Master Subscription Agreement

Effective: November 19, 2020

This Master Subscription Agreement describes your rights and responsibilities when using Lumavate’s low-code platform (“Platform”) and Apps deployed and hosted by Lumavate (“Lumavate Hosted Apps”). Please read it and related documents carefully. If you are a Customer (defined below), this Customer Agreement governs your access to the Platform and Lumavate Hosted Apps. Individuals invited by you to use the Platform or governed by the User Terms of Service.

The applicable provisions of this Customer Agreement govern regardless of whether you are using the free trial or free offering of the Platform or are a paid subscriber.

By (1) clicking a box indicating acceptance of this Customer Agreement, (2) selecting a Platform Subscription via the Online Purchasing Portal, (3) executing an Order Form or Statement of Work that references this Customer Agreement, or (4) using free offerings, you agree to the terms of this Customer Agreement and its effective date is based on whichever previous option listed occurs first. An individual accepting this Customer Agreement on behalf of a Company or other Legal Entity represents that he/she has the authority to bind such entity and its affiliates to this Customer Agreement, in which case the term “you” shall refer to such entity and its affiliates. If the individual accepting this Customer Agreement does not have such authority, or does not agree with this Customer Agreement, such individual must NOT accept this Customer Agreement and may not use the Platform.

Lumavate’s direct competitors are prohibited from accessing or using the Platform, except with Lumavate’s prior written consent. In addition, the Platform and Lumavate Hosted Apps may not be accessed by a direct competitor for the purposes of monitoring its availability, performance, functionality, or for any other benchmarking or competitive purpose.

  1. Definitions
    In addition to the terms defined in this body of this Customer Agreement, the following terms shall be defined as follows:“Acceptable Use Policy” refers to the acceptable use policy all Customers, Platform Users, and App End Users are subject to when using the Platform or accessing Lumavate Hosted Apps.“Account” means the Customer’s password protected account(s) to access the Platform.“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under a common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50 percent of the voting interests of the subject entity.“App End User” means the individual accessing the Lumavate Hosted App on their mobile device, tablet, or desktop.

    “App-specific Premium Support” refers to a paid support subscription available to Customers that utilizes Lumavate’s Professional Services to build and/or enhance and maintain Lumavate Hosted App. App-specific Premium Support requires a subscription for each app supported.

    “Command Center” is the Lumavate Command Center which enables Customers to manage their Platform Subscription, add or remove Command Center users, and distribute Pages, Features, Component Sets, and Starter Kits to Studios underneath the Command Center. Each Customer receives one Command Center as part of the Customer’s Platform Subscription.

    “Component Set” refers to a collection of visual elements  such as buttons, images, etc. that are added to a Page to create the visual design of an App.

    “Customer” is the organization that you represent in agreeing to the Customer Agreement. If your Account is being set up by someone who is not formally affiliated with an organization, the Customer is the individual creating the Account.

    “Customer Agreement” means this Master Subscription Agreement, Order Form(s) referencing this Master Subscription Agreement, and information contained in an URL or policy referenced in this Master Subscription Agreement and/or Documentation.

    “Confidential Information” means all financial, technical, business, and other information regarding either party or its products or services which is marked as confidential or which a reasonable party knows or should know is proprietary.  Confidential Information includes, but is not limited to (a) oral and written information regarding the Platform, any inventions, software, discoveries, developments, formulas, processes, methods, trade secrets, know-how, databases, or innovations developed by or for the disclosing party, and (b) oral and written information which is used in the disclosing party’s business and is proprietary to, about, or created by the disclosing party, including but not limited to financial information, market information, sales information, customer information, personnel information, and marketing strategies designated as confidential by the disclosing party, and not generally known by those not employed by the disclosing party.

    “Customer Data” means all data supplied by the Customer to Lumavate, stored by the Customer in the Platform, or collected from an App End User via a Lumavate Hosted App.

    “Feature” is a backend tool within the Lumavate Library that can be used within Lumavate Hosted Apps. For example, a Feature could store data from a form submission, sending an SMS or email, integrate with a CRM, etc.

    “Free Plan” refers to a Platform Subscription chosen by the Customer and provided by Lumavate at no cost. The Free Plan is offered at the sole discretion of Lumavate and can be cancelled at any time for any reason with no notice required to the Customer.

