These General Terms and Conditions (these “General Terms”) apply to the Products and Services provided by Luna Solutions, LLC, a Delaware limited liability company, with offices located at 261 W. Data Drive, Draper, Utah 84020 or its Affiliates (collectively, “Luna”) to the client listed on the Order Form or Online Order (“Client” and, together with Luna, the “Parties” and each a “Party”). Luna’s offer to provide the Products and Services to Client, and Luna’s acknowledgement of any applicable Order Form(s), is expressly limited to and conditioned on Client’s acceptance of the Terms (as defined herein). Luna objects to and rejects all other Client terms, in any form, that are different from or additional to the Terms.
1. Interpretation, Precedence.
1.1. Headings in the Terms are for reference only and shall not affect the interpretation of such documents. For purposes of these documents, unless the context otherwise requires:
(a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “but not limited to”;
(b) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Terms as a whole;
(c) references to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and
(d) references to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder.
1.2. The Parties have participated jointly in the negotiation and drafting of the Terms. The Terms shall be construed as if drafted jointly by the Parties and no presumption, rule, or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of the Terms.
1.3. These General Terms incorporate the provisions of any applicable Additional Terms and Conditions and any Order Forms executed by the Parties and shall be interpreted according to the following:
(a) To the extent that any contradiction exists among or between Order Forms, any applicable Additional Terms and Conditions, and these General Terms, the following order or precedence shall govern such contradicting provisions: first, any applicable Order Form (with the most recently executed Order Form taking precedence); second, any applicable Additional Terms and Conditions; and third, these General Terms.
2.1. “Additional Terms and Conditions” means any additional terms and conditions for specified Products and Services as more fully set forth in Sections 17 through 21 of these General Terms.
2.2. “Affiliate” means any Person that directly or indirectly is under the control of, or under common control with, or exclusively managed by a Party or an Affiliate of a Party. For purposes of this definition, “Control” means the legal, beneficial, or equitable ownership, directly or indirectly, whether through the ownership of voting shares, by contract or otherwise. Affiliates shall include such entities whether now existing or later established by investment, merger or otherwise, including the successors and assigns of such entities. A Person is an Affiliate only during the period that Control exists.
2.3. “Agents” means, collectively, the respective officers, directors, employees, associates, controlling Persons, lenders, attorneys, accountants, or contractors of either a Party or its Affiliates.
2.4. “API” means Luna’s application program interface through which Luna provides access to the Designated Services.
2.5. “Availability” shall have the meaning ascribed to it in Section 13.2 herein.
2.6. “Client Content” means any content, rights, materials, data, information or other properties owned, licensed, controlled or provided by Client and designated for use by Luna in connection with Luna’s provision of the Products and Services. Client Content excludes Luna’s Confidential Information and or Product and Service. For the avoidance of doubt, Client Content does not include information provided directly to Luna by Client’s Customers through interactions with Luna’s systems or processes.
2.7. “Confidential Information” means any nonpublic or proprietary material that, if disclosed in writing or other tangible form is clearly labeled or designated as “confidential,” or that a reasonable person should consider to be confidential given the circumstances surrounding disclosure. Confidential Information includes, without limitation, information relating to:
(a) Luna’s business, technology and operations or that of its respective Affiliates, customers, suppliers or other relationships, including know-how or software or any information relating to business operations, sales information, personnel, customers/patients/clients, vendors, healthcare providers, finances and financial plans, patents and patent applications, license and other contractual agreements, regulatory matters, computer and information systems, accounting and other financial information, insurance, associate relations and other human resource information, marketing and merchandising information, including current and future product information, research, development, inventions, manufacture, trade secrets, purchasing and engineering, whether it is expressed orally, on paper, disk, diskette, magnetic media, optical media, monitor, screen, or any other medium or form of expression;
(b) all analyses, compilations, studies, or other documents or records prepared by the Luna that contain or otherwise reflect such Confidential Information; and
(c) the Terms, as well as any related documents.
Notwithstanding the foregoing, Confidential Information shall not include information that:
(a) is or becomes generally available to the public other than as a result of Client’s breach of Section 5;
(b) is or becomes available to Client on a non-confidential basis from a third-party source, provided that such third party’s disclosure of information does not violate any duty of the third party to not disclose the information;
(c) was in Client’s possession prior to Luna’s disclosure of such information, as shown by competent evidence to establish such knowledge; or
(d) is the subject of a written permission to disclose provided by Luna (other than as provided for in the Terms or any amendments hereto).
For applicable Clients only, and without limiting the generality of the foregoing, if Client has entered into a Business Associate Agreement with Luna, any PHI (as defined by the Health Insurance Portability and Accountability Act of 1996) will not be considered Confidential Information hereunder and instead will be protected in accordance with such Business Associate Agreement.
2.8. “Customers” means any Persons intended by the Parties to access the Products and Services through Client, whether as a result of such Products and Services being publicly available (e.g., via a website, kiosk or mobile application) or a result of being provided access credentials by Client.
2.9. “Deliverables” means those items expressly identified in an Order Form as “Deliverables” to be supplied to Client by Luna under and subject to the Terms.
2.10. “Designated Services” means Luna’s Products and Services commissioned to be provided through the SDK or through a web interface.
2.11. “Documentation” means Luna’s instructions, branding guidelines, and other provided documentation found here. Documentation may include future branding guidelines for Affiliate entities providing subcontracted Products and Services under these Terms.
2.12. “Eastern Hemisphere Client” means, for purposes of Section 13.1, as indicated on a Client’s Order Form.
2.13. “Effective Date” means the effective date specified in the applicable Order Form.
2.14. “Force Majeure Event” means an act beyond an affected Party’s reasonable control, including:
(a) acts of God;
(b) flood, fire, explosion, epidemics, quarantine restrictions, strikes, or embargoes;
(c) acts of a public enemy, war, riot, terrorism or civil unrest;
(d) actions, embargoes or blockades in effect on or after the date of the Terms;
(e) cyber attack;
(f) national or regional emergency; or
(g) any other event which is beyond the reasonable control of such Party.
The Parties agree that the COVID-19 pandemic and the war in Ukraine, each on-going as of the Effective Date, may result in Force Majeure Events.
2.15. “Impact Report” shall have the meaning ascribed to it in Section 14.1 herein.
2.16. “Initial Term” means from the Effective Date to the end of the period of time specified in the applicable Order Form, up to the date of renewal.
2.17. “Integrated Product” means Luna Products and Services that incorporates the SDK (or the Designated Services through a web interface) and is capable of accessing the Designated Services through the use of the SDK or the web interface.
