Master Product Deployment & Services Agreement

The following terms and conditions (“Terms”) apply to orders for Company Products and/or Services (each, as defined below) from Lumafield, Inc. with a place of business at 38 Cameron Avenue, Suite 100, Cambridge, MA 02140 (“Company”), that are placed by Customer via the execution of a Company-issued order form for such Company Products and/or Services that references these Terms (the “Order Form”). “Customer” refers to the entity identified at the top of the Order Form.

The Order Form and these Terms constitute Company’s offer with respect to the Company Products identified in the Order Form and any Services identified in the Order Form or these Terms, and Customer accepts this offer by executing the Order Form. The executed Order Form and these Terms are a legally binding contract between Company and Customer and constitute the entire agreement between the parties with respect to the Company Products identified in the Order Form and any Services identified in the Order Form or these Terms (the “Agreement”).

1. PROVISION OF COMPANY PRODUCTS AND SERVICES

1.1 Products. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer with Company’s proprietary CT inspection system composed of Company Hardware and Company Software (each, as defined below) for computed tomography scanning, reconstruction, and viewing and analysis of volumetric data  (collectively, the “Company Products”) as set forth in an Order Form. Any hardware provided to Customer on a subscription basis as set forth on an Order Form shall be referred to herein as “Consigned Hardware,” any hardware sold to Customer as set forth on an Order Form shall be referred to herein as “Purchased Hardware,” and Consigned Hardware and Purchased Hardware shall together be referred to herein as “Company Hardware.”

1.2 Company Hardware.

1. Installation. Company shall install the Company Hardware at Customer’s designated location(s) set forth in the Order Form. Company shall work with Customer to install the Company Hardware at such designated location(s), which includes bring-up calibration, safety surveying, and applicable training(s). See Section 1.6 (Maintenance & Support Services) for additional information.
2. Transportation. Customer will provide transportation for the Company Hardware at Customer’s cost between Customer’s preferred installation location and (a) from Company’s warehouse or other location designated by Company, and (b) for solely Consigned Hardware, to Company’s warehouse or other location designated by Company upon termination or expiration of this Agreement. Company will work with Customer’s transportation provider (i.e., shipper or freight carrier) to provide instructions and pickup coordination as reasonably required. Customer is responsible for designating a preferred installation location, uncrating Company Hardware, and moving Company Hardware to Customer’s preferred installation location, including rigging support, if necessary. Risk of loss for the Company Hardware (and title, with respect to Purchased Hardware) will transfer to Customer upon loading of the Company Hardware by Customer or its designated transport provider at Company’s warehouse or other location designated by Company. Risk of loss for Consigned Hardware will transfer back to Company when delivered to Company by Customer or its transport provider upon the expiration or termination of the Subscription Term for such Consigned Hardware.
3. Use of Consigned Hardware. Notwithstanding anything herein to the contrary, Company shall at all times retain title to the Consigned Hardware while in the possession of Customer. During the Subscription Term for any Consigned Hardware, Customer shall not remove the Consigned Hardware from the designated location without the prior written consent of Company, shall keep the Consigned Hardware in substantially the same condition as it was provided to Customer (normal wear and tear in connection with use of such Consigned Hardware in accordance with this Agreement excepted), and shall be responsible for any damage to such Consigned Hardware while in the possession of Customer (except to the extent caused by the performance by Company of the Services in accordance with Section 1.6 below). The Company may at its discretion, from time to time during the Subscription Term for any Consigned Hardware, replace or substitute the Consigned Hardware with a unit that has substantially similar or upgraded features and functionality. Company shall coordinate the timing of such replacement or upgrade with Customer and any such replacement or upgrade shall be at no additional cost to Customer.

1.3 Company Software License. Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right, to (a) access and use the firmware and the software that is installed on the Company Hardware and (b) access and use the software made available to Customer which is hosted by Company and accessed directly by the Company Hardware, or by Customer through Company’s web applications (collectively, the “Company Software”), in each case (i) solely during the Subscription or License Term for such Company Software, (ii) solely in connection with Customer’s use of the Company Products, and (iii) solely in accordance with the installation guides, manuals and other documentation made available to Customer by Company for use of the Company Products (the “Documentation”).  For clarity, all firmware and software is licensed, not sold, by Company even if incorporated in or installed on Purchased Hardware.