    “Free Trial” refers to a trial period of a set number of days for a paid Platform Subscription. The number of days and the Platform Subscription offered are at the sole discretion of Lumavate and can be cancelled at any time for any reason with no notice required to the Customer.

    “Integrations” refers to any third-party integrations available in the Lumavate Library that allow the Platform User to integrate third-party functionality into their Lumavate Hosted Apps.

    “Lumavate Hosted App” means a Progressive Web App (PWA) created using the Platform by the Customer, Customer’s contractors, or by Lumavate through the use of Professional Services. Once created and published using the Platform, the app is hosted for the Customer using Amazon Web Services. A Lumavate Hosted App is not part of the Platform and not warranted by Lumavate.

    “Lumavate Library” refers to a collection of Pages, Features, Component Sets, and Starter Kits created and managed by Lumavate. All Customers receive select access to items in the Lumavate Library based on the Customer’s Platform Subscription. The Intellectual Property (IP) of Pages, Features, Component Sets, and Starter Kits in the Lumavate Library are solely owned by Lumavate.

    “Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.

    “Online Purchasing Portal” is where Customers can add, modify, or cancel Platform Subscriptions or Platform Premium Support subscriptions online. The Online Purchasing Portal is accessible via the Command Center.

    “Online Training” refers to Lumavate’s online documentation which may include written documentation, video tutorials, step-by-step instructions, etc. Training is provided by Lumavate to Customers via the Platform.

    “Order Form” refers to a document executed by the Customer and Lumavate that defines the Platform Subscription and any Professional Services purchased by the Customer.

    “Pages” refers to the actual pages within a Lumavate Hosted App. Features and Components Sets are often used in conjunction with a Page to provide the visual design or functionality needed for the Lumavate Hosted App. All Lumavate Hosted Apps must have at least one Page.

    “Platform” is Lumavate’s low-code platform that consists of the Command Center, Studio, and Lumavate Library. A Customer must have a valid Platform Subscription to access the Platform and Lumavate Hosted Apps.

    “Platform Subscription” refers to the subscription chosen by the Customer and provided by Lumavate that is ordered by the Customer under an Order Form, Online Purchasing Portal, or provided to the Customer free of charge. The Platform Subscription includes the term of the subscription, level of Platform access, Platform usage allowances, cost, payment frequency, and payment terms.

    “Platform User” means the individual using the Platform to access the Command Center, Studio, or Lumavate Library. Each Platform User has his or her own password protected login to the Platform.

    “Professional Services” refers to the services provided by Lumavate or its designated subcontractors as outlined in the applicable Statement of Work (SOW).

    “Progressive Web App (PWA)” refers to the delivery technology used for all Lumavate Hosted Apps created using the Platform. PWAs are accessible by App End Users on mobile, tablet, and desktop.

    “Platform Premium Support” refers to a paid support subscription available to Customers on select Platform Subscriptions. It provides email and phone support for the Platform with extended support hours and escalated response times.

    “Service Level Agreement (SLA)” means the Service Level Agreement attached as Exhibit A.

    “Starter Kit” refers to an app template for a predetermined use case that enables Platform Users to quickly create and publish a Lumavate Hosted App within the Platform. Starter Kits are part of the Lumavate Library and available to Customers via select Platform Subscriptions.

    “Statement of Work (SOW)” refers to a document included with the Order Form any time Professional Services are purchased by the Customer. The SOW includes details on the Project Approach, Description of Services and Scope, Project Assumptions, Project Timeline, Deliverables, Completion Criteria, Project Change Request Procedure, and Post-Implementation Support. A new Order Form and SOW must be executed for any new Professional Services to be completed by Lumavate on behalf of the Customer.

    “Studio” refers to the Lumavate Studio where Platform Users can build, manage, and publish Lumavate Hosted Apps. Each Customer receives one or more Studios based on the Customer’s Platform Subscription.

    “Standard Support” refers to the email only Platform support offered by Lumavate to all Customers. Lumavate’s Standard Support hours are Monday-Friday from 9 a.m. – 5 p.m. ET excluding holidays. Standard Support does not cover Lumavate Hosted Apps.

    “User Terms of Service” refers to the terms all Customers and Platform End Users are subject to when using the Platform.

