This Master Services Agreement (the "MSA") between Lumen21, Inc. ("Lumen21") or one of Lumen21’s Affiliates (as defined below) and the Customer as identified on any Order Form ("Customer") is made effective as of the date indicated below the Lumen21 signature on this MSA ("Effective Date"). "Customer" may include Customer’s Affiliates approved by Lumen21 to receive Services (as defined in Section 2) under this MSA. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING "ACCEPT" AND/OR ACCESSING OR USING ANY SERVICES OF Lumen21. BY (AS APPLICABLE) SIGNING A SERVICE ORDER, CLICKING "ACCEPT" AND/OR ACCESSING OR USING SUCH SERVICES, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS AGREEMENT. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, Lumen21’s OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO THE SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S ASSENT HERETO. As used herein, the term "Affiliates" with respect to a party means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such party.
1. ARTICLE 1 - INTRODUCTION:
1.1. Overview of MSA. This MSA sets forth the terms and conditions of Lumen21’s delivery and Customer’s receipt of any or all the Services.
1.2. Order Forms. The specific Services to be provided under this MSA are identified and described in detail in one or more order forms or subscription quotes that (a) reference this MSA, (b) are submitted by Customer for Services offered by Lumen21, and (c) are accepted by Lumen21 (each an "Order Form" and collectively, the "Order Forms"). An Order Form is considered accepted by Lumen21 when signed by Lumen21, whether manually or electronically through an online document handling service. The MSA is incorporated into each Order Form, and each Order Form constitutes a separate order for Services.
1.3. Definitions. Capitalized terms used and not elsewhere defined in this MSA or the applicable Order Form, have the meanings given them in Schedule 1.1 to this MSA.
2. ARTICLE 2 - DELIVERY OF SERVICES AND TERM
2.1.1 General. By submitting an Order Form, Customer agrees to take and pay for, and, by accepting the Order Form, Lumen21 agrees to provide the Services during the applicable Service Term.
2.1.2. Recurring SAAS Offerings. Lumen21 provides some Services in the form of a security-as-a-service ("SAAS") offering that does not require the use of Lumen21-provided Hardware. If Customer elects to order this SAAS offering, as further described in the applicable Order Form, upon Lumen21’s acceptance of the Order Form, Lumen21 will provide a means for the Customer to directly activate the Service or will deliver to the email address specified by Customer on the Order Form a link to the SAAS offering for purposes of enabling Customer to activate the Service ("Activation Link"). Lumen21 considers the Order Form accepted by Lumen21 for this Service as a firm order and, therefore, the Service Commencement Date for these Services is the date on which the Activation Link is sent to Customer, regardless of whether Customer initiates the Service. If no Activation Link is sent to Customer, the Service Commencement Date is on the first day Lumen21 has established communication with the contracted Customer network environment or device.
2.1.3. Recurring SAAS Offerings requiring Hardware.
220.127.116.11. Lumen21 also provides service offerings that require the use of Lumen21 provided Hardware. If Customer elects to order this type of a Service offering, as further described in the applicable Order Form, upon Lumen21’s acceptance of the Order Form, Lumen21 will deliver the applicable Hardware to Customer at the address specified by Customer on the Order Form. Lumen21 considers the Order Form accepted by Lumen21 for this Service as a firm order and, therefore, the Service Commencement Date for these Services is the earlier of: (A) Customer’s activation of the applicable software following receipt of such Hardware; or (B) ten (10) days following shipment of the initial Hardware to Customer, regardless of whether Customer initiates the Service, unless Service Commencement Date is defined otherwise on the Order Form.
18.104.22.168. Subject to the terms and conditions of this MSA, Lumen21 hereby loans to Customer the applicable Hardware required for enabling the Services. The Hardware is loaned, not sold, to Customer, for use solely during the applicable Service Term, and remains the property of Lumen21 always. Customer will maintain and protect the Hardware in good working condition except for any reasonable wear and tear. Customer will not modify, disassemble, decompile, reverse engineer, rent, lease, loan, transfer, or copy the Hardware (including any software or firmware that is part of, incorporated into or running on the Hardware). Customer assumes all risk of loss, damage, theft, or destruction of the Hardware while it is in the Customer’s possession or control, or that of its agents, including any carrier (except any carrier transporting the Hardware from the possession of Lumen21 to Customer), and Customer will reimburse Lumen21 for any costs of necessary repair or replacement (including shipping costs). Customer will keep the Hardware free of all security interests, liens, and other encumbrances.
2.2 Term of MSA and Services.
2.2.1 Term of MSA. The term of this MSA commences on the Effective Date and unless terminated earlier in accordance with this MSA, continues for one (1) year following the Effective Date or the expiration and non-renewal or termination of the last Service Term, whichever is longer.
2.2.2 Service Term. The term for each Service ordered under an Order Form commences on the Service Commencement Date and unless terminated earlier, in accordance with this MSA or the applicable Order Form, continues for the Initial Term.
