LUNA XIO MOBILE APP END USER LICENSE AGREEMENT
PLEASE READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE CLICKING THE “I AGREE” BUTTON, DOWNLOADING, INSTALLING OR USING THIS MOBILE APPLICATION SOFTWARE.
This Mobile App End User License Agreement (“Agreement”) applies to the mobile software applications (including without limitation bug fixes, updates, upgrades, and any general, limited and early access releases), that Luna XIO, Inc. (“Luna” or “Company”) makes available or may make available in the future under these terms (each an “App” and collectively “Apps”). By clicking the “I Agree” button, downloading, or using the App, You are agreeing to be bound by the terms and conditions of this Agreement. If You do not agree to the terms of this Agreement, do not click on the “I Agree” button, do not download, install or use the App.
This Agreement is between You and the Company only and not with Apple Inc. (“Apple”), Google Inc. (“Google”), or the App Store (as defined below). By installing or using any of the Apps, You represent that: (a) You are not a competitor of the Company and have a bona fide legitimate interest and use for the App; and/or (b) You are employed by or affiliated with a customer (“Customer”) of Luna’s communication platform as a service (the “Platform”) and are authorized by such Customer to use the applicable Platform.
1. Other Definitions
“App Store” means the digital distribution service operated and developed by Apple Inc. (Apple App Store) or Google Inc. (Google Play Store) by which an App has been downloaded to your Device.
“Content” refers to data or other information that can be uploaded or otherwise made available by You, regardless of the form of that content.
“Device” means any device that can access and execute or run an App such as a smartphone, a digital tablet, or wearable.
“You” means the individual accessing or using the App, or the Customer on behalf of which such individual is accessing or using the App, as applicable.
2. License and Scope.
2.1 The Company grants You a revocable, non-exclusive, non-transferable, limited license to download, install and use the Apps, strictly in accordance with the terms of this Agreement. Android users may install and use any number of copies of the Apps. iOS/iPadOS/watchOS users may install and use the number of copies of each App on an iOS-based or iPadOS-based Device as permitted by Apple’s Media Services Terms and Conditions usage rules (“Usage Rules”). You may only use the Apps to interoperate and communicate with the Platform on a Device that You own or control and as permitted by the Usage Rules.
2.2 The Apps are licensed, not sold. Luna reserves all rights in and to the Apps. You agree not to, and You will not permit others to:
- sublicense, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose, or otherwise commercially exploit the Apps or make an App available to any third party;
- copy or use the Apps for any purpose other than as permitted under the above section 2.1;
- modify, make derivative works of, disassemble, decrypt, reverse compile, or reverse engineer any part of an App;
- remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) of the Company or its affiliates, partners, suppliers, or the licensors of the App;
- disclose the results of any benchmark tests of an App to any third party without the Company’s prior written approval; or
- use an App in any way that is against the law or to create or propagate malware.
- Content. You expressly understand and agree that You are solely responsible for the accuracy, quality and legality of the Content, the means by which You acquired the Content and your use of the Content with the Apps and the Platform. You agree to abide by all applicable laws and regulations regarding the collection, disclosure, and use of the Content, including without limitation, third party intellectual property rights, and all applicable privacy and data security laws and regulations. Luna is under no obligation to review or screen Content.
- Pre-Release/Beta Apps. If You are downloading a pre-release or beta version of an App, the terms of this section also apply to the pre-release or beta App.
4.1 The App may not operate correctly and may be different from the commercially released version;
4.2 Confidential Information. The App, including its user interface, features and documentation, is confidential and proprietary to Luna and its suppliers.
- Use. For five years after installation of the App or its commercial release, whichever is first, You may not disclose confidential information to third parties. You may disclose confidential information only to your employees and consultants who need
to know the information. You must have written agreements with them that protect the confidential information at least as much as this agreement.
- Survival. Your duty to protect confidential information survives this Agreement.
- Exclusions. You may disclose confidential information in response to a judicial or governmental order. You must first give written notice to Luna to allow it to seek a protective order or otherwise protect the information.