  2. Provision and Use of the Platform
    1. Subject to the terms of the Customer Agreement and the Platform Subscription, Lumavate grants to the Customer and its Affiliates, a nonexclusive, non-transferable, limited right to use the Platform, and its related functionality during the term of the Platform Subscription. The parties agree to comply with all applicable United States and foreign laws and regulations, including without limitation export and re-export control laws and regulations and data privacy and security laws and regulations.
    2. Lumavate will (a) make the Platform available to the Customer during each applicable Platform Subscription term, pursuant to this Customer Agreement and the applicable Order Form or Online Ordering Portal selection by the Customer; (b) provide access to Lumavate Library as indicated in the Platform Subscription; (c) provide Standard Support for the Platform at no additional charge; (d) use commercially reasonable efforts to make the Platform available seven (7) days a week, except for (i) planned downtime (of which Lumavate will give advance electronic notice), and (iii) any unavailability caused by circumstances beyond Lumavate’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrests, acts of terror, strikes or other labor problems (other than those involving Lumavate’s employees), Internet service provider failures or delays, or denial of service attacks; and (e) provide the Platform in accordance with applicable laws and governmental regulations.
    3. Customer agrees its right to access and use the Platform is neither contingent on the delivery of any future functionality or features now dependent on any oral or written public comments made by Lumavate regarding future functionality or features.
    4. If a Customer has a paid Subscription Plan, the Customer has the right to access and use the Platform subject to the Customer’s timely payment of all applicable Fees. If the Customer has a Free Plan or Free Trial for the Platform, the Customer’s right to access and use the Platform is subject to the Free Plan and Free Trial section.
  3. Customer Responsibilities and Use Guidelines
    1. Customer must comply with the Customer Agreement and ensure Platform Users comply with the Customer Agreement, User Terms of Service, and Acceptable Use Policy. Lumavate may review conduct for compliance, but has no obligation to do so. Lumavate is not responsible for the content of any Customer Data, Lumavate Hosted Apps, or the way the Customer or its Platform Users choose to use the Platform to store or process any Customer Data. The Platform is not intended for and should not be used by anyone under the age of 18. The Customer must ensure all Platform Users are over 18 years old.
    2. Customer will retain responsibility for administering security of Customer’s account (i.e., adding and/or removing Platform Users). Lumavate shall not be responsible for the reliability or availability of the internet the Customer, Platform Users, and App End Users use to access the Platform or Lumavate Hosted Apps.
    3. Customer will comply with all applicable local, state, federal, and foreign laws in using the Platform and Lumavate Hosted Apps and, if using the Platform outside of the United States, not use the Platform in a manner that would violate any United States federal, state, or local laws or international laws.
    4. Customer shall use the Platform solely for its business purposes. Customer shall not: (a) license, sublicense, copy, sell, resell, rent, lease, transfer, assign, distribute, timeshare, or otherwise commercially exploit or make the Platform available to any third party except contractors engaged by Customer to assist in using the Platform to create and publish Lumavate Hosted Apps; (b) introduce Malicious Code to Platform; (c) interfere with or disrupt the integrity or performance of the Platform (i.e. penetration testing, load testing, etc.); (d) attempt to gain unauthorized access to the Platform or its related systems or networks; (e) modify, copy, or create derivative works based on the Platform or Training; or (f) disassemble, reverse engineer, or decompile the Platform, or access the Platform with the intent to build a competitive product or service, or copy or substantially copy any ideas, features, functions, or graphics of the Platform.
    5. All Lumavate Hosted Apps built using the Platform are the responsibility of the Customer unless the Customer has purchased an App-specific Premium Support Subscription. Lumavate Hosted Apps are subject to the use allowances identified in the Customer’s Platform Subscription.
    6. Lumavate reserves the right to suspend a Lumavate Hosted App if Lumavate believes it contains errors, violates the Customer Agreement, or has other use issues. Lumavate will notify the Customer as soon as possible after suspending the Lumavate Hosted App.
    7. Customer Data shall remain the property of the Customer and Lumavate will make the data available to Customer upon request.
    8. Customer is solely responsible for assuming any Lumavate Hosted App created complies with the Customer’s privacy policies and any and all data privacy laws and regulations. Customer is responsible for presenting its privacy policy in its Lumavate Hosted Apps.
    9. If Customer believes it is subject to the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) or any similar international data privacy law or regulation, it shall notify Lumavate in writing accordingly. Customer’s use of the Platform shall be subject to Lumavate’s reasonable GDPR charges.
  4. Non-Lumavate Products and Services