EACH RECURRING SERVICE RENEWS AUTOMATICALLY FOR ADDITIONAL TERMS EQUAL TO THE LENGTH OF THE INITIAL TERM (EACH A "RENEWAL TERM") UNLESS CUSTOMER NOTIFIES LUMEN21 IN WRITING NO LESS THAN SIXTY (60) DAYS PRIOR TO THE END OF THE INITIAL TERM OR A RENEWAL TERM, AS APPLICABLE, THAT IT HAS ELECTED TO TERMINATE SUCH SERVICE, IN WHICH CASE SUCH SERVICE SHALL TERMINATE AT THE END OF THE THEN-CURRENT SERVICE TERM.
3. ARTICLE 3 - PAYMENT TERMS FOR FEES AND EXPENSES
3.1. Fees and Expenses.
3.1.1. Recurring Services. Customer will pay all fees and expenses due for Recurring Services in accordance with the prices and terms set forth in the Order Form. Recurring Services are billed on a calendar month basis, and unless otherwise set forth in the applicable Order Form, Customer will commence billing for Recurring Services upon the applicable Service Commencement Date. In the case of flat monthly fee billing, if the Service Commencement Date occurs on any day of the month other than the first calendar day of the month, Customer will be billed for the pro rata amount due for that month’s monthly charges for Recurring Services. Customer is obligated to pay for each Recurring Service throughout the duration of the Initial Term and any Renewal Term subject to Section 10.3.
3.1.2. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Unless otherwise specified in the Order Form, the prices set forth in the Order Form will remain in effect during the Initial Term for such Order Form and any Renewal Term, except that Lumen21 reserves the right to change the terms or increase the prices it charges Customer for the Recurring Service at any time after the Initial Term effective thirty (30) days after providing written notice to Customer.
3.1.3. Ordering with Local Affiliates. If a Customer Affiliate with a location outside of the United States is purchasing Services under this MSA ("Customer International Affiliate"), such Customer International Affiliate shall enter a Service Order and/or Statement of Work directly with the Lumen21 Affiliate local entity ("Lumen21 Local Entity") for such Services. The Lumen21 Local Entity shall invoice the Customer International Affiliate, per the billing address provided by the Customer in the applicable local currency and the Customer International Affiliate shall make payments directly to the Lumen21 Local Entity. All references herein to Lumen21 and Customer shall be deemed reference to Lumen21 Local Entity and Customer International Affiliate, respectively. The terms and conditions of this MSA shall be incorporated by reference into the applicable Service Order and/or Statement of Work by and between the Customer International Affiliate and the Lumen21 Local Entity.
3.1.4. Unless stated otherwise on an Order Form, Customer shall be billed for the entire license entitlement purchased (as outlined in the applicable Order Form or Statement of Work) upon the Service Commencement Date.
3.1.5. Customer shall be billed for the entire number of devices in the tier being purchased (as outlined in the applicable Order Form) upon the Service Commencement Date for the initial device. If there are any devices remaining to be integrated thereafter, Customer shall be responsible for initiating the integration of such devices via the Lumen21 network portal or through the Lumen21 customer service desk.
3.1.6. In the event Customer utilizes Services in excess of the tier entitlement identified on the Order Form and does not bring usage within the entitlement identified on the Order Form within thirty (30) calendar days and remain within its entitlement for the following sixty (60) calendar days, Customer will be billed an overage charge for such excess usage during the month of service at the end of the month. If the Order Form does not specify the rates for excess usage, the per-unit rate for the contracted service will be increased by 10% and then applied to the excess usage.
3.2. Payment Terms. Upon signing of an Order Form for Recurring Services, Customer will be billed an amount equal to all non-recurring charges indicated in the Order Form. Customer’s execution and return of applicable Order Form to Lumen21, whether by electronic method or otherwise, without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may provide to Lumen21 or use in connection with the procurement of Services from Lumen21 will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Lumen21 to object to such terms, provisions or conditions. Monthly charges for Recurring Services will be billed in advance of the Recurring Services. All other charges for Services received and expenses incurred during a month (e.g., usage-based billing and charges for usage in excess of the tier entitlement) will be billed at the end of the month in which the Services were provided. Payment for all fees and expenses is due upon receipt of each Lumen21 invoice. All payments will be made in the United States in U.S. dollars in the amounts as indicated on the invoice.
3.3. Late Payments. Any payment not received by the thirtieth (30th) business day following the invoice date will accrue interest at a rate of one and one-half percent (1.5%) per month from the invoice date, or the highest rate allowed by applicable law, whichever is lower. Lumen21 retains the right to impose the interest charges set forth above on any invoice which is delinquent regardless of whether or not past due invoices have been sent without such interest charges included. If Customer is delinquent in its payments, Lumen21 has the right, upon written notice to Customer, to modify the payment terms to require full payment before the delivery of Services or require other assurances to secure Customer’s payment obligations under this MSA. If Customer is more than 30 days delinquent in payment for services, Lumen21 has the additional right to suspend or terminate all Services.