2.18. “Intellectual Property” means:
(a) patents, patent disclosures and inventions, whether patentable or not;
(b) trademarks, including any corporate names and trade names, trademarks, service marks, designs, logos, uniforms, mascots, characters, symbols, identifications, other names (including personal and estate names) and/or proprietary designs, and all goodwill associated therewith or incorporated therein;
(c) domain names, together with all of the goodwill associated therewith,
(d) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases;
(e) trade secrets, know-how and other confidential information; and
(f) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
2.19. “Intellectual Property Rights” means all rights in and to Intellectual Property.
2.20. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
2.21. “Legal Action” means any demand, claim, suit, action, investigation, proceeding, or cause of action brought or made regarding a dispute of legal rights and duties.
2.22. “Losses” mean all losses, damages, liabilities, deficiencies, claims, judgments, interest, awards, penalties, obligations, fines, charges, costs and expenses of whatever kind, including reasonable attorneys’ fees and court costs, incurred by a Party as a result of or in connection with the provision or receipt of the Products and Services, including the cost of enforcing any right hereunder and the cost of seeking insurance for any other Losses.
2.23. “Luna Personnel” means all Luna employees and subcontractors engaged by Luna to provide the Products and Services to the extent such are performing obligations pursuant to the Terms.
2.24. “Luna Property” means any materials, information, measurements, analysis, outcomes or reports provided, developed or made available by Luna in the course of performance of the Products and Services to Client. Luna Property does not include the Products and Services or Client Content.
2.25. “Monthly User” by product is defined as:
(a) For Virtual Try-On: Monthly User is the number of unique ditto_ids (or scan_ids) called in a calendar month. “Ditto_id” (or “scan_id”) is a unique 40-character hexadecimal string that identifies and recalls a Customer’s face capture and corresponding face reconstruction.
(b) For Online PD Tool: Monthly User is the number of unique PD Measurements called by the Client in a calendar month.
(c) For Frame Recommendations Lite: Monthly User is (1) the number of unique ditto_ids (or scan_ids) called in a calendar month and (2) the number of unique calls in a calendar month.
(d) For Online Lensometer: Monthly User is a scan that ends with any result, provided, however that a valid scan shall be counted as one valid scan per month per one device identifier (i.e. if multiple scans shall be made through one device during the month period, all scans shall be considered only as one valid scan).
(e) For Prescription Renewal Platform: Monthly User is the number of unique users who are issued one or more prescriptions in a calendar month.
(f) For Visual Acuity: Monthly User is a scan that ends with any result, provided, however that a valid scan shall be counted as one valid scan per month per one device identifier (i.e. if multiple scans shall be made through one device during the month period, all scans shall be considered only as one valid scan).
(g) For Online Refraction Exam Platform: Monthly User is the number of unique approved prescriptions in a calendar month.
2.26. “Order Form” means any online order or order form executed by the Client and Luna agreeing to the provisions or arrangement of the Products and Services that references these General Terms.
2.27. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
2.28. “Products and Services” mean any products or services to be provided under an Order Form, as described in more detail in an Order Form.
2.29. “Renewal Term” means from the end of the Initial Term to the end of the renewal duration specified in applicable Order Form(s).
2.30. “SDK” means Luna’s software development kits, tools, or other similar software provided to Client in connection with these Terms. SDK also includes: (a) applicable Documentation, (b) Luna code within the Integrated Product that governs and controls access and caching of data and updates to the Designated Services, as implemented by Client, (c) any API related to the Designated Services, and (d) any web interface provided by Luna in connection with the foregoing.
2.31. “Scheduled Maintenance” shall have the meaning ascribed to it in Section 13.2 herein.
2.32. “Terms” means these General Terms, any applicable Additional Terms and Conditions, and any applicable Order Form(s), collectively.
2.33. “Western Hemisphere Client” means, for purposes of Section 13.1, as indicated on a Client’s Order Form.
3. Provision of Products and Services.
3.1. Luna shall provide or arrange for the provision of the Products and Services to Client as described in each applicable Order Form, in accordance with the Terms.
3.2. Upon execution of an Order Form, Client will:
(a) Designate a senior executive interested in the success of the Products and Services who has the ability to timely resolve issues and delays arising from Client (“Client Contact”); and
(b) Designate and provide Luna with contact information for an individual who will be dedicated to overseeing and who has been assigned to coordinate all matters involving the provision of the Products and Services for such Order Form (“Implementation Sponsor”).
Client may designate a different individual to serve in either of the foregoing roles from time to time by providing written notice to Luna.
3.3. In providing the Products and Services, Luna shall be entitled to rely upon and act in accordance with any instructions, guidelines, data, or information provided by the Client Contact, Implementation Sponsor, and any other Client personnel who has actual or apparent authority to provide such instructions, guidelines or information. Luna shall incur no liability for such reliance described in this Section 3.3.
3.4. Luna shall have the right to subcontract its duties and obligations under the Terms, including the provision of Products and Services, at any time, including to any Luna Affiliate or to any other third party. Luna shall remain responsible for the provision of the Products and Services by such subcontractors and their compliance with the Terms.
3.5. If Luna Personnel are required to enter Client’s property to provide Products and/or Services, such Personnel shall observe reasonable written rules and regulations governing their presence on Client’s property to the extent Client communicates them to Luna Personnel upon accessing the property.
4. Fees and Costs.
4.1. Fees owed under an Order Form shall be paid pursuant to instructions provided in the Order Form.
4.2. Unless otherwise stated in an applicable Order Form, the Party or Luna Affiliate owing fees under an Order Form shall pay such other Party all invoiced fees and expenses due within fifteen (15) days after receipt of such invoice, except for any amounts disputed in accordance with Section 4.3 of these General Terms. All payments hereunder shall be in US dollars and made by check, credit card or wire transfer.
4.3. The Party or Luna Affiliate owing a fee under an Order Form may, in good faith, dispute any invoiced amounts by providing the other Party with written notice (email acceptable) of the dispute within five (5) business days of receipt of the applicable invoice. Each Party shall promptly escalate any disputed amounts to their respective Chief Financial Officers (or if no such position exists at such Party, then an officer of the Party having authority to resolve financial disputes) and make such individual reasonably available to resolve the dispute until the Parties no longer dispute such invoiced amounts. No ongoing dispute shall affect any of Client’s other obligations hereunder, including the obligation to pay any amounts not in dispute.