    1. Lumavate or third parties may make available (for example, through the Lumavate Library, Marketplace, or otherwise) third-party products or services, including, for example, Non-Lumavate Applications and implementation and other consulting services. Any acquisition by the Customer of such products and services, and any exchange of data between Customer and any Non-Lumavate provider, product, or service is solely between the Customer and the applicable Non-Lumavate provider. Lumavate does not warrant or support any Non-Lumavate Application or other Non-Lumavate products or services, whether or not they are designated by Lumavate as part of the Lumavate Library or otherwise, unless expressly stated otherwise in the Online Purchasing Portal or Order Form. Lumavate is not responsible for any disclosure, modification, or deletion of the Customer’s Data resulting from access by such Non-Lumavate Application or its provider. A full list of integrations that are subject to this Section is available here and is subject to change at any time.
    2. The Lumavate Library may contain Pages, Features, and Component Sets that include integrations to Non-Lumavate Applications. Lumavate may make these integrations available to the Customer based on the Customer’s Platform Subscription, but Lumavate cannot guarantee the availability of such integrations and may cease providing them without entitling the Customer to any refund, credit, or other compensation.
    3. Integrations available in the Lumavate Library may require the Customer to have an account or paid subscription to the Non-Lumavate Applications. The Customer is solely responsible for ensuring their ability to access the Non-Lumavate Application integration.
  5. Free Plan or Free Trial
    1. Lumavate may offer a Free Plan or Free Trial for its Platform Subscription. Access to the Free Plan or Free Trial is subject to the terms and conditions of this Customer Agreement. In the event of a conflict between this Section and any other portion of this Customer Agreement, this Section shall control.
    2. The Free Plan or Free Trial is provided to Customers without charge up to certain limits as described in the Online Purchasing Portal, Order Form, Lumavate Website, or Documentation. Usage over these limits requires Customer to purchase a paid Platform Subscription.
    3. Customer agrees that Lumavate, in its sole discretion and for any or no reason, may terminate the Customer’s use of or access to the Platform and Lumavate Hosted Apps or any part thereof. Customer agrees that termination of use or access to the Free Plan or Free Trial may be without prior notice, and Customer agrees Lumavate will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data and content from the Free Plan or Free Trial, if applicable, prior to termination of access to the Free Plan or Free Trial for any reason, provided that if Lumavate terminates Customer’s Account, except as required by law, Lumavate will provide Customer with a reasonable opportunity to retrieve Customer Data and content.
    4. Customer can upgrade their Free Plan or Free Trial at any time by using the Online Purchasing Portal or completing an executed Order Form between the Customer and Lumavate.
    5. Customer can cancel their Free Plan or Free Trial at any time using the Online Purchasing Portal or contacting Lumavate Support at support@lumavate.com.
  6. Fees and Payment
    1. Customer will pay all fees specific in the Online Purchasing Portal or each Order Form (“Fees”).
    2. Customer will provide Lumavate with valid and updated credit card information, or with a valid Order Form or alternative document reasonably acceptable to Lumavate. If Customer provides credit card information to Lumavate via the Online Purchasing Portal, Customer authorizes Lumavate to charge such credit card for all Fees due hereunder. Except as otherwise set forth in the applicable Order Form, payment of Fees shall be made in advance, either annually or monthly as stated in the Order Form or Online Purchasing Portal. Unless otherwise stated in the Order Form, invoiced Fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Lumavate and notifying Lumavate of any changes to such information, as well as payment of any fees or charges associated with Customer’s payment other than those charged by Lumavate or its Affiliates bank.
    3. If payment of any Fees is not received by Lumavate by the due date, then, without removing Lumavate’s other rights or remedies, (a) the Fees may accrue late interest at the rate of one and half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Lumavate may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2.
    4. If any Fees owed by Customer are 30 days or more overdue, (or 10 days or more days overdue in the case of amounts Customer has authorized Lumavate to charge to the Customer’s credit card), Lumavate may, without limiting the other rights and remedies, accelerate Customer’s unpaid Fees obligations so that all obligations become immediately due and payable, and/or suspend your access to the Platform and any Lumavate Hosted Apps built in the Platform until such amounts are paid in full; provided that if Customer is paying by credit card or direct debit and payment has been declined by the applicable financial institution, Lumavate will give customer at least ten (10) days written notice that Customer’s payment is overdue before suspending the Customer’s access to the Platform.