3.4. Payment Disputes. If Customer in good faith disputes a portion of any invoice, Customer will complete a Billing Dispute Form within 30 days of receiving an invoice containing a disputed charge, a form of which is included as Schedule 1.3. Such form will be submitted to Lumen21 via email to Accounting@Cautelalabs.com. Lumen21 will promptly work to reconcile any submitted disputes. Customer is obligated to pay all non-disputed items when due, regardless of whether an invoice contains disputed charges. If Customer does not dispute an invoice within 30 days of receipt of such invoice, Customer forfeits any further right to dispute such invoice.
3.5. Taxes. All fees for Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on Lumen21’s net income.
4. ARTICLE 4 - CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY OWNERSHIP; LICENSE GRANTS
4.1. Confidential Information.
4.1.1. Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, customers, technology, and products, and other information held in confidence by the other party ("Confidential Information"). Confidential Information will include all information in tangible or intangible form that (i) is marked or designated as confidential or (ii) under the circumstances of its disclosure, a reasonable person should consider to be confidential. Confidential Information of Lumen21 includes, but is not limited to Lumen21 Technology, the terms and conditions of this MSA and all Order Forms and Statements of Work, and all other documents incorporated by reference into this MSA, Order Form or a Statement of Work. Confidential Information of Customer includes Customer Technology as well as customer data received in the performance of Lumen21’s Services. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this MSA, nor disclose to any third party (except (i) as required by law subject to compliance with Section 4.1.3 or (ii) to that party’s attorneys, accountants and other advisors as reasonably necessary, provided that such third parties are subject to obligations of confidentiality and non-disclosure no less restrictive than those obligations set forth in this MSA), any of the other party's Confidential Information. Each party also agrees that it will take reasonable precautions to protect the confidentiality of the other party's Confidential Information, which precautions will be at least as stringent as a party takes to protect its own Confidential Information.
4.1.2. Exceptions. Confidential Information does not include information that: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this MSA by the receiving party; or (iv) is independently developed by the receiving party.
4.1.3. Disclosures Required by Law. If the receiving party or any of its employees or agents are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information of the disclosing party, the receiving party shall not disclose the Confidential Information without providing the disclosing party at least twenty-four (24) hours prior written notice of any such request or requirement so that the disclosing party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this MSA. Notwithstanding the foregoing, the receiving party shall exercise reasonable efforts to preserve the confidentiality of the Confidential Information including, by cooperating with the disclosing party, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by the applicable tribunal.
4.2. Intellectual Property.
4.2.1. Ownership. Except for the rights expressly granted in this MSA, this MSA does not transfer from Lumen21 to Customer any Lumen21 Technology, and all right, title and interest in and to Lumen21 Technology remains solely with Lumen21. Except for the rights expressly granted in this MSA, this MSA does not transfer from Customer to Lumen21 any Customer Technology, and all right, title and interest in and to Customer Technology remains solely with Customer. Each of Lumen21 and Customer agree that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party. Customer hereby acknowledges and agrees that, from time to time, whether specifically described in an Order Form, Lumen21 may provide work product to Customer, including, but not limited to writing "scripts" or building "parsers" or reports, which may or may not be specifically designed for Customer’s environment, business or information technology processes. Customer hereby acknowledges and agrees that all such work product remains the property of Lumen21 (and thereby included in the definition of "Lumen21 Technology"), whether provided solely by Lumen21 personnel or with participation by Customer personnel. Lumen21 shall own and be permitted to use any such work product in its business, including, but not limited to providing such work product to other customers of Lumen21.
4.2.2. General Skills and Knowledge. Notwithstanding anything to the contrary in this MSA, Lumen21 will not be prohibited or enjoined at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Lumen21.
4.3. Access Rights.
4.3.1. General. Subject to the terms of this MSA and to the extent required to receive the Recurring Services during the applicable Service Term, Lumen21 hereby grants to Customer a non-transferable, non-exclusive, limited license for Customer's employees (each referred to herein as a "User") to access and use the applicable Recurring Services (and Lumen21 Technology made available therein) solely for Customer's internal business use.
4.3.2. User Identifications and Passwords. Each User may be provided with a specific user identification and password combination solely for the use by such User of the applicable Recurring Service and Lumen21 Technology. Customer and each User will: (i) be responsible for the security and/or use of his or her user identification and password; (ii) not disclose such user identification and password to any third person or entity; and (iii) not permit any other person or entity to use his or her user identification and password. Customer will be responsible for: (i) advising each User of his or her obligations under this MSA and of the restrictions set forth in this MSA; and (ii) each User's use of his or her user identification and password, the Recurring Services and Lumen21 Technology, including, without limitation, failure to comply with the terms of this MSA (including, but not limited to any Order Form) or any of Lumen21’s other policies regarding use of any of the Recurring Services and Lumen21 Technology. Lumen21 reserves the right to deny or revoke access to any of the Recurring Services and Lumen21 Technology if Lumen21 believes Customer and/or its Users are in breach of this MSA (including, but not limited to any Order Form) or are otherwise engaged in unauthorized or unlawful use of any of the Recurring Services and Lumen21 Technology. Customer will be responsible solely for any damages to any of the Recurring Services and Lumen21 Technology caused by Customer and/or its Users.