4.4. Each Party will assume all of its own direct costs associated with the provision of services by such Party pursuant to the Terms, provided, however, that Client agrees to reimburse Luna for all actual, documented, and reasonable travel and out-of-pocket expenses incurred by Luna in connection with the provision of the Products and Services.
4.5. All fees and costs payable by a Party or Luna Affiliate under the Terms are exclusive of taxes and similar assessments. Invoiced amounts do not include any federal, state or local taxes that may apply to the Products and Services. To the extent applicable, Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by Client under the Terms. Luna is responsible for all taxes imposed on Luna’s income, property, or Personnel, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments and disability benefits.
5. Confidential Information.
5.1. Client acknowledges that, in connection with the Terms, Client may have access to Confidential Information belonging to Luna. If Client receives any such Confidential Information, Client shall:
(a) Hold, maintain, protect and safeguard the confidentiality of such Confidential Information with at least the same degree of care as Client would protect its own confidential information, but in no event with less than a commercially reasonable degree of care;
(b) Not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Terms; and
(c) Not disclose any such Confidential Information to any person or entity, except to Client’s Agents who need to know the Confidential Information to assist Client, or act on its behalf, to exercise its rights or perform its obligations under the Terms.
5.2. If Client becomes legally compelled to disclose any Confidential Information, including with respect to any Legal Action related to an alleged breach of the Terms, Client shall, to the fullest extent permitted by applicable law:
(a) Provide Luna with prompt notice prior to making such disclosures so that Luna may seek a protective order or other appropriate remedy; and
(b) Cooperate in good faith with Luna in respect of any such protective order or other remedy.
If such protective order or alternate remedy is not obtained, or if Luna waives compliance with the provisions of this Section 5.2, Client shall furnish only that portion of the Confidential Information that Client is legally required to disclose. Further, Client shall, at its sole expense, exercise commercially reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
5.3. Upon the termination of the Terms or upon written request from Luna (whichever occurs earlier), Client shall, within 30 days, return to Luna any copies of Confidential Information in Client’s possession, provided, that Client may instead, at the option of Luna, destroy any copies of any Confidential Information in Client’s possession and provide Luna with a written certification of such destruction.
5.4. Notwithstanding Section 5.3, Client:
(a) Shall have no obligation to return or destroy Confidential Information backed up from a computer system in the ordinary course of Client’s business, provided that all such backed up Confidential Information remains subject to the Terms;
(b) Shall not be required to return or destroy its internally-prepared analyses and interpretative documents and data which may contain Confidential Information, provided that such documents and data shall remain subject to the Terms; and
(c) Shall not be deemed to have retained or failed to destroy any Confidential Information contained on servers or back-up sources if such Confidential Information is deleted from local hard drives and no attempt is made to recover such Confidential Information from such servers or back- up sources.
5.5. Client acknowledges and agrees that any breach or threatened breach of this Section 5 by Client or its Agents or Affiliates may cause Luna to suffer irreparable injury for which there may be no adequate legal protection, remedy, or compensation. Accordingly, Client agrees that Luna shall be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity, of Client’s obligations under this Section 5, without the need to post a bond in respect of the security thereof, as well as such further legal or equitable relief as may be granted by a court of competent jurisdiction. Such remedies shall not be deemed to be in addition to and not exclusive of all other remedies available at law or in equity.
6. Representations and Warranties.
6.1. Client represents and warrants that:
(a) It is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering;
(b) It has the full right, power, authority and ability to agree to the Terms and to perform the obligations and grant any rights and licenses thereunder;
(c) The execution of any Order Form by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of Client;
(d) When executed, any Order Form will constitute a legal, valid and binding obligation of Client, enforceable against Client in accordance with its terms;
(e) The execution of the Terms will not result in any breach of, or require any consent under any other agreement to which Client is a party;
(f) Client has read and familiarized itself with the applicable Documentation and Client shall integrate/use the Products and Services in accordance with the Documentation; and
(g) It shall not use the Products and Services other than in accordance with the Terms and in compliance with all applicable laws and regulations.
6.2. THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” LUNA SPECIFICALLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THE TERMS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
6.3. LUNA DOES NOT PROVIDE MEDICAL ADVICE. THE PRODUCTS AND SERVICES DO NOT INCORPORATE MEDICAL ADVICE, AND LUNA’S PROVISION OF OR ARRANGEMENT OF THE PRODUCTS AND SERVICES DOES NOT CONSTITUE THE PRACTICE OF MEDICINE. ANY INFORMATION PROVIDED TO CLIENT AND/OR CLIENT CUSTOMER OR END USER BY LUNA AS A RESULT OF OR USE OF THE PRODUCTS AND SERVICES ARE BEING PROVIDED SOLELY FOR EDUCATIONAL AND INFORMATIONAL BENEFIT AND SHOULD NOT BE CONSIDERED MEDICAL ADVICE, DIAGNOSIS, TREATMENT OR A SUBSTITUTE FOR PROFESSIONAL MEDIAL ADVICE. THIS INFORMATION IS NOT INTENDED TO MODIFY OR REPLACE THE SOUND CLINICAL JUDGMENT IN ANY DELIVERY OF HEALTHCARE SERVICES.
7. Breach and Remedies.
7.1. The following shall not constitute a breach by Luna of the Terms, and Luna shall not be liable for any Losses sustained or incurred by Client arising out of or relating to:
(a) The failure to perform, or any delay in performing, any provision of the Terms (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from a Force Majeure Event. If Luna’s performance hereunder is affected by a Force Majeure Event, Luna shall give notice to Client, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. In case of a Force Majeure Event, Luna may suspend performance of the Terms until such time as the Force Majeure Event passes.
(b) The failure to perform, or any delay in performing, any provisions of the Terms resulting from a suspension of services by Luna pursuant to Section 8.
(c) The failure to perform, or any delay in performing, any provision of the Terms as a result of an act or omission of Client, its Agents, Affiliates, Customers or its or their agents, subcontractors, consultants or employees.
(d) Any act or decision of a regulatory authority or court or any change in applicable Law preventing Luna from providing the Products and Services.
7.2. If Client breaches the Terms, it shall provide Luna written notice of such breach as soon as Client becomes aware of the breach.
7.3. If Client breaches the Terms Luna may, in addition to availing themselves of all other remedies under the Terms or at law (which Luna does not waive by the exercise of any rights hereunder) suspend Client’s access to the Products and Services.