    5. Customer agrees to pay all taxes (including without limitation sales, use, excise, value added, and gross receipts) levied on this Customer Agreement whether or not these are expressly stated in any Online Purchasing Portal or Order Form, except taxes based on Lumavate’s income. Customer may provide a tax exemption number or affidavit of exemption to invoices@lumavate.com, but agree to indemnify and hold Lumavate harmless for any taxes, penalties, and interest that may arise if the claimed exemptions are disallowed.
    6. In the course of providing customer service, Lumavate may incur travel expenses on behalf of the Customer. All reasonable out-of-pocket travel expenses incurred by Lumavate in order to render services to the Customer will be invoiced to the Customer, including travel, meals, lodging, supplies, and incidental expenses. Travel must be indicated in the Online Purchasing Portal or Order Form and approved by the Customer to be reimbursable.
    7. Unless otherwise stated in the Online Purchasing Portal or Order Form, (a) all Platform Subscriptions, Platform Premium Support Subscriptions, App-specific Premium Support Subscriptions, and Professional Services Retainer Hour Subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the renewal Platform Subscriptions, Platform Premium Support Subscriptions, App-specific Premium Support Subscriptions, and Professional Services Retainer Hour Subscriptions,  pricing may increase up to three percent (3%) over the prior term when Lumavate provides 60 days written notice prior to the automatic renewal. Either can give the other the notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.
  7. Warranties
    1. Lumavate represents and warrants that: (a) it owns or otherwise has sufficient rights to the Platform to grant rights and licenses granted herein; (b) use and availability of the Platform will conform to Section 2.2; (c) Lumavate will not materially decrease the overall functionality of the Platform excluding any Non-Lumavate Application integrations; (c) any Professional Services rendered will substantially conform to the terms of the Customer Agreement. For any breach of a warranty above, the Customer’s exclusive remedies are those described in the Termination section.
    2. Customer warrants that Customer has the legal authority to bind its employees or the applicable entity to the terms and conditions contained herein.
    3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THERE ARE NO REPRESENTATIONS, PROMISES, WARRANTIES, OR UNDERSTANDINGS RELATING TO THE PLATFORM, LUMAVATE LIBRARY, LUMAVATE HOSTED APPS, OR PROFESSIONAL SERVICES PROVIDED UNDER THIS CUSTOMER AGREEMENT. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, LUMAVATE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE REGARDING MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. LUMAVATE MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, OR SUITABILITY OF ANY OF THE MATERIAL CONTAINED WITHIN OR AVAILABLE THROUGH THE PLATFORM OR ONLINE TRAINING. LUMAVATE MAKES NO WARRANTY THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, COMPATIBLE WITH ANY HARDWARE OR SYSTEMS, SOFTWARE CONFIGURATIONS, OR WILL MEET THE ULTIMATE REQUIREMENTS OF THE CUSTOMER.
  8. Confidentiality
    1. Each party receiving or having access to Confidential Information of the other party agrees to maintain the confidentiality of such Confidential Information and to only use it in carrying out its rights and obligations under this Customer Agreement for a period of two (2) years after termination of this Customer Agreement. Each party will protect the Confidential Information of the other party with the same degree of care it exercises relative to its own Confidential Information, but not less than reasonable care. Each party receiving Confidential Information of the other party agrees that it shall not sublicense, assign, transfer or otherwise display, or disclose such Confidential Information to any third party and shall not reproduce, perform, display, prepare derivative works of, or distribute the Confidential Information except as expressly permitted in this Customer Agreement.
    2. The obligations of the parties in respect of the Confidential Information of the other party shall not apply to any material or information that: (a) is or becomes a part of the public domain through no act or omission by the receiving party; (b) is independently developed by employees or consultants of the receiving party without use or reference to the Confidential Information of the other party; (c) is disclosed to the receiving party by a third party that, to the receiving party’s knowledge, was not bound by a confidentiality obligation to the other party; or (d) is demanded by a lawful order from any court or other body empowered to issue such an order. Each party agrees to notify the other promptly of the receipt of any such order, provide the other with a copy of such order and to provide reasonable assistance to the disclosing party (at the disclosing party’s expense in the case of reasonable out-of-pocket expenses) to object to such disclosure.
    3. Customer and Lumavate acknowledge that the Platform shall be used to build Lumavate Hosted Apps pursuant to the terms and conditions of this Customer Agreement and any related Addenda. Lumavate Hosted Apps are to be built in a manner that Personally Identifiable Information (PII), Protected Health Information (PHI), Family Educational Rights and Privacy Act (FERPA), Payment Card Industry Data Security Standard (PCI-DSS), or other confidential data is only permitted to flow through the Platform and to be stored only in Customer’s native systems and not in the Platform. As a result, Lumavate’s access to the Customer’s PII, PHI, FERPA, PCI-DSS, or other confidential data shall remain limited. Customer expressly acknowledges that, for Lumavate Hosted Apps developed by anyone other than Lumavate, Lumavate may not be aware of data flowing through the Platform. In light of this foregoing understanding, and notwithstanding any other provision of this Customer Agreement and without limiting the Customer’s other rights and Lumavate’s other obligations in this Customer Agreement, Lumavate assumes no liability for any breach of such regulated data inappropriately stored in the Lumavate Platform.