4.3.3. Restrictions. Customer agrees that Customer and its Users will not: (i) sell, lease, license or sublicense access to, or use of, any of the Recurring Services and Lumen21 Technology; (ii) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile any of the Recurring Services and Lumen21 Technology in any way for any reason; (iii) provide, disclose, divulge or make available to, or permit use of any of the Recurring Services and Lumen21 Technology by, any third party; (iv) copy or reproduce all or any part of the Recurring Services and Lumen21 Technology; (v) interfere with the Recurring Services in any way; (vi) engage in spamming, mailbombing, spoofing or any other fraudulent, illegal or unauthorized use of the Recurring Services; or (vii) introduce into or transmit through any of the Recurring Services and Lumen21 Technology any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; or (viii) release to any third party the results of any evaluation of the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of Lumen21.
5. ARTICLE 5 - LUMEN21 REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1. Authority and Performance. Lumen21 represents and warrants that (i) it has the legal right and authority to enter into this MSA and perform its obligations under this MSA, and (ii) the performance of its obligations and delivery of the Services to Customer will not violate, or cause a breach of, any agreements between Customer and any third parties.
5.2. Hardware. THE HARDWARE IS PROVIDED ON AN "AS IS/WHEREAS" BASIS. In the event the Hardware fails to operate substantially in accordance with its technical specifications and such failure causes a material adverse effect on Customer’s ability to use the Recurring Services, then Customer’s sole and exclusive remedy and Lumen21’s sole and exclusive liability is for Customer to return the Hardware to Lumen21 and for Lumen21 to provide replacement Hardware. In the event the Hardware fails to operate due to misuse, negligence or damages caused while in the possession of Customer, then Customer will be responsible for all replacement costs (including shipping and handling fees).
5.3. Viruses. Lumen21 will take commercially reasonable actions and precautions to screen for the introduction of viruses and similar programs designed to impede or harm use of the systems used by Lumen21 to provide the Services. In the event viruses or such similar programs are identified, Lumen21 will take commercially reasonable actions to eliminate and reduce the adverse effects of such viruses or programs on Customer’s use of the Services. The foregoing are Customer’s sole and exclusive remedies and Lumen21’s sole and exclusive liability for any breach of this Section 5.3.
5.4. No Other Warranty. EXCEPT AS SET FORTH IN THIS SECTION 5 AND IN SCHEDULE 1.2 - SERVICE LEVEL AGREEMENT, THE SERVICES AND LUMEN21 TECHNOLOGY ARE PROVIDED "AS IS" AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO ACCURACY, FUNCTIONALITY, PERFORMANCE, MERCHANTABILITY OR NON-INFRINGEMENT. LUMEN21 AND ITS THIRD-PARTY LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. LUMEN21 AND ITS THIRD-PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, COMPLETENESS, SEQUENCE, TIMELINESS OR AVAILABILITY OF THE SERVICES OR LUMEN21 TECHNOLOGY. NO SALES PERSONNEL, EMPLOYEES, AGENTS OR REPRESENTATIVES OF LUMEN21 OR ANY THIRD PARTY ARE AUTHORIZED TO MAKE ANY REPRESENTATION, WARRANTY OR COVENANT ON BEHALF OF LUMEN21 OR ANY OF ITS THIRD-PARTY LICENSORS. ACCORDINGLY, ADDITIONAL ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHOULD NOT BE RELIED UPON AND ARE NOT PART OF THIS AGREEMENT. NEITHER LUMEN21 NOR ANY OF ITS AFFILIATES OR THIRD-PARTY LICENSORS REPRESENT OR WARRANT THAT THE SERVICES OR LUMEN21 TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES OR LUMEN21 TECHNOLOGY IS AT CUSTOMER'S SOLE RISK AND THAT LUMEN21 AND ITS THIRD-PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION OF SERVICES, DELAYS OR ERRORS CAUSED BY ANY TRANSMISSION OR DELIVERY OF THE SERVICES, DATA OR ANY OTHER INFORMATION OR CAUSED BY ANY COMMUNICATIONS SERVICE PROVIDERS. THIS SECTION SHALL SURVIVE TERMINATION OR EXPIRATION AND NON-RENEWAL OF THE MSA.