7.4. If Client breaches the Terms, including, but not limited to, by failing to timely pay invoiced fees and costs, Luna may, in addition to availing itself of all other remedies under the Terms or at law (which Luna does not waive by the exercise of any rights hereunder) charge Client an interest on late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly, and all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
8. Term, Termination and Suspension.
8.1. The Terms are effective as of the Effective Date and shall continue in effect until the expiration of the Initial Term or, as applicable, any Renewal Term, unless earlier terminated. The Terms shall renew automatically unless a Renewal Term is stated in an applicable Order Form.
8.2. Luna may terminate the Terms prior to the end of the Initial Term or, as applicable, any Renewal Term:
(a) If Client commits a breach of its obligations or representations under the Terms and such breach is not cured to the satisfaction of Luna within 7 days of the earlier of (i) breach, (ii) Luna’s discovery of the breach, or (iii) Luna’s receipt of written notice from Client that Client has committed a breach, provided that Luna may terminate the Terms upon Client’s nonpayment of the fees due hereunder within 10 days of being due;
(b) If Client:
(i) ceases to carry on its business;
(ii) becomes or is declared insolvent, bankrupt, or unable to pay its debts as they become due;
(iii) becomes the subject of any proceedings relating to its liquidation or insolvency or for the appointment of a receiver, trustee, custodian or similar officer for it, which proceedings, if involuntary, are not stayed with seven (7) business days or are not dismissed within sixty (60) days after filing;
(iv) makes an assignment for the benefit of creditors; or
(v) enters into an agreement for the composition, extension or readjustment of substantially all of its obligations;
(c) If Luna reasonably determines that Client is in violation of any applicable law; or
(d) If Luna has suspended performance of the Terms, then at any point after a period of suspension of 15 days.
8.3. Notwithstanding any other provision of the Terms, if any federal, state, or local government, quasi-governmental, self-regulatory or independent agency, entity, or organization with authority to bring any Legal Action or seek other sanctions on behalf of or through delegation by a government, passes, issues, or promulgates any law, rule, regulation, standard, interpretation, order, decision, enforcement action, or judgment (collectively or individually), which, in the good faith judgment of a Party (or as applicable, a Luna Affiliate), materially affects any Party’s (or as applicable, a Luna Affiliate’s) ability to perform its obligations under the Terms or which subjects any Party or a Luna Affiliate to a risk of enforcement, prosecution or civil monetary penalty, or jeopardizes the continuance of the Terms or affects a Party’s (or a Luna Affiliate’s) ability to satisfy its obligations under the Terms, then the Parties may elect to: (i) terminate the Terms, which termination shall be effective immediately upon a Party’s delivery to the other parties of written notice of intent to terminate; or (ii) commence good faith negotiations regarding a mutually acceptable amendment to the Terms, including, but not limited to, a suspension of obligations with respect to the affected jurisdiction or affected Products and Services; provided that a Party’s election to commence such negotiations shall not be deemed a waiver of its rights to amend or terminate the Terms as set forth herein.
9. Intellectual Property; Licenses.
9.1. Except for any rights expressly granted to Client under the Terms, Luna or licensors own all Intellectual Property Rights in and derivative works of the Products and Services and Luna Property. Luna hereby grants Client, until the expiration of the Initial Term along with any and all Renewal Terms, a limited, revocable, non-exclusive, non-sublicensable (except as expressly set forth below) and non-transferable right to use the Luna Property in the designated territory only, in the form and manner provided or made available by Luna, in each case only to the extent incorporated in, combined with or otherwise necessary for Client’s use of the Products and Services for the purposes such Products and Services are provided. All other rights in and to Luna Property are expressly reserved by Luna and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to Luna Property. Notwithstanding the preceding sentences, this Section 9.1 shall not apply to the extent that such a license is not necessary for Luna to provide the Products and Services hereunder.
9.2. Client shall not, except as permitted by the Terms:
(a) Alter, adapt, reproduce, modify, translate, create derivative works based on, reverse engineer, disassemble, decompile, modify any source code, operate in an illegal manner, or attempt to discover all or any portion of the Products and Services or Luna Property; or
(b) Sell, lease, transfer, assign, license, distribute, disclose or make any Products and Services or Luna Property available to any third party.
9.3. Client retains all rights in and related to the Client Content. Client is responsible for the Client Content and, if applicable, entering it into any software-Products and Services. Client hereby grants to Luna a worldwide, perpetual, non-exclusive, non-assignable, royalty-free, fully paid-up license, to process and use Client Content to provide and support the Products and Services and for the enjoyment of the benefits granted hereunder and as further set out in these General Terms, any Additional Terms and Conditions, and any Order Form.
9.4. For applicable Products and Services only, Client will ensure that each Integrated Product and Client’s own business operations comply with the following:
(a) Unless agreed between the Parties, the Designated Services may not be accessed on a standalone basis but only through Integrated Products via the SDK and/or API of the web interface, as applicable;
(b) The SDK, web interface and Designated Services pertaining thereto shall be used only to support Client’s commercial offering to Customers and not as the main service provided by Client;
(c) Client shall not transfer any data collected in connection with the Integrated Products to third parties (other than users of the Integrated Products to whom such data belongs) other than in accordance with the Terms or as required under applicable law;
(d) Client shall update the SDK and Designated Services’ versions and install within no more than 60 days following the stable release of any such version or any required patch as shall be provided by Luna, provided that no such update materially adversely effects the functionality, security, or performance of the SDK or Designated Services. Client shall use the SDK, web API and pertaining Designated Services in accordance with the Documentation, and
(e) Designated Services shall be made accessible, as technologically reasonably possible, to Customers only in accordance with applicable Law.
9.5. Luna may use Client-provided trademarks to provide and support the Products and Services and to display Client’s trademark and logo on Luna’s corporate website for the sole purpose of identifying Client as a client of Luna. All goodwill arising from the use of Client’s trademarks will vest in and inure to the benefit of Client.
9.6. Client may, from time to time and with the prior written consent of Luna, use and reproduce “Luna” and the applicable product trademarks, trade names and logos (collectively, the “Luna Marks”) solely in Client’s distribution, marketing, and advertising of the Products and Services in accordance with the Terms. Client shall place in a prominent place in the Products and Services, reasonably apparent to Customer, the ledger: “Powered by Luna.” All use of the Luna Marks except as set forth in the preceding sentence is subject to the prior review and written approval of Luna but shall not impose any liability on Luna. Client will not remove any trademarks or other proprietary notices incorporated in, marked on, or fixed to the Products and Services. All goodwill arising from the use of the Company Marks will vest in and inure to the benefit of Luna.
