice, periodically inspect and audit your records with respect to matters covered by these Terms, provided that if such inspection and audit reveals that you have underpaid us with respect to any amounts due and payable during the Term, you shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 6.1 (Fees). You shall pay for the costs of the audit if the audit determines that your underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of these Terms and for a period of one year after the termination or expiration of these Terms.
7. Product Terms
7.1 Phone Number Reclamation. All phone numbers, as part of our Uplink product, are subject to rules and restrictions imposed by Carriers. In order to comply with such rules and restrictions, we may, in our sole discretion, reclaim phone numbers that do not have adequate usage, as determined by such Carriers. We will try to prevent the reclamation of any phone numbers and use commercially reasonable efforts to provide notice to you in the event of any reclamation.
7.2 Carrier Splitting of Messages. Any messages, as part of our Uplink product, whether SMS Messages, MMS Messages, or Media Messages, that are broken-up or sent in parts, separate pieces, or otherwise split, from the intended original message in totality, externally by a corresponding Carrier will be counted as separate messages as determined by the corresponding Carrier’s method for splitting the message. For example, if 1 SMS Message of 200 characters is split, by the corresponding Carrier, into 2 SMS Messages of 100 characters, we would count this as two SMS Messages for our Uplink product.
7.3 Minute Rounding. In calculating the Minutes used in a corresponding call duration, as part of our Uplink product, we round any duration up to the nearest minute. For example, a call of 3 minutes and 2 seconds would be billed as 4 Minutes.
7.4 POD Resends. Each resend of a POD, as part of our Shuttle product, counts as a separate TOD.
7.5 Usage Limits. Your usage of our Services may be subject to usage limits as specified in your Order Form. Any overage of this usage limit will be at invoiced subject to Section 6 (Fees and Payment) and the terms as specified in your Order Form.
7.6 Time Zones. Unless otherwise specified, any reference to a specific time for the Fees, the Term, any usage determinations shall refer to Coordinated Universal Time (“UTC”).
8. Limitations of Liability and Indemnification.
8.1 Limitations of Liability. IN NO EVENT WILL WE BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO US UNDER THESE TERMS IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS LESS.
8.2 Discontinuation or Modification. WE MAY DISCONTINUE OR MODIFY ANY OF OUR SERVICES, UPON REASONABLE NOTICE TO YOU, WITHOUT LIABILITY THEREFOR.
8.3 Sole Remedy. THIS SECTION 8 (LIMITATIONS OF LIABILITY AND INDEMNIFICATION) SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8.4 Indemnification by Lunar. We shall indemnify, defend, and hold you harmless from and against any and all losses, damages, liabilities, costs (including attorneys’ fees) (“Losses“) incurred by you resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) that our Services, or any use of our Services in accordance with these Terms, infringes or misappropriates such third-party’s US intellectual property rights, provided that you promptly notify us, in writing, of the claim, cooperate with us, and allow us the sole authority to control the defense and settlement of such claim.
If such a claim is made or appears possible, you agree to permit us, at our sole discretion, to (A) modify or replace our Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for you to continue use. If we determine that neither alternative is reasonably available, we may terminate these Terms, in their entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
This Section 8.4 (Indemnification by Lunar) will not apply to the extent that the alleged infringement arises from: (A) use of our Services in combination with data, software, hardware, equipment, or technology not provided by us or authorized by us in writing; (B) modifications to our Services not made by us; (C) Customer Data; or (D) Third-Party Products.
8.5 Indemnification by You. You shall indemnify, hold harmless, and, at our option, defend us from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on your or any Authorized User’s (i) negligence or willful misconduct; (ii) use of our Services in a manner not authorized by these Terms; (iii) use of our Services in combination with data, software, hardware, equipment or technology not provided by us or authorized by us in writing; or (iv) modifications to our Services not made by us, provided that you may not settle any Third-Party Claim against us unless we consent to such settlement, and further provided that we will have the right, at our option, to defend against any such Third-Party Claim or to participate in the defense thereof by counsel of our own choice.
9. Term and Termination.
9.1 Term of Terms. These Terms commence on the date they are accepted by you, the earlier of the Effective date stated on the Order Form, upon your accessing of our Services, or upon your acceptance of these Terms by clicking on the “I Accept” or by using any other mechanism provided, and will continue until your Trial Term and Subscription Term, have expired or have been terminated in accordance with these Terms and your Order Form (“Term”).
9.2 Term of Trial Services. The term of any Trial Services (“Trial Term”) shall be as specified in your Order Form starting on the “Trial Services Start Date.” If your Order Form specifies that your Trial Services will auto-transition to Subscription Services, and there are Subscription Services in your Order Form, your Trial Services will automatically transition to the start of your Subscription Services without interruption (“Auto-Transition”) unless either Party gives the other Party notice to opt-out of this Auto-Transition by the “Opt-out Date for Auto-Transition,” as specified in your Order Form.