1.4 Archival Storage. Company shall provide storage of Customer’s Archived Scans free of charge throughout the Term so long as the Company Hardware is not operated at a rate of greater than 60 scans per day, calculated for a specific scanner as the total number of scans across a trailing 90-day period divided by 90. Should the rate of operation exceed 60 scans per day for any scanner operated by Customer, the parties agree that such scanner shall be deemed a Production Scanner. Furthermore, the parties agree that Company will charge Customer and Customer shall pay to Company a cloud archival storage fee of $0.05 per month per each archived scan originating from a Production Scanner in its control.

1.5 Restrictions. Customer may not (a) use the Company Products other than for Customer’s internal business purposes only or make any part of the Company Products or Customer’s Logon Credentials (defined below) accessible to anyone other than employees of the Customer who are authorized to use the Company Products (“Authorized Users”); (b) permit any Authorized Users to use the Company Products except in accordance with the terms and conditions of this Agreement and the Documentation; (c) attempt to reverse engineer, decompile, disassemble, or extract any element of and/or otherwise discover any source code, algorithms, methods, or techniques embodied in the Company Products, except to the extent expressly permitted by applicable law, notwithstanding contractual obligations to the contrary, and then only after (1) Customer has notified Company in writing of its intended activities and the information sought and (2) Company fails to provide such information within a reasonable period of time following such notice; (d) modify, transfer, assign, pledge, rent, lease, sell, resell the Company Products, or create derivative works based on the Company Software or any user interfaces related to the foregoing; (e) hide, tamper, amend, alter, obscure, remove or destroy any proprietary markings or proprietary legends placed upon or contained within the Company Products or any related materials, or any Documentation; (f) introduce code or other items to the Company Software, in a manner that adversely affects the operation of the Company Products or other systems; or (g) use the Company Products in violation of this Agreement, the Documentation, or applicable law.  Although Company has no obligation to monitor Customer’s use of the Company Products, Company may do so and may prohibit any use of the Company Products it believes may be (or alleged to be) in violation of the foregoing.

1.6 Maintenance & Support Services.  

1. Installation and Validation. Company will send staff or agents to provide on-site installation and set-up of the Company Products, conduct a safety survey, and calibrate the Company Products prior to Customer’s use of the Company Products. 
2. Training.  Company will provide on-site or remote training for Authorized Users with respect to the utilization of the Company Products including acquiring, reconstructing and analyzing computed tomography scans.
3. Maintenance and Support. For the duration of the Subscription Term applicable to Company Software and/or Consigned Hardware, and for the duration of the Purchased Hardware Warranty Period (as defined below) for Purchased Hardware:
   1. Support. Company will provide email support services through a designated email address provided by Company. Emails may be submitted at any time and Company will use commercially reasonable efforts to respond to such emails within one (1) business day after receipt. Additionally, if a support question or issue cannot be resolved by email, Company will make support personnel available via video conference to provide support.
   2. Maintenance. Company will provide maintenance services to keep the Company Products in good working condition throughout the Subscription Term or the warranty term (the “Service Period”). See Section 6.1 (Limited Warranty) for additional information. 
   3. On-site Repairs and Scan Coverage. In the case of a malfunction during the Service Period that cannot be repaired remotely, Company will repair the Company Products on-site  at its sole expense, unless the malfunction is caused by Customer, in which case the cost will be at Customer’s sole expense. Company will use commercially reasonable efforts to send a technician to the Company Products’ designated location as soon as reasonably possible, but in any case no later than 10 business days from Customer’s notification of the malfunction. While Customer is waiting for the Company Products to be repaired, Customer may use Company’s service center to scan its parts at no additional cost. Customer will cover roundtrip shipping costs related with shipping the parts to and from Company’s service center.

(All services described in this Section 1.6, collectively, the “Services”).

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2. CUSTOMER RESPONSIBILITIES

2.1 Export Restrictions.  Customer may not remove or export from the United States or allow the export or re-export of the Company Products, Documentation or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Company Software and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 

2.2 Use of Company Products.  Customer represents, covenants, and warrants that Customer will use the Company Products only in compliance with the terms and conditions of this Agreement, the then-current Documentation, and all applicable laws and regulations.