9.7. Luna will ensure to have the global rights for all human model imagery that is or may be used in any of the Products and Services. Client may use such images on Client’s website, social media, and in Client marketing; however, Client shall notify Luna in writing when Client uses any of the Luna-provided imagery prior to any such use. Notification shall be provided by Client to Luna pursuant to the requirements set forth in Section 16.14 herein.
10. Limitation of Liability.
10.1. IN NO EVENT WILL LUNA OR LUNA’S AGENTS OR PERSONNEL BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA, DIMINUTION OF VALUE, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE, AND REGARDLESS OF WHETHER LUNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. IN NO EVENT WILL THE TOTAL, AGGREGATE LIABILITY OF LUNA AND LUNA’S AGENTS OR PERSONNEL ARISING OUT OF OR RELATED TO THE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF (A) THE AGGREGATE AMOUNTS PAID PURSUANT TO THE APPLICABLE ORDER FORM, OR (B) THE TOTAL, AGGREGATE AMOUNTS PAID BY CLIENT TO LUNA IN THE SIX (6) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS SHALL NOT INCREASE THE FOREGOING LIMIT.
11. Data Security and Privacy.
11.1. Each Party shall comply with all applicable data privacy laws and regulations governing the protection and collection of personal data in relation to their respective performance under these Terms.
11.2. For applicable Clients only, the Parties agree to comply with appliable privacy and security regulations and applicable law requirements relating to the privacy and security of health information, such as the Regulation (EU) 2016/679 (General Data Protection Regulation, “GDPR” collectively, the “Privacy Laws”). The Parties will work together in good faith to determine the applicability of Privacy Laws, to comply with applicable Privacy Laws, and to amend the Terms as necessary for any “covered entity” and their respective “business associates” to comply with applicable Privacy Laws, as modified and/or supplemented from time to time. Any ambiguity herein will be resolved in favor of a meaning that permits both “covered entities” and their respective “business associates” to comply with applicable Privacy Laws. The Parties recognize that, at various times during the course of their operations, certain Parties may be co-providers and covered entities.
11.3. Client will cooperate with Luna in establishing a password or other procedures for verifying that only designated employees of Client have access to any administrative functions of the Products and Services.
11.4. Client will be responsible for maintaining the security of Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account with or without Client’s knowledge or consent.
12.1 Subject to Section 12.2 below, Client shall indemnify and defend Luna and its and their Agents, Personnel, successors and permitted assigns from and against Losses and Legal Actions arising out of or relating to:
(a) Any action or inaction by Client or its Agents;
(b) Any action or inaction by Luna in reliance on any instruction, approval, election, decision, action or nonperformance by Client or its Agents relating to the Products and Services;
(c) The negligence, fraud, gross negligence, willful misconduct, or violation of any applicable Law by Client or its Agents;
(d) Client’s collection, processing and use of Customer information (including, but not limited to, to the extent applicable, PII, Personal Data, Personal Information or PHI);
(e) Luna’s authorized use of Client Content in accordance with the Terms; and
(f) Any infringement by Client on the Intellectual Property Rights of any third party, other than any infringement resulting directly from Luna’s provision to Client of a license described in Section 9.1.
12.2 Client’s duties under Section 12.1 shall not apply if the Losses or Legal Action arise out of Luna’s gross negligence or willful misconduct.
12.3 The Parties shall abide by the following procedures in case of a Legal Action subject to indemnification:
(a) Luna shall give Client prompt notice of any demand for indemnification under this Section 12, as well as copies of any papers served on Luna relating to the corresponding Legal Action. Luna’s failure to provide or delay in providing such notice or copies will not release Client from its obligations under this Section;
(b) Client has the exclusive right to conduct the defense of any Legal Action for which it indemnifies Luna, as well as any negotiations for its settlement, except that:
(i) Client may not bind Luna to any agreement, or otherwise prejudice or impair Luna’s rights without Luna’s prior written consent;
(ii) Luna may participate, at its own expense, in the defense of or settlement negotiations for any corresponding Legal Action with counsel of Luna’s own selection; and
(iii) Luna may, at its option and Client’s expense, and on notice to Client, conduct the defense of and any settlement negotiations for any corresponding Legal Action in place of Client.
(c) If Luna conducts the defense of a Legal Action under Section 12.3(b)(iii), then, at Luna’s request and Client’s expense, and in addition to Client’s other obligations under the Terms, Client shall assist Luna with the defense of the corresponding Legal Action.
(d) Luna’s failure to perform any obligations under this Section 12 shall not relieve Client’s obligations under this Section 12.
13. Support Services.
13.1. For purposes of Client technical support services, Clients will be classified as either an Eastern Hemisphere Client or a Western Hemisphere Client with such classification appearing on Client’s applicable Order Form(s). Luna will provide commercially reasonable technical support and integration assistance as follows:
|Western Hemisphere Clients||Eastern Hemisphere Clients|
|9:00 AM to 5:00 PM MT Monday through Friday.||9:00 AM to 5:00 PM CET Sunday through Thursday.|
Such support will include: (i) troubleshooting errors, maintaining functions and operation of the Products and Services, (ii) periodic support reviews; (iii) support incident reports; and cooperation with third parties as are reasonably necessary to resolve technical problems.
13.2. Luna will exercise commercially reasonable efforts to maintain operational “uptime” of the Products and Services at or above 99.7% as measured monthly (“Availability”) excluding: (i) weekly maintenance windows scheduled to minimize the impact of downtime based on the territory with times by geography detailed in the Luna Documentation, provided that Luna shall give Client at least 48-hour advance notice if material downtime is expected and Luna may schedule additional maintenance windows outside of the weekly maintenance windows if Luna gives Client 48-hour advance notice, unless otherwise agreed by the Parties (“Scheduled Maintenance”) and (ii) any downtime caused by Client or caused by other forces beyond reasonable control of Luna (such as network outages or downtime of Amazon Web Services or systems).
13.3. If, in a given month, Luna fails to meet the Availability obligations set forth above, Luna will issue a corresponding credit to Client as noted below (“Service Level Credit”). Such Service Level Credit shall be Client’s sole and exclusive remedy for anything related to Availability under these Terms. The total amount of Service Level Credits that Luna will be obligated to pay to Client with respect to Availability failures occurring each month will be credited to Client in the subsequent invoice.
|Availability||Service Level Credits|
|Less than 99.7% but equal to or greater than 97.0%||5% of monthly fees as credit|
|Less than 97.0% but equal to or greater than 95.0%||7% of monthly fees as credit|
|Less than 95.0%||10% of monthly fees as credit|
For purposes of Availability, this Section 13.3 shall not apply to the following products: (i) Digital Glasses, (ii) RPI (iii) Model Composites, (iv) Sourcing, Distribution and Fulfillment, or (v) Online Refraction Exam Platform.