  9. Limitation of Liability
    1. EXCEPT FOR LIABILITY ARISING FROM (A) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, (B) CUSTOMER’S BREACH OF SECTION 3, AND (C) CUSTOMER’S OBLIGATION TO PAY ALL FEES RELATED TO THIS CUSTOMER AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNT PAID BY AND/OR DUE FROM CUSTOMER UNDER THIS CUSTOMER AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
    2. EXCEPT FOR CUSTOMER’S BREACH OF SECTION 3, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, DATA LOSS, LOST PROFIT, OR COMPUTER FAILURE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  10. Indemnification
    1. Lumavate will defend, indemnify and hold Customer harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with any actions or claims made or brought by a third party against Customer alleging that the Platform infringes any Intellectual Property right of any third party, provided that Customer (a) gives prompt written notice of any such claim to Lumavate; (b) gives to Lumavate sole control of the defense and resolution of such claim; and (c) provides reasonable information and assistance to Lumavate in defending such claim.
    2. If the Platform is held to infringe, or in Lumavate’s opinion the Platform is likely to be held to infringe any Intellectual Property rights of a third party, Lumavate may at its sole discretion and expense, either: (a) secure the right for Customer to continue use of the infringing Platform; (b) replace or modify the infringing Platform to make it non-infringing, provided such Platform contains substantially similar functionality; or (c) terminate the licenses to the infringing Platform modules granted hereunder. If Lumavate elects to terminate the Platform Subscription under the foregoing provision, as Customer’s sole and exclusive remedy, Lumavate shall refund to Customer all prepaid license fees for the infringing Platform items indicated on the related Online Purchasing Portal or Order Form.
    3. Customer shall indemnify, defend, and hold Lumavate harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with any actions or claims (a) made or brought against Lumavate by a third party based upon the content of  Customer Data or Customer’s use of the Platform in violation of this Customer Agreement or applicable law; or (b) that any Customer Data, Customer Pages, Customer Features, Customer Components, Customer Starter Kits, or Customer apps infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets, or licenses, except to the extent such infringement is caused by Customer’s use of the Platform or Lumavate Library in accordance with the terms of the Customer Agreement.
  11. Termination
    1. Either Customer or Lumavate may terminate this Customer Agreement and any or all Platform Subscriptions created in the Online Purchasing Portal or Order Forms as a result of a material breach of this Customer Agreement by the other party, if (a) such party provides written notification to the other party of the material breach, and (b) such material breach is not cured or resolved within thirty (30) days of notification, or, in the case of a failure to pay fees in a timely manner by Customer, the material breach is not cured or resolved in a fifteen (15) day period.
    2. Customer may terminate any Platform Subscription at any time, however termination shall not result in any refund of payments made or payable to Lumavate during the current Platform Subscription, but only results in the termination of automatic renewals and any future payments caused by such automatic renewals no longer being due to Lumavate.
    3. In the event of expiration of the Term or termination of this Customer Agreement, Platform Subscription, or any Order Form, Customer’s access and use of the Platform, Customer’s access to Lumavate Hosted Apps built using the Platform, and Customer’s rights under this Agreement shall cease immediately upon expiration or termination. Lumavate will delete all Customer Data 30 days after termination of this Customer Agreement. Customers can obtain their data stored in Lumavate through the Studio prior to the termination of this Customer Agreement or request Lumavate to provide a copy of the Customer Data within thirty (30) days of the termination of this Customer Agreement. Each party receiving or having access to Confidential Information of the other party agrees to maintain the confidentiality of such Confidential Information and to only use it in carrying out its rights and obligations under this Customer Agreement for a period of two (2) years after termination of this Customer Agreement.
  12. Publicity
    Customer agrees to: (a) allow Lumavate to use the Customer’s name and logo in Lumavate’s customer list; (b) allow Lumavate to reference Customer in a press release, social media posts, editorial, blog post, podcast, video, etc. announcing or sharing how the Customer uses the Platform; and (c) allow Lumavate to share screenshots of Customer’s Lumavate Hosted App(s), links to Customer’s Lumavate Hosted App(s), results, metrics, and a general overview of the Customer’s Platform usage that will be shared across all Lumavate owned properties, including, but not limited to email, website, social media, video, podcast, marketing materials, presentations, PR, paid ads, and other channels owned and operated by Lumavate.