2.3 Ancillary Equipment.  Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Company Products, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Ancillary Equipment”). Customer shall also be responsible for maintaining the security of the Company Products and Ancillary Equipment.

2.4 Account Credentials.  Customer acknowledges and agrees that, if the necessary functionality is made available as part of the Company Products, Customer shall require each Authorized User to create a user account, including a user name and password, or other logon credentials (collectively, “Logon Credentials”) to access and use the Company Products. Each Authorized User is solely responsible for maintaining the confidentiality of his or her Logon Credentials and for all activities on Company Products that occur through the use of such Logon Credentials.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose proprietary or non-public information relating to the Disclosing Party’s business, products, services, customers, financials and other information which is marked confidential or should reasonably be understood to be confidential based on the nature of the information (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Company Products, including the source and object code thereto, and any processes, algorithms, methods, and related know-how and residual knowledge developed, created or used by Company or its agents in connection with the provision of the Company Products and the performance of any Services.  Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services  (“Customer Data”).  Customer Data shall also include all data created and/or stored by Customer’s use of the Company Products. Proprietary Information shall not include data or information which (i) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of the Receiving Party; (ii) was known to the receiving party at the time of disclosure without an obligation of confidentiality, as evidenced by the Receiving Party’s written records; (iii) is disclosed after written approval of the Disclosing Party; (iv) becomes known to the Receiving Party from a source other than the Disclosing Party without an obligation of confidentiality; or (v) is developed by the Receiving Party independently of the Disclosing Party’s Proprietary Information as demonstrated by written records.

3.2 Use and Disclosure of Confidential Information.  Each party agrees to protect the other party’s Proprietary Information in the same manner that it protects its own Proprietary Information of a similar nature but in no event less than a reasonable standard of care. Neither party shall (i) disclose to any unaffiliated third party any Proprietary Information; or (ii) use the Proprietary Information for any purpose other than that indicated in this Agreement without the Disclosing Party’s prior written approval. The Receiving Party agrees to notify the Disclosing Party promptly of any unauthorized disclosure of Proprietary Information and to assist the Receiving Party in remedying any such unauthorized disclosure. The Receiving Party agrees that all persons having access to the Proprietary Information under this Agreement will abide by the obligations set forth in this Agreement. Nothing in this Agreement shall be construed to restrict the parties from disclosing Proprietary Information as required by law or court order or other governmental order or request, provided in each case the party requested to make such disclosure shall timely inform the other party and use all reasonable efforts to limit the disclosure and maintain the confidentiality of such Proprietary Information to the extent possible. In addition, the party required to make such disclosure shall permit the other party to attempt to limit such disclosure by appropriate legal means. All Proprietary Information disclosed hereunder shall remain the sole property of the Disclosing Party and the Receiving Party shall have no interest in or rights with respect thereto except as expressly set forth in this Agreement.  

3.3 Survival. The provisions in this Section 3 shall survive for five (5) years after termination or expiration of all Subscription Terms, except that with respect to any Proprietary Information that constitutes a trade secret as defined under applicable law, the Receiving Party will continue to be bound by its obligations under this Section 3 for so long as such information continues to be eligible for trade secret protection under applicable law, but in no event for a period of less than the five (5) year period specified immediately above.

3.4 Proprietary Rights.  

1. Customer Data. Customer shall own all right, title and interest in and to the Customer Data. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Company Products and related systems and technologies and the Services (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after any Subscription Term) to (a) use such information and data to improve and enhance the Company Products and Services and for other development, diagnostic and corrective purposes in connection with the Company Products, the Services and other Company offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
2. Company Products.  As between the parties, Company retains all rights, title, and interest (including all intellectual property rights and other rights) in and to the Company Products, the Documentation and any materials or work product resulting from the Services, including any updates of any of the foregoing, and except for the licenses set forth herein, no other rights, title or licenses in or to any intellectual property of the Company, whether express or implied, is granted or conveyed under this Agreement.  
3. Feedback. If Customer elects to provide any feedback or comments to Company related to the Company Products or the Services (“Feedback”), all Feedback shall be the sole and exclusive property of Company, and Company shall have the right to use and disclose such Feedback in any manner and for any purpose in Company’s discretion without remuneration, compensation or attribution, provided that Company is under no obligation to use such Feedback.
4. Promotional Use of Scan Data. Customer may not publish any data or images produced on Company Products in any promotional materials in any medium without the prior written consent of Company which shall not be unreasonably withheld.