14. Impact Report.
14.1 If applicable in an Order Form, Client shall provide to Luna a report in accordance with the Order Form (the “Impact Report”), which reports may be used by Luna only as follows:
(a) Luna may use the Impact Report and any information contained therein for internal purposes only; and
(b) Luna may provide the information in the Impact Report in a non-identifiable manner to its prospective clients, but only and solely as part of the aggregate data collected by Luna on response rate and other performance measures of the Products and Services from at least two other clients engaged in the retail optical field.
14.2 The Parties acknowledge and agree that Luna’s use of the Impact Report in accordance with this Section will not be deemed a breach of Luna’s confidentiality obligations under these General Terms. The Parties further agree that no personally identifiable information (either PII, PHI or otherwise) of any Customer shall be shared in any Impact Report.
15.1. The Terms may only be amended, modified, or supplemented by a written instrument that refers specifically to the Terms and is signed by both Parties.
15.2. It shall not be considered an amendment under this Section for Luna to make changes to the manner in which it executes its obligations under the Terms, provided, that, except as necessary given a legal or regulatory requirement (as interpreted or modified) such changes shall not have a materially negative impact on the Products and Services and shall not impact the fees and any service levels agreed to by the Parties.
15.3. Each Party shall notify the other Party if a change in Law precludes a Party from performing its obligations under the Terms and the Parties shall cooperate to amend the Terms as necessary to enable compliance with such Law.
16.1. If agreed to in an applicable Order Form, Client shall participate in press announcements, case studies, trade shows, or other forms
16.2. In the event that any of the Products and Services provided under any of the Terms becomes a regulated product by the FDA, Client shall send all Customer complaints regarding the Products and Services provided under the Terms to an email designated by Luna within fifteen (15) days of receipt.
16.3. Client shall integrate/use the Products and Services provided under the Terms in accordance with applicable branding guidelines, which may include future branding guidelines for affiliated entities. If applicable, any such branding guidelines shall be made available to Client in the Order Form. The Parties acknowledge that branding guidelines may need to be updated or expanded to address changes in intellectual property or regulatory compliance requirements. Client agrees to comply with the branding guidelines provided Luna provides reasonable notice of such changes.
16.4. At the expiration of the Initial Term along with any and all Renewal Terms, neither Party will have any further rights or obligations hereunder, provided that Luna’s rights and Client’s obligations set forth in this Section as well as Section 4, Section 5, Section 6, Section 9, Section 10, Section 11 and Section 12 shall survive termination of the Terms, as well as any of Luna’s rights and Client’s obligations arising from a termination as a result of Client’s breach of the Terms.
16.5. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Terms shall operate or be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. No waiver by any Party of any of the provisions hereof or of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless explicitly set forth in writing and signed by the Party so waiving, nor shall such waiver operate or be construed to be a waiver by such Party of any subsequent default, misrepresentation or breach of warranty or covenant hereunder.
16.6. The Terms may be executed in one or more counterparts (including by means of facsimile or electronic transmission), each of which shall be deemed an original but all of which together will constitute one and the same instrument.
16.7. If any provision of the Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the 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, the Parties hereto shall negotiate in good faith to modify the Terms so as to affect the original intent of the Parties 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.
16.8. The Terms are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and, except for indemnitees’ rights to indemnification pursuant to Section 12, nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of the Terms.
16.9. The Terms constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous discussions, correspondence, negotiations, arrangements, understandings and agreements, both written and oral, with respect to such subject matter. Nothing herein shall affect or terminate ongoing rights from non-disclosure agreements entered into by the Parties prior to the Effective Date; provided, however, any new Confidential Information exchanged between the Parties shall be governed by the confidentiality obligations set forth herein. Client acknowledges and agrees that there were no representations or promises made by Luna on which Client has relied in entering into this Agreement that are not expressly stated herein.
16.10. The Terms shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. No Party may assign either the Terms or any of its rights, interests, or obligations thereunder without the prior written approval of the other Party; provided, however, that Luna may assign its rights or delegate its obligations, in whole or in part, without such consent to (a) an Affiliate, or (b) an entity that acquires all or substantially all of Luna’s business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void.
16.11. If any date specified in the Terms as the only day, or the last day, for taking action falls on a day that is not a business day, then that action may be taken on the next business day. Unless stated otherwise, all references to a date or time of day in the Terms are references to that date or time of day in Salt Lake City, Utah.
16.12. Any Legal Action between the Parties arising out of or relating to the Terms and or the provision of the Products and Services are to be construed in accordance with and governed by the Laws of the State of Utah, without giving effect to the State of Utah’s conflict of laws rules to the extent those rules would require applying another jurisdiction’s Laws.
16.13. The Parties agree that any Legal Action relating to or arising under or in connection with the Terms shall only be instituted in the federal courts of the United States of America or the courts of the State of Utah, if the federal courts do not have jurisdiction, in each case located in Salt Lake County in the State of Utah, such courts being a proper forum in which to adjudicate such claim or suit, and each party hereby waives any objection to each such venue and waives any claim that such claim or suit has been brought in an inconvenient forum. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THE TERMS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE TERMS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
16.14. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by e-mail when receipt is electronically confirmed to the applicable addressees: (i) to Luna Solutions, LLC, at email@example.com, and (ii) to Client at the e-mail address set forth in the most recent Order Form. A party may change its notice address by providing a notice to the other party given in accordance with this Section.
16.15. During the term of the Terms and for a period of twelve (12) months thereafter, Client shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under the Terms who is then in the employment of Luna. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section, and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section. If Client breaches this Section, Client shall, on demand, pay to Luna a sum equal to one year’s basic salary or the annual fee that was payable by Luna to that employee, worker or independent contractor plus the recruitment costs incurred by Luna in replacing such person.
16.16. The relationship between the Parties is that of independent contractors. Nothing contained in the Terms shall be construed as creating any agency, partnership, joint venture, franchise, or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever except as expressly set forth herein.
16.17. In the event that any of the Products and Services become regulated or is required to increase its level of compliance by any U.S. or foreign regulatory entity, Client shall send Luna all Client Customer or end user complaints regarding the Products and Services, to an email designated by Luna, within fifteen (15) days of receipt. For purposes of this Section 16.17, regulatory entities include, without limitation: any government, quasi-governmental, self-regulatory, or independent agency, entity, or organization with authority to bring any Legal Action or seek other sanctions against Client on behalf of or through delegation by a foreign government.