5.5. Disclaimer of Actions Caused by or Under the Control of Third Parties. LUMEN21 DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM LUMEN21’S DATA CENTERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S OR LUMEN21’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH LUMEN21 WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, LUMEN21 CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, LUMEN21 DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
6. ARTICLE 6 - CUSTOMER REPRESENTATIONS, WARRANTIES AND OBLIGATIONS
6.1. Authority and Performance; No Third-Party Beneficiaries. Customer represents and warrants that (i) it has the legal right and authority to enter into this MSA and perform its obligations under this MSA (and to permit Lumen21 to perform the Services), (ii) the performance of its obligations and use of the Services (by Customer, its customers and users) will not violate, or cause a breach of, any agreements between Customer and any third parties and (iii) no consent of any third party shall be required for Customer to receive the Services.
6.2. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Lumen21 will have the right, in its sole reasonable discretion, to suspend immediately any Services, if deemed reasonably necessary by Lumen21, to prevent any harm to Lumen21 and its business. Lumen21 will provide notice and opportunity to cure if practicable depending on the nature of the breach. Once cured, Lumen21 will promptly restore the Services.
7. ARTICLE 7 - INSURANCE
7.1. Lumen21 Minimum Levels. Lumen21 agrees to keep in full force and effect during the term of this MSA: (i) comprehensive general liability insurance in an amount not less than USD $2 million per occurrence for bodily injury and property damage and (ii) workers' compensation insurance in an amount not less than that required by applicable law. In addition, Lumen21 will maintain an umbrella policy in an amount not less than USD $5 million.
8. ARTICLE 8 - LIMITATIONS OF LIABILITY
8.1. CONSEQUENTIAL DAMAGES WAIVER; LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S BREACH OF SECTION 4.1 ("CONFIDENTIAL INFORMATION") OF THIS MSA OR NONPAYMENT BY CUSTOMER, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. FURTHER, NO CAUSE OF ACTION WHICH ACCRUED MORE THAN TWO (2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST LUMEN21. THE MAXIMUM TOTAL LIABILITY OF LUMEN21 TO CUSTOMER FOR ANY PERFORMANCE OR NON-PERFORMANCE OF THIS MSA SHALL BE LIMITED TO THE TOTAL FEES PAID TO LUMEN21 BY CUSTOMER IN THE ONE (1) YEAR PERIOD PRECEDING THE DATE UPON WHICH ANY SUCH CLAIM FIRST ACCRUED.
8.2. Basis of the Bargain; Failure of Essential Purpose. The parties agree that the limitations and exclusions of liability and disclaimers specified in this MSA represent the parties’ agreement as to the allocation of risk between the parties in connection with Lumen21’s obligations under this MSA, and that such limitations, exclusions and disclaimers will survive and apply even if found to have failed of their essential purpose. The parties acknowledge that Lumen21 has set its prices and entered into this MSA in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this MSA, and that the same form an essential basis of the bargain between the parties.
9. ARTICLE 9 - INDEMNIFICATION
9.1. Mutual Indemnification. Each party will indemnify, defend and hold the other harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") resulting from any claim, suit, action, or proceeding brought by any third party (each, an "Action") against the other or its affiliates alleging personal injury caused by the negligence or willful misconduct of the other party.
9.2. Lumen21 IP Infringement Indemnification. Lumen21 shall defend Customer (at Lumen21's expense) against any Action against Customer or any of its affiliates ("affiliates" being defined as entities that control, are controlled by, or are under common control with, Customer) alleging that the Lumen21 Technology, or any part thereof, or the use thereof, infringe upon a copyright, United States patent published as of the date this MSA is signed by the parties hereto or trade secret of such third party. Lumen21 shall pay any damages finally awarded to such third party by a court of competent jurisdiction resulting from such claim or suit. If the Lumen21 Technology, or any part thereof, are held to infringe a copyright or United States patent published as of the date this MSA is signed by the parties hereto, or result from the misappropriation of a trade secret, or in Lumen21’s sole discretion, are likely to infringe a copyright or United States patent published as of the date this MSA is signed by the parties hereto, or resulted from the misappropriation of a trade secret, Lumen21 (at Lumen21’s sole option) shall (a) procure for Customer the right to continue using the Lumen21 Technology; (b) replace or modify the Lumen21 Technology with technology having substantially similar functionality; or (c) refund to Customer the unearned portion of any fee paid by Customer for use of the Lumen21 Technology through the Services, provided that Customer’s use of the Services (and the Lumen21 Technology) is terminated. Lumen21 will have no responsibility under this Section to the extent the Action arises from: (i) modification of the Lumen21 Technology not carried out by Lumen21 or at its direction; (ii) Customer's failure to install an enhancement provided at no additional charge that would have avoided the alleged infringement; (iii) failure to use the Lumen21 Technology in accordance with the documentation; or (iv) combination of the Lumen21 Technology with technology not provided, authorized or recommended by Lumen21 in writing, unless the Lumen21 Technology were designed to be used in such combination.