  13. Force Majeure
    Neither party will be responsible for any failure or delay in its performance under this Customer Agreement due to causes beyond its reasonable control which makes performance commercially impractical.
  14. Notices
    Notice to the other party to this Customer Agreement shall be in writing and shall be deemed received at the earlier of: (a) when received, if hand delivered; (b) five (5) days after being mailed by U. S. Postal Service, postage prepaid; (c) one (1) business day if sent via overnight courier service (either Federal Express, Express Mail, or equivalent); or (d) upon confirmed transmission if sent by facsimile. Notices to Lumavate shall be sent to: Lumavate; 1950 E. Greyhound Pass, Suite 18-352, Carmel, IN 46033.
  15. Assignment
    Neither party may assign, transfer, or delegate any of its rights, duties, or obligations hereunder, in whole or in part, without the prior written consent of the other party, except that either party may assign this Customer Agreement in whole or in part, in connection with a merger or in connection with the sale of all or substantially all of the contracting entity’s assets related thereto. Upon the occurrence of a merger, consolidation, or sale of stock or assets, the Subject Party shall provide thirty (30) days advance written notice of such change to the other Party. Any other attempt to sublicense, assign, or transfer the Customer Agreement by the Customer shall be null and void. Any assignment of all or any part of this Customer Agreement by either Party shall not relieve that Party of the responsibility for performing its obligations hereunder to the extent that such obligations are not satisfied in full by the assignee.
  16. Intellectual Property
    1. Lumavate owns all rights, title, and interest, including intellectual property rights, in and to any (a) materials or other tangible items it develops including the Platform and items in the Lumavate Library (either while performing the Professional Services or independent of this Customer Agreement); (b) its business methods, processes, know-how, and other intangible property; (c) any derivative works, enhancements, and/or modifications to the foregoing (“Lumavate IP”). Customer does not obtain any rights in Lumavate IP other than use in connection with Customer’s use of the Platform, Lumavate Library, and Lumavate Hosted Apps into which Lumavate IP is incorporated. Lumavate is free to use for any purpose its general knowledge, skills and experiences, and any ideas, concepts, know-how, methodologies; and techniques that it acquires or uses in the course of providing the Professional Services for any purpose.
    2. Lumavate grants Customer, Customer’s Affiliates, and their respective personnel, a non-transferable, nonexclusive, and worldwide license to use any of Lumavate’s IP incorporated into any of the Lumavate Hosted Apps solely for the Customer’s business use for the duration of this Platform Subscription and Customer Agreement.
    3. Customer or its third-party licensors own all rights, title, and interest, including intellectual property rights, in and to any information, graphics, artwork, equipment, facilities, software, data, or other materials Customer provides to Lumavate or the Platform under this Customer Agreement (“Customer IP”), and Customer shall obtain any relevant consents and licenses necessary for Lumavate to perform its obligations under this Customer Agreement. Customer grants Lumavate and its personnel a non-exclusive, worldwide, royalty-free, fully paid-up license to use, display, modify, and prepare derivative work of Customer IP as required for Lumavate to perform such obligations.
  17. General
    This Customer Agreement shall be governed by the laws of the State of Indiana without reference to its choice of law provisions. This Customer Agreement and any exhibits, Platform Subscription, Online Ordering Portal, Order Forms, or SOWs constitute the entire understanding between the parties with respect to the subject matter hereof. No provision of this Customer Agreement found to be illegal, unenforceable, or invalid shall affect the legality, enforceability, or validity of any other provision(s) of this Customer Agreement, all of which shall remain in full force and effect. Customer authorizes Lumavate to enter into contracts with subcontractors and other third parties to carry out Lumavate’s obligations under this Customer Agreement. In all matters relating to this Customer Agreement, Customer and Lumavate shall act as independent contractors. Except as specified herein, neither party shall represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity.
  18. Relationship of the Parties
    Nothing herein shall be construed to place the Lumavate or the Customer in a relationship of partners or joint ventures or to make either Party the agent or legal representative for the other for any purpose whatsoever. Each Party further covenants that it shall take no action and shall make no representation that would create an apparent agency, employment, partnership, or joint venture. Neither Party shall have the power, expressed or implied, to obligate or bind the other in any manner whatsoever. Neither Party shall be responsible for any act or omission of the other or any employee of the other. No employee of Lumavate is or shall be considered an employee of Customer for any purpose in connection with the performance or services under this Customer Agreement.