16.18. Client will cooperate with Luna as reasonably required in any and all product or service removals, corrections, replacements, field actions, safety notices, market withdrawals, or recalls (each a “Product Removal”) that we conduct whether initiated by us or at the direction of any governmental or regulatory authority, and such Product Removal will not invalidate these Terms.
17. Additional Terms and Conditions – Sourcing, Distribution, and Fulfillment Services
17.1. Application of this Section.
The provisions of these Additional Terms and Conditions (as provided in Exhibit A below) shall only apply if Luna is providing Client with Products and Services related to sourcing, distribution and fulfillment, as described in such Additional Terms and Conditions and any applicable Order Forms. All provisions of such Additional Terms and Conditions are in addition to these General Terms.
Sourcing, Distribution, and Fulfillment Services
These Additional Terms and Conditions (“Additional Terms and Conditions”) apply only to the sourcing, distribution, and fulfillment services provided by Luna to Client. Luna’s offer to provide sourcing, distribution, and fulfillment services to Client, and Luna’s acknowledgement of any applicable Order Form(s), is expressly limited to and conditioned on Client’s acceptance of these Additional Terms and Conditions along with the General Terms. Luna objects to and rejects all other Client terms, in any form, that are different from or additional to these Additional Terms and Conditions or the General Terms.
1. Definitions. The following terms shall, when used in these Additional Terms and Conditions, have the following meanings. Capitalized terms not defined herein shall have the meanings ascribed to them in the General Terms.
1.1. “Consumables” means boxes, packing materials, and other consumable items used by Luna to provide the Products and or Services to Client.
1.2. “Contact Lens Trials” means sample Products provided to Client or Customers.
1.3. “Order Data” means the specific data regarding Products and Service as contained in the applicable Order Form, including, but not limited to, amounts, specifics, durations, etc.
1.4. “Per Order Fee” means a fee per shipped Order according to the prices set forth in the Order Form. The Per-Order Fee includes Luna’s labor, fulfillment, freight and Consumables costs. The Per-Order Fee excludes and is additional to the costs of the Products (COGS) that Luna ships.
1.5. “Price List” shall have the meaning ascribed to it in Section 2.2.
1.6. “Products” means contact lenses, eyewear, or any other products described in the applicable Order Form.
1.7. “Services” means, collectively, the services provided by Luna to Client as outlined and described in Section 2 herein.
1.8. “Shipping Company” shall have the meaning ascribed to it in Section 2.3.
2. Services Provided.
2.1. Luna shall provide the Services to Client as described in these Additional Terms and Conditions, in accordance with the Service Levels, as may be updated from time to time by written agreement of the Parties.
2.2. Product Sourcing
(a) Luna shall provide and Client shall use Luna as its exclusive source of the Products in Canada and in the United States and its territories and possessions for all sales through Client’s website(s) or other Client-branded or Client-operated properties.
(b) Luna shall supply a list of all Products (including all types of contact lenses) available for sale and their corresponding prices (the “Price List”, which shall be provided to Client upon request). Luna reserves the right to modify the Price List based on the prices Luna pays for Products. However, Client shall determine, in its sole discretion, the prices or fees charged to any Customer for Products.
(c) Client may notify Luna that Client desires to include additional contact lenses for sale, and Luna shall use commercially reasonable efforts to obtain those contact lenses for Client. Any contact lenses so sourced by Luna will constitute Products for purposes of this Section upon the sourcing thereof.
(d) Luna shall source Products for Client in accordance with the General Terms and these Additional Terms and Conditions regardless of whether Client has a direct relationship with the applicable manufacturer, provided Client is not listed on any manufacturer’s “do not sell” list.
2.3. Order Fulfilment
(a) Client shall provide Luna with Order Data via the “Partner API” or “Partner Portal” and as outlined in the Documentation. Client may utilize the Partner Portal or any other system that is compatible with the Partner API to place orders. Client may also place orders via Luna’s call center. Client acknowledges that certain Products may only be ordered via Luna’s call center. Client is and will be responsible for all costs associated with acquiring, maintaining and creating hardware, software, network communications equipment and/or other information technology necessary to utilize the Partner API and transmit Order Data to Luna.
(b) Luna shall fulfill and ship all completed orders according to the Order Data provided by Client to Luna, from its distribution centers directly to the Customer’s preferred address within the agreed upon service levels.
(c) Luna shall select and use a third-party shipper (“Shipping Company”) to fulfill orders utilizing the delivery option specified by Client to Luna for each Customer. Estimated costs of third-party shippers are provided in the Order Form, however, such prices are subject to change at the option of such shippers, and any increase in costs will be reflected in the invoices provided to Client. Notwithstanding the foregoing, Client may use its own third-party shipping rate cards provided such shipping rate cards are for a Luna Shipping Company.
(d) If any order that Luna receives from Client does not contain all of the Order Data necessary for Luna to perform fulfillment services with respect to that Order, Luna shall notify Client and shall not fulfill that order. If applicable, the order request will be denied via a rejection response from the Partner API and/or Partner Portal.
(e) Luna may ship Products in Client-branded, industry relevant, or white-labeled boxes. Client may elect for Luna to ship Products using Client-branded boxes, subject to an additional cost (as set forth in the Order Form). If Client elects for Luna to ship Client-branded boxes, Client and Luna will work in good faith to collaborate on the design for the Client-branded boxes. Luna shall provide samples of Client-branded boxes for review and approval, which approval shall not to be unreasonably withheld or delayed, prior to shipment. Luna shall not modify or alter its use of Client trademarks without first notifying Client and receiving its approval (which approval may not be unreasonably withheld or delayed). Design and specifications for any boxes used for Customer order fulfillment must be approved in advance by Client. Client or its designee may exercise quality control over Luna’s use of the Client trademarks to the extent Client deems necessary to maintain the validity and enforceability of, and protect the goodwill connected with the use of and symbolized by, the Client trademarks. Luna shall cooperate with Client and its designees in Client’s exercise of quality control pursuant to this Section. Luna shall promptly provide, at Client’s reasonable request and solely for the purpose of exercising such quality control, Client with samples of Luna’s usage of the Client trademarks.