9.3. Customer Indemnification. Customer will indemnify, defend and hold Lumen21, its affiliates and customers harmless from and against any and all Losses resulting from or arising out of any Action brought against Lumen21, its affiliates or customers alleging any damage arising out of the Customer Technology or the negligence or willful misconduct of Customer, its representatives or designees.
9.4. Indemnification Procedures. Each party’s obligations under this Section 9 shall arise only if: (a) the party seeking to be indemnified ("Indemnified Party") promptly notifies the other party (the "Indemnifying Party") in writing of any such Action, provided that any delay shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that it was prejudiced by the delay; (b) the Indemnifying Party has sole control of the defense and settlement of such Action, provided that the Indemnifying Party shall not enter into any settlement, without the Indemnified Party’s prior written consent, that would require the Indemnified Party to take any action, or refrain from taking any action, other than permitting the Indemnifying Party to pay money damages on the Indemnified Party’s behalf; and (c) the Indemnified Party fully cooperates with the Indemnifying Party.
10. ARTICLE 10 - TERMINATION
10.1. Termination for Cause. Either party may terminate this MSA or an Order Form, effective as of the date specified in written notice of termination provided to the other party, if: (i) the other party breaches any material term or condition of this MSA or the applicable Order Form and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five (5) days after receipt of written notice from Lumen21; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. For the avoidance of doubt, the failure to cure the breach of a material term or condition of an Order Form may allow a party to terminate that specific Order Form; but all remaining Order Forms shall remain in full force and effect.
10.2. Termination on Expiration of all Services. Either party may terminate this MSA, effective as of the date specified in written notice of termination provided to the other party, if there are no Order Forms with a remaining Service Term.
10.3. Effect of Termination. Upon the effective date of expiration and non-renewal or termination of this MSA or the applicable Order Form:
10.3.1. Lumen21 will cease immediately providing the terminated Services, and Customer’s access to, and use of, the terminated Services will cease immediately;
10.3.2. any and all payment obligations of Customer under this MSA for the terminated Services will immediately become due (including payment for the remainder of the Service Term), except that in the event of termination by Customer pursuant to Section 10.1 or termination by Lumen21 pursuant to Section 9.2, Customer will pay for the applicable Services through the date of termination;
10.3.3. within thirty (30) days following written request following such termination, each party will return or destroy all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirements and with respect to data received in the performance of Lumen21’s Services, such data will be destroyed in accordance with Lumen21’s standard policies. Customer will return to Lumen21 any Hardware or other Lumen21 Technology provided to Customer; and
10.3.4. If Customer requests the physical return of data received in the performance of Lumen21’s Services, Customer will first pay Lumen21 all expenses incurred by Lumen21 to return Customer’s Confidential Information, including, but not limited to, labor costs and the cost of storage media. In addition, in the event Customer has not returned any Hardware within ten (10) business days after the effective date of expiration and non-renewal or termination of this MSA or the applicable Order Form, Lumen21 will invoice Customer for the estimated value of Hardware, with such invoice being due upon receipt.
10.4. Survival. The following provisions will survive any expiration or termination of this MSA: Articles 3, 8, 9, 10 and 11 (excluding Section 11.2) and Sections 4.1, 4.2, and 5.2.
11. ARTICLE 11 - MISCELLANEOUS PROVISIONS
11.1. Force Majeure. Except for the obligations of Customer to make payments to Lumen21, neither party will be liable for any failure or delay in its performance under this MSA due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (each a "Force Majeure Event"), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If Lumen21 is unable to provide Services for a period of fifteen (15) consecutive days as a result of a continuing Force Majeure Event, Customer may cancel the Services and this MSA on written notice to Lumen21. Such termination will be effective on the date specified in the written notice.
11.2. Marketing. Customer agrees that during the term of this MSA, Lumen21 may publicly refer to Customer, orally and in writing, as a customer of Lumen21 including the use of Customer logos. Any other reference to Customer by Lumen21 in press releases requires the written consent of Customer.
11.3. Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this MSA without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
11.4. Non-Solicitation. During the Term of this MSA and continuing through the first anniversary of the expiration and non-renewal or termination of this MSA, Lumen21 and Customer agree that it will not, and will ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by Customer or Lumen21 or contracted by such parties ("Employees") to provide Services to Lumen21 or Customer. An Employee shall be deemed covered by this Section while so employed and for a period of six (6) months thereafter.
11.5. No Third-Party Beneficiaries. Lumen21 and Customer agree that, except as otherwise expressly provided in this MSA, there shall be no third-party beneficiaries to this MSA, including, but not limited to the insurance providers for either party or the customers of Customer.