9.3 Term of Subscription Services. The initial term of any Subscription Services (“Initial Term”) shall be as specified in your Order Form starting on the “Subscription Services Start Date”. If your Order Form specifies that your Subscription Services will auto-renew, and upon the conclusion of this Initial Term, your Subscription Services will automatically renew (“Auto-Renewal”) for an additional, successive term equal to the length of time of the Initial Term (each additional, successive, automatically-renewed term a “Renewal Term” and collectively together with the Initial Term, the “Subscription Term“). Automatic renewal will occur unless either Party gives the other Party notice to opt-out of this Auto-Renewal by the “Opt-out Date for Auto-Renewal,” as specified in your Order Form. In the event of any Auto-Renewal, the Opt-out Date for Auto-Renewal for that Renewal Term will be one Renewal Term later than the previous Opt-out Date for Auto-Renewal.
The per-unit pricing during any Renewal Term may increase by up to 7% above the applicable pricing in the prior term unless we provide you notice of different pricing at least 60 days prior to the applicable Renewal Term. Except as expressly provided in your Order Form, in our sole discretion, renewal of promotional or one-time-priced subscriptions may be at our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, in our sole discretion, any renewal in which your Subscription Services will change from the prior term may result in repricing at renewal without regard to the prior term’s per-unit pricing.
9.4 Termination. In addition to any other express termination right set forth in these Terms, we may terminate these Terms, effective on notice to you, if you: (A) fail to pay any amount when due hereunder; or (B) breach any of your obligations under Section 3.3 (Use Restrictions), Section 3.5 (Reservation of Rights), or Section 4 (Customer Data and Feedback).
Either Party may terminate these Terms, effective on written notice to the other Party, if the other Party breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
Either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.5 Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, you shall immediately discontinue use of our Services and, without limiting Customer’s obligations under Section 3.5 (Reservation of Rights) or Section 4 (Customer Data and Feedback), shall delete, destroy, or return all copies of our Documentation. No expiration or termination will affect your obligation to pay all Fees that may have become due before such expiration or termination or entitle you to any refund.
9.6 Survival. This Section 9.6 (Survival) and Sections 1 (Changes to These Terms), Section 3.1 (Availability of Our Services), Section 3.5 (Reservation of Rights), Section 4 (Customer Data and Feedback), Section 6 (Fees and Payment), Section 8.1 (Limitations of Liability), Section 8.4 (Indemnification by Lunar), Section 8.5 (Indemnification by You), Section 10 (Confidentiality), and Section 11 (Miscellaneous) survive any termination or expiration of these Terms. No other provisions of these Terms survive the expiration or earlier termination of these Terms.
10.1 Confidential Information. In connection with these Terms, each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other Party (as the “Receiving Party“). Subject to Section 10.2 (Exclusions), “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, all materials supplied by us are the Confidential Information of us and the financial terms and existence of any of your Order Forms are the Confidential Information of us.
10.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with these Terms; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with these Terms; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
10.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms; (ii) except as may be permitted by and subject to its compliance with Section 10.4 (Compelled Disclosures), not disclose or permit access to Confidential Information other than to its representatives who: (A) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms; (B) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10.3 (Protection of Confidential Information); and (C) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.3 (Protection of Confidential Information); (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and (iv) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section 10 (Confidentiality).
10.4 Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement. The Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
11.1 Entire Agreement. These Terms, together with any other documents incorporated herein by reference and all related attachments and Order Forms, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. Unless specifically stated in your Order Form, in the event of any inconsistency between the statements made in the body of these Terms, Order Forms, and any other documents incorporated herein by reference, the following order of precedence governs: (i) the Order Forms, if any, as of the Effective Date; (ii) second, these Terms; and (iii) third, any other documents incorporated herein by reference.
11.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) required or permitted to be given under these Terms will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt. Notices to us shall be copied to email@example.com, Attn: Official Notice. Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section 11.2 (Notices).
11.3 Force Majeure. In no event shall we be liable to you, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms, if and to the extent such failure or delay is caused by any circumstances beyond our reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
11.4 Amendment and Modification; Waiver. We may update the terms of these Terms pursuant to Section 1 (Changes to These Terms). No other amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.5 Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, these Terms will be interpreted to effect its original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.6 Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action or proceeding arising out of or related to these Terms or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in Orange County in the city of Orlando, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
11.7 Assignment. You may not assign any of your rights or delegate any of your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of us. Any purported assignment or delegation in violation of this Section 11.7 (Assignment) will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms are binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
11.8 Export Regulation. Our Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release our Services or the underlying software or technology to, or make our Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making our Services or the underlying software or technology available outside the US.
11.9 Representative Customer. Unless specified in an Order Form, we may include your name and logo in our lists of current or former customers in promotional and marketing materials.
11.10 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3.5 (Reservation of Rights) or Section 4 (Customer Data and Feedback) or, in the case of Customer, Section 3.3 (Use Restrictions), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
11.11 Construction. Throughout these Terms, as the context requires: (a) the singular tense and number includes the plural, and the plural tense and number includes the singular; (b) the past tense includes the present, and the present tense includes the past; and (c) references to parties, sections, and exhibits mean the parties, sections, and exhibits of and to these Terms. The section headings in these Terms are inserted only as a matter of convenience, and in no way define, limit, extend, or interpret the scope of these Terms or of any particular section.
11.12 Disputes. You agree that before bringing any formal legal case, you will first try to contact us through firstname.lastname@example.org. Most disputes can be resolved in this way.