Client may elect for Luna to customize, using Client’s logo, the shipping label and top one-third of the one-page packing slip. This is commonly used for promotions or branding. If Client elects for Luna to customize the shipping label and/or packing slip, Client shall provide to Luna electronic files containing copies of Client trademarks for Luna to include on shipping labels and/or packing slips. Luna shall provide samples of shipping labels and/or packing slips to Client for review and approval, which approval shall not be unreasonably withheld or delayed prior to shipment.
(f) Client is responsible for the provision, maintenance and operation of all electronic fulfillment or ordering systems which are necessary for Luna to provide the Services described in this Section 2.
(g) If Client is usng Luna’s Verification Service (as indicated in the applicable Order Form), and in addition to product specific Verification Service Terms, Client shall indicate on each Order Form whether or not prescription verification has been conducted prior to submission of the Order Form to Luna. When verification has not been completed prior to the order being submitted, Client shall indicate as such as part of the order submission. Luna shall verify orders that have not been verified prior to submission at the rates as outlined in the Order Form.
2.4 Limited Customer Service and Returns
(a) Subject to the following paragraphs of this Section 2.4, Client shall be responsible for all communications with Client Customers with respect to the Orders, including responding to Client Customer inquiries and complaints, processing Orders and issuing refunds. Client shall provide Client Customers with notice of the appropriate procedure for returning Orders.
(b) If Luna is contacted by a Client Customer with respect to an Order, Luna shall immediately notify Client via the Partner Portal. Luna shall process any returned Orders received by Luna in accordance with Client’s reasonable instructions and at Client’s expense. If requested by Client, Luna shall inspect returned Orders received by Luna to identify whether it is opened, damaged or re-sellable. In the event the product is re-sellable, Luna shall return it to inventory for resale and provide credit back to Client for the cost paid by Client for any such re-sellable Products.
(c) If a Client Customer reports upon receipt that a Product is damaged, Luna shall reship such order; provided it was shipped on Luna’s Shipping Company accounts. For all orders shipped via Luna’s Shipping Company accounts, Luna shall be responsible for all costs of orders not received or received as damaged at a Client Customer’s designated address. Client shall be responsible for all such costs for all orders shipped via Client’s Shipping Company accounts.
(d) Upon Client’s request, Luna shall provide monthly or quarterly reports on Products, sales information, and fulfillment.
3.1. Luna may offset any amounts for returned and re-sellable Products and shall promptly provide reporting to Client with a description of the reason for any offset amounts.
4. Taxes. Client agrees to the following provisions regarding taxation:
4.1. The applicable state for taxation purposes shall be the “ship to” state.
4.2. If Client is authorized by the tax authority to issue a resale certificate for a state, no tax will be charged for Products shipped to that state; otherwise, taxes will be charged in accordance with the applicable state’s Laws.
4.3. For the states of California and Tennessee, Client shall make reasonable efforts to purchase California or Tennessee Products on a tax-exempt basis and self-assess the applicable sales or use tax based on applicable Law. Client shall provide Luna a resale certificate and statement concerning its purchase of Product in the states of California and Tennessee reflecting exemption from such use or sales taxes immediately following its receipt thereof. If Luna is required to pay any sales or use taxes on Products on Client’s behalf, Client shall within seven days reimburse Luna for any such taxes paid and any fees, penalties, or additional costs associated therewith.
5. Data Security and Privacy.
5.1. Luna shall implement and maintain commercially reasonable information and systems security safeguards in connection with Luna’s performance of the Services.
5.2. To the extent applicable, Protected Health Information (PHI) shall be obtained and used by Client and Luna according to the terms and conditions set forth in the Business Associate Agreement, and in compliance with the Health Insurance Portability and Accountability Act of 1986 (“HIPAA”).
6. Intellectual Property; Ownership.
6.1. Client Content includes all sales and Order Data.
6.2. The grant of Luna’s license to Client as described in Section 9 of the General Terms shall include a license to use the Partner API solely as set forth in Section 2 of these Additional Terms and Conditions.
6.3. The grant of Client’s license to Luna as described in Section 9 of the General Terms shall include:
(a) a license during the Service Term to receive, download, store, organize, log, catalog, manage, maintain, copy, process and transmit Order Data, solely as necessary to perform the Services and internal quality assurance; and
(b) a license for Luna to use Client Content in labeling and branding shipments as set forth in these Additional Terms and Conditions.
7. Representations and Warranties.
7.1. Client represents and warrants that it owns all rights necessary to disclose the Order Data to Luna, including, if required by applicable law, consent with respect to such disclosure from each Customer that places an order.
7.2. Client further represents and warrants that it owns all Intellectual Property Rights (including licenses) necessary for Luna to provide the Products and Services.
8. Breach and Remedies.
8.1. Failure by Luna to meet the service levels for more than two months out of any six-month period shall constitute a material breach of the General Terms.
8.2. In the event of any breach described in this Section, Luna shall ensure that the invoices delivered to Client shall include credits proportional to the deficiency in minimum order fill rate and/or order accuracy giving rise to such failure to meet the service levels.
9.1. In the case of termination under Section 8.2 of the General Terms, Client shall reimburse Luna for all Consumables ordered and received by Luna in furtherance of these Additional Terms and Conditions.
9.2. Further, and notwithstanding the provisions of Section 8.2 of the General Terms, Luna may terminate the Terms prior to the end of the Initial Term or, as applicable, any Renewal Term, for convenience, provided that Luna gives written notice to Client of its intent to terminate 30 days prior to termination.
10. Service Levels.
(a) General Call Center:
Client may contact Luna at its General Call Center at 800-801-0101 and at firstname.lastname@example.org if Client has questions regarding: (1) order placement issues, (2) changing orders, or (3) status of orders already placed. The General Call Center hours of operation are 7:00 AM – 10:00 PM (MT), 7 days-a-week, excluding national holidays.
(b) IT Call Center
Luna shall maintain an IT Call Center for Client to seek assistance regarding system outages or any other technical emergencies. Such support is available to Client 24 hours-a-day, 7 days a week, 365 days-a-year. The number for Luna’s Call Center is (801) 924-9862.
(c) Client Success Manager
Clients shall also have access to a Luna client success manager who shall be available to assisting Client with: (1) onboarding support, (2) reporting support (for reports discussed in Section 2.4 (d) herein), (3) requests for new features or changes to the current offering, and (4) general non-specific issues. See the General Terms and Conditions for support hours and days.
The Luna contact for any notices pursuant to these Additional Terms and Conditions, including notice for any scheduled or unscheduled downtime, security breaches, or any other failure of service levels and/or functionality of the System is the General Call Center at (801) 924-9862