11.6. Governing Law; Jurisdiction. This MSA and the rights and obligations of the parties created hereby will be governed by and construed in accordance with the internal laws of the State of California without regard to its conflict of law rules and specifically excluding from application to this MSA that law known as the United Nations Convention on the International Sale of Goods. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this MSA or the Services provided hereunder. Failing that, if any action is brought whatsoever related to this MSA or the Services, jurisdiction and venue shall lie exclusively in the federal and state courts in Orange County, in the State of California.
11.7. Severability. If any provision of this MSA or an Order Form is determined to be invalid or unenforceable, that provision shall be deemed stricken and the remainder of this MSA or the affected Order Form will continue in full force and effect insofar as it remains a workable instrument to accomplish the original intent and purpose of the parties, and, if possible, the parties will replace the severed provision with a provision that reflects the intention of the parties with respect to the severed provision but that will be valid and enforceable.
11.8. Waiver. A delay or omission by either party hereto to exercise any right or power under this MSA or an Order Form shall not be construed to be a waiver thereof. A waiver by either of the parties hereto, of any of the covenants to be performed by the other or any breach thereof, will not be construed to be a waiver of any succeeding breach thereof, or of any other covenant herein contained. All waivers shall be in writing and signed by the party waiving its rights.
11.9. Assignment. Customer may assign this MSA in whole (and not in part) as part of a corporate reorganization, consolidation, merger, sale of all or substantially all of its assets, or transaction or series of related transactions that results in the transfer of fifty percent (50%) or more of the outstanding voting power of Customer, provided that the assignee agrees to be bound by the terms and conditions of this MSA (including, but not limited to all Order Forms) and the assignor remains liable for the obligations of the assignee). Customer may not otherwise assign its rights or delegate its duties under this MSA either in whole or in part without the prior written consent of Lumen21, and any attempted assignment or delegation without such consent will be void. Lumen21 may assign this MSA in whole or part. Lumen21 also may delegate the performance of certain Services to third parties, including, but not limited to Lumen21’s wholly owned subsidiaries, provided Lumen21 controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services. This MSA will bind and inure to the benefit of each party's successors and permitted assigns.
11.10. Notice. Any notice or communication required or permitted to be given under this MSA may be delivered by hand, deposited with an overnight courier, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the Order Form or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, faxed or sent, whichever is earlier.
11.11. Relationship of Parties. Lumen21 and Customer are independent contractors and this MSA will not establish any relationship of partnership, joint venture, employment, franchise or agency between Lumen21 and Customer. Neither Lumen21 nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided in this MSA.
11.12. Article and Section Headings; Pronouns; Plural and Singular. The article and section headings in this MSA are for reference purposes only and shall not affect the meaning or interpretation of this MSA. References in this MSA to a designated "Article" or "Section" refer to an Article or Section of this MSA unless otherwise specifically indicated. All pronouns used in this MSA shall be construed as including both genders and the neuter. All capitalized defined terms used in this MSA are equally applicable to their singular and plural forms.
11.13. Entire Agreement. This MSA and all documents incorporated into this MSA by reference, constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede all of the prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter of this MSA. Each Order Form (including those governing a Statement of Work) constitute separate contracts that incorporate this MSA and upon signing of each Order Form by the parties constitutes the entire agreement between the parties with respect to the subject matter of that Order Form, and supersedes all of the prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter of that Order Form. Any terms of a purchase order provided by Customer or other response by Customer shall be deemed objected to by Lumen21 without need of further notice of objection, and shall be of no effect or in any way binding upon Lumen21.
11.14. Counterparts; Electronically Transmitted Documents and Signatures. This MSA may be executed in one or more counterparts, each of which are deemed an original and all of which together constitute one and the same instrument, it being understood that the parties need not sign the same counterpart. A manual signature on this MSA, which image is transmitted electronically, will constitute an original signature for all purposes. The delivery of this MSA, including signature pages, may be transmitted or exchanged by the parties by way of exchanging (a) signed originals, (b) facsimile transmission, (c) by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, including sending in portable document format (PDF) via email, or (d) any combination of any such means, and the parties hereby adopt as original any such documents received. Delivery of such documents by facsimile transmission or by any other electronic means will have the same effect as physical delivery of the paper document bearing the original signature.
11.15. Amendments. This MSA and any Order Form may be amended or changed only by a written document signed by authorized representatives of Lumen21 and Customer.
11.16. Interpretation of Conflicting Terms. In the event of a conflict between or among the terms in this MSA or any Order Form, the terms of the Order Form control.
MASTER SERVICES AGREEMENT SCHEDULE 1.1 - DEFINITIONS
The following defined terms are equally applicable in their singular and plural forms:
"Action" has the meaning set forth in Section 9.1 of this MSA.
"Activation Link" has the meaning set forth in Section 2.1(b) of this MSA.
"Lumen21" has the meaning set forth in the introductory paragraph to this MSA.
"Lumen21 Technology" means Lumen21’s proprietary technology used by Lumen21 to provide the Services, including but not limited to, the Hardware, the software tools, scripts, parsers, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects, and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world.