 

EXHIBIT A: SERVICE LEVEL AGREEMENT

Availability
Lumavate shall use commercially reasonable efforts to make the Platform generally available twenty-four (24) hours a day, seven (7) days a week at a rate of 99% uptime, (“Uptime Commitment”) except for: (a) planned downtime, which shall conform to the following notification and scheduling guidelines:

For Lumavate Platform updates that affect Lumavate Hosted Apps and require planned downtime:

  • Notice Period:
    • 24-hour notice for a planned outage less than five (5) minutes in duration.
    • 48-hour notice for a planned outage greater than five (5) minutes in duration.
  • Scheduling Window:
    • 8 p.m. to 5 a.m. ET for any planned outage less than five (5) minutes in duration.
    • 10 p.m. to 5 a.m. ET for any planned outage greater than five (5) minutes in duration.

For Platform updates that do not affect Lumavate Hosted Apps (i.e. Lumavate Command Center, Lumavate Library, or Lumavate Studio updates) that require planned downtime:

  • Notice Period:
    • 8-hour notice for a planned outage less than fifteen (15) minutes in duration.
    • 48-hour notice for a planned outage greater than fifteen (15) minutes in duration.
  • Scheduling Window:
    • 8 p.m. to 5 a.m. ET for any planned outage less than fifteen (15) minutes in duration.
    • 10 p.m. to 5 a.m. ET for any planned outage greater than fifteen (15) minutes in duration.

(b) any unavailability caused by circumstances beyond Lumavate’s reasonable control, including without limitation, computer, or telecommunications failure or delays involving hardware or software not within Lumavate’s possession or reasonable control, and network intrusions or denial of service attacks; (c) any period of unplanned downtime lasting five (5) minutes or less in which auto recovery systems restore service; or (d) a disruption in the connection between the server on which the Platform is located based on a failure of Customer’s connection to the public Internet or a general failure of the public Internet not related specifically to the Platform’s infrastructure.

If Lumavate fails to meet the Uptime Commitment for two (2) consecutive calendar months or fails to meet the Uptime Commitment for any three (3) calendar months within any twelve (12) month period, then by notice given within thirty (30) days after the end of the month which triggered Customer’s right of termination, Customer may terminate this Customer Agreement, and receive a refund of any pre-paid fees for periods after the effective date of termination. The provisions of this Service Level Agreement state Customer’s sole and exclusive remedy for any service level deficiencies of any kind.