4. PAYMENT OF FEES

4.1 Fees.  Customer will pay Company the then applicable fees described in the Order Form in accordance with the terms therein (the “Fees”). If Customer’s use of the Company Products or the Services exceeds the capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of the Order Form), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Subscription Term or then-current Renewal Subscription Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer in good faith believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s Customer support department.

4.2 Payment.  Company may choose to bill through an invoice, in which case, full payment for invoices issued must be received by Company on or before the due date specified on the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate suspension or termination of Service.

4.3 Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchase of Company Products and Services hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on Company’s income, property, and employees.

5. TERM AND TERMINATION FOR COMPANY SOFTWARE AND CONSIGNED HARDWARE

5.1 Term.  Subject to earlier termination as provided below, the term for the license to Company Software and any Consigned Hardware (if applicable) shall be as specified in the Order Form (the “Initial Subscription Term” or “Initial Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Subscription Term (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”), unless either party requests termination at least thirty (30) days prior to the end of the Initial Subscription Term or then-current Renewal Subscription Term, as applicable.

5.2 Termination.  In addition to any other remedies it may have, either party may also terminate a Subscription Term upon thirty (30) days’ prior notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and is unable to cure such breach within thirty (30) days. 

5.3 Effect of Termination. In the event of any termination or expiration of a Subscription Term, Customer will pay in full for all use of the Company Products and receipt of Services under that Subscription Term up to and including the last day on which such are provided. Upon any termination of a Subscription Term, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. Customer must promptly return the Consigned Hardware upon the termination or expiration of the Subscription Term for such Consigned Hardware in accordance with the instructions of Company. 

5.4 Survival.  All sections of this Agreement which by their nature should survive termination of any Subscription Term will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability. 

6. WARRANTY AND DISCLAIMER

6.1 Limited Warranty.  During the Service Period, Company warrants that such Company Products will function substantially in accordance with its written specifications included in the Documentation The foregoing warranty shall be null and void if any non-conformance arises from Customer’s use or handling of the Company Products in violation of the terms and conditions of this Agreement and/or the Documentation. In the event of a breach of Company’s warranty in this Section 6.1, Company agrees to use commercially reasonable efforts to cause the Company Products to function in substantial accordance with its specifications included in the Documentation. With respect to Company Software and Consigned Hardware, if Company notifies Customer that it is unable to remedy any material breach of this warranty, Customer or Company shall have the right to terminate the applicable Subscription Term and, upon such termination, Company will refund to Customer a pro rata portion of any Fees Customer prepaid for based on the remaining unused portion of that Subscription Term. For any breach of the warranty above, Customer’s sole and exclusive remedy, and Company’s sole liability shall be as provided in this Section 6.1.

6.2 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 6.1, THE COMPANY PRODUCTS AND THE SERVICES PROVIDED HEREUNDER (INCLUDING UNDER ANY ORDER FORM) ARE PROVIDED “AS IS”, “AS-AVAILABLE”, WITH ALL FAULTS, AND COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 6.1, CUSTOMER’S USE OF THE COMPANY PRODUCTS AND RECEIPT OF THE SERVICES IS ENTIRELY AT CUSTOMER’S OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.

7. INDEMNITY

7.1 Indemnification by Company.  Company hereby agrees to defend Customer against any third party claim or action alleging that the Company Products infringe any United States patent or any copyright or misappropriate any trade secret, and to pay all damages and expenses (including costs and attorneys’ fees) awarded by a court or agreed to in a final, agreed settlement, provided that Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Company Products (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery (other than by Company), (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Company Products is not strictly in accordance with this Agreement and the Documentation. If, due to a claim of infringement, the Company Products are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Company Product to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Company Product, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Company Software and Consigned Hardware. This Section 7.1 shall be Customer’s sole and exclusive remedy, and Company’s sole liability for any actual or alleged infringement.

7.2 Indemnification by Customer. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from (i) an alleged violation of applicable law or regulation in connection with this Agreement and/or (ii) Customer’s use of Company Products or Services in violation of this Agreement and the Documentation, provided that Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Customer will not be responsible for any settlement it does not approve in writing.

8. LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT THE FOLLOWING LIMITATION OF LIABILITY IS PROHIBITED BY LAW, COMPANY’S TOTAL LIABILITY TO CUSTOMER SHALL BE LIMITED TO DIRECT DAMAGES SUSTAINED BY CUSTOMER UP TO A MAXIMUM AMOUNT OF THE FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO SUCH LIABILITY; PROVIDED THAT, REGARDLESS OF ANY STATUTE OR LAW, NO CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR REASONABLY OUGHT TO HAVE BEEN DISCOVERED BY CUSTOMER; FURTHERMORE, NEITHER COMPANY NOR ANY OF ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE TO CUSTOMER FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT EVEN IF COMPANY HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE ESSENTIAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.

9. MISCELLANEOUS

9.1 Governing Law.  This Agreement and all matters arising out of or relating to this Agreement shall be governed by the internal laws of the Commonwealth of Massachusetts without giving effect to any conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in Boston, Massachusetts in connection with any claim, action, suit, or proceeding relating to this Agreement, except that either party may seek injunctive, equitable or similar relief from any court of competent jurisdiction.   

9.2 Severability and Waiver.  If any provision of this Agreement is held to be illegal, invalid, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.

9.3 Assignment.  Customer may not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Company which may be withheld at Company’s discretion. Any purported assignment, transfer or delegation by Customer shall be null and void. Company shall have the right to assign Agreement without Customer’s consent and without prior notice to Customer. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.

9.4 Independent Contractor.  Company’s relationship with Customer will be that of an independent contractor. It is agreed and understood that neither party is the agent, representative, nor partner of the other and neither party has any authority or power to bind or contract in the name of or to create any liability against the other in any way or for any purpose pursuant to this Agreement. Nothing contained in this Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other, constitute the parties as partners, joint venturers, principal and agent, employer and employee, co-owners, or otherwise as participants in a joint undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.

9.5 Entire Agreement.  The Agreement (i.e., these Terms together with the Order Form) is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and understandings between the parties including, without limitation, any prior purchase orders, requests for proposals or other documentation provided by Customer, which are all hereby rejected and shall be null and void even if Company effects delivery of the Company Products or renders Services without reservation. To the extent of a conflict between the terms and conditions of these Terms and the terms and conditions set out in the Order Form, the terms and conditions of the Order Form shall control.

9.6 Notices.  All notices under this Agreement will be in writing to the addresses listed above or to sales@lumafield.com (in case of Company) or the physical address listed above or the email listed in the Order Form (in the case of Customer) and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

9.7 Force Majeure.  Company shall have any liability or responsibility for failure to fulfill any obligation under this Agreement so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances of acts of God or any other cause beyond its reasonable control, including strikes, riots, acts of war, epidemics, pandemics, material shortages, restricting legislation, embargo, blockage, work stoppage or major outage of a public communications carrier.  

9.8 Amendment. Company may, from time to time, amend these Terms by posting the amended Terms on Company’s website, and such amended Terms will apply to Company Products and Services ordered pursuant to Order Forms executed after the posting date (i.e., the “Last Updated” date). For clarity, Customer’s ongoing receipt of Company Products and Services will remain subject to the version of the Terms that were in effect at the time the Order Form for such Company Products and Services was executed by the parties. If the Company desires to amend these Terms with respect to the ongoing receipt of Company Products and Services, Company may do so upon written notice to Customer; provided, however, that if any such amendment materially and adversely modifies Customer’s rights and obligations with respect to the Company Products or Services, Customer may provide written notice to Company that Customer desires to terminate its relationship with Company, and Company will provide the Customer with a pro-rata refund of any pre-paid Fees attributable to the period of time for which Company Products and/or Services are not used by Customer due to the termination. Except as expressly permitted in this Section 9.8, as between Company and Customer, this Agreement may be amended only by (i) a written agreement signed by authorized representatives of each of Company and Customer or (ii) a waiver in accordance with Section 9.3.

9.9 Effectiveness. This Agreement shall be effective as of the date on which the applicable Order Form is executed by each of Company and Customer. The Order Form may be executed and delivered (including by facsimile transmission or electronic mail in portable document format) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.