"Chronic Problems" has the meaning set forth in Schedule 1.2 - Service Level Agreement of this MSA.
"Confidential Information" has the meaning set forth in Section 4.1(a) of this MSA.
"Customer" has the meaning set forth in the introductory paragraph to this MSA.
"Customer Technology" means Customer’s proprietary technology, including Customer’s Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world.
"Force Majeure Event" has the meaning set forth in Section 11.1 of this MSA.
"Hardware" means any device provided by Lumen21 to Customer for use in connection with the Services.
"Indemnified Party" has the meaning set forth in Section 9.4 of this MSA.
"Indemnifying Party" has the meaning set forth in Section 9.4 of this MSA.
"Initial Term" means the minimum term for which Lumen21 will provide the Services to Customer, as indicated on the applicable Order Form.
"Losses" has the meaning set forth in Section 9.1 of this MSA.
"MSA" has the meaning set forth in the introductory paragraph hereof.
"Order Form" has the meaning set forth in Section 1.2 of this MSA.
"Recurring Services" means Services for which Lumen21 charges a recurring fee but specifically excluding Custom Services.
"Renewal Term" has the meaning set forth in Section 2.2(b) of this MSA.
"Services" means the specific services provided by Lumen21 as described on the Order Form.
"Service Commencement Date" means the date Lumen21 commences providing the Services to Customer as indicated in Section 2.1 of this MSA.
"Service Term" means, with respect to each Order Form, the Initial Term and all Renewal Terms.
"Statement of Work" has the meaning set forth in Section 2.1(d) of this MSA.
"User" has the meaning set forth in Section 4.3 of this MSA.
"User Interface" means the Lumen21 management portal, running in Lumen21’s backend, that provides access to log data and appliance management.
The terms "written" and "in writing" mean anything reduced to a tangible form by a party, including a printed, photocopy, facsimile or hand-written document but excluding email or other electronic formats.
MASTER SERVICES AGREEMENT SCHEDULE 1.2 - SERVICE LEVEL AGREEMENT
1. Service Level Warranty. Subject to the exceptions set forth herein, Lumen21 warrants that it will provide each Service at or above the service levels defined below (the "Service Level Warranty"):
1.1. Lumen21 will provide 99.9% reliability for its User Interface. The 99.9% reliability is calculated by determining the total time in minutes for a month, subtracting all planned maintenance time, and then dividing all unplanned downtime of the User Interface by the remaining time. Lumen21’s obligations under this MSA are in effect during all hours of operation, except during planned maintenance windows and any approved additional maintenance windows scheduled by Lumen21.
1.2. Lumen21 will notify Customer at least three (3) days in advance of any additional planned maintenance occurring outside of the standard maintenance window and make efforts to accommodate Customer’s needs regarding the additional maintenance requirement. Lumen21 will provide Customer as much notice as possible when unplanned ("Emergency") maintenance occurs.
1.3. Lumen21 will respond to properly submitted service requests within two (2) hours of receipt and either resolve or escalate properly submitted service requests within twenty-four (24) hours of receipt. Service requests must be submitted via web portal, e-mail or telephone.
2. Remedies. In the event that Lumen21 fails to provide a Service at the level required by the Service Level Warranty, Customer’s only remedies are those set forth in this service Level agreement (the "Remedies"). For Services purchased as part of a suite, the Service Credit will be based on the pro-rata portion of the cost of the Service, as determined by Lumen21 in its reasonable discretion.
3. Customer Must Request Remedies. In order to receive any of the Remedies, Customer must notify Lumen21 via email to Accounting@Lumen21.com within seven (7) days from the time Customer becomes eligible to receive such Remedies. Failure to comply with this requirement will forfeit Customer’s right to receive such Remedies.
4. Remedies Shall Not Be Cumulative; Maximum Remedy; No Remedies if Delinquent. The Remedies set forth herein are not cumulative. The aggregate maximum Remedy for any and all failures to provide Services at the level required that occur in a single calendar month shall not exceed one calendar month of service credit. If Customer is late in making any payments owing pursuant to this MSA at the time of the occurrence which would otherwise entitle Customer to Remedies, none of such Remedies shall be available to Customer.
5. Termination Option for Problems. Customer may terminate this MSA if the Customer Experiences Chronic Problems. Chronic Problems shall mean two (2) or more service level warranty deficiencies that are properly reported and credited within a three (3) month calendar period, as specified within this Service Level Agreement. The Submitted Service Requests 2-Hour Response Commitment is specifically excluded from qualifying as Chronic Problems. Customer must provide Lumen21 written notice of termination for Chronic Problems in writing within seven (7) days from the time Customer becomes eligible to terminate for Chronic Problems.
6. The Service Level Warranty set forth in this Service Level Agreement does not apply to any Services that expressly exclude this Service Level Warranty (as stated in the Order Form or Statement of Work for such Services).
Last updated: July 28, 2017