- Confidential information does not include information that:
- becomes publicly known through no wrongful act;
- You received from a third party who did not breach confidentiality
- obligations to Luna or its suppliers; or
- You developed independently.
- Updates, Maintenance and Modifications.
5.1 The Company may from time to time provide updates to the Apps, which may include patches, bug fixes, updates, upgrades, and other modifications. Updates may modify or delete certain features and/or functionalities of an App. You agree that the Company has no obligation to: (a) provide any Updates; or (b) continue to provide or enable any features and/or functionalities of an App. You further agree that all updates will be: (i) deemed to constitute an integral part of the Application; and (ii) subject to the terms and conditions of this Agreement.
5.2 The Company is not obligated under this Agreement to provide any support services for the Apps, and that that any maintenance and support services, if any, will be provided by the Company and that neither Apple nor Google or their App Stores have any obligation whatsoever to furnish any such services. Any support provided is “as is”, “with all faults”, and without warranty of any kind.
5.3 The Company reserves the right to modify, suspend or discontinue, temporarily or permanently, the Apps or the Platform, with or without notice and without liability to You. In no event will the Company be liable for the modification of, or disabling of access to, the Apps. The Company may also impose limits on the use of or access to the Apps, in any case and without notice or liability.
- Open Source Components. Any use of Open Source Components will be governed by, and subject to, the terms and conditions of the applicable open-source license (“Open Source License“). ‘Open-Source Components” means any software component that is that is subject to an Open Source License. Open Source components used in this app are identified and described at www.lunaxio.com/legal/opensource. Luna’s use of Open Source Components in the Apps will not: (a) materially or adversely affect Your right to use that part of an App; or (b) cause any Device or Your software to become subject to an open source license, provided You only use the App in accordance with the terms of this Agreement and use any Open Source Components in accordance with the applicable Open Source License.
- Feedback. If You give feedback about an App to the Company, You give to the Company, without charge, the right to use, share and commercialize your feedback in any way and for any purpose, without restriction or consideration. You will not give feedback that is subject to a license that requires the Company to license its software or documentation to third parties because the Company includes your feedback in them. These rights survive this Agreement.
- Disclaimer of Warranties. THE APPS ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. THE COMPANY. APPLE, GOOGLE AND OUR AND THEIR SUPPLIERS WILL NOT PROVIDE YOU WITH ANY INDEMNIFICATION FOR THE APPS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY, APPLE AND GOOGLE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPS WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN TYPES OF WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. BUT IN SUCH A CASE THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW. TO THE EXTENT ANY WARRANTY EXISTS UNDER LAW THAT CANNOT BE DISCLAIMED, THE COMPANY, NOT THE APP STORE, SHALL BE SOLELY RESPONSIBLE FOR SUCH WARRANTY. YOU ACKNOWLEDGE THAT APPLE AND GOOGLE HAVE NO RESPONSIBILITY FOR YOUR POSSESSION AND/OR USE OF AN APP, INCLUDING, BUT NOT LIMITED TO: (A) PRODUCT LIABILITY CLAIMS;
- ANY CLAIM THAT AN APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; (C) THIRD PARTY CLAIMS OF INFRINGEMENT; AND (D) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
- LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LUNA OR ITS SUPPLIERS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LUNA HAS BEEN ADVISED OF THE POSSIBILITY 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 YOU. In no event shall Luna’s or its suppliers’ total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
- Term and Termination.
10.1 This Agreement shall remain in effect until terminated by You or the Company.
10.2 You may terminate this Agreement by deleting the App and all copies thereof from your Device.
10.3 The Company may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice.
10.4 This Agreement will terminate immediately, without prior notice from the Company, if You fail to comply with any provision of this Agreement.
10.5 Upon termination of this Agreement, You shall cease all use of the Apps and delete all copies of the Apps from your Device.
10.6 Termination of this Agreement shall not entitle You or the Customer to any refund, credit, or other compensation from the Company. Termination of this Agreement will not limit any of the Company’s rights or remedies at law or in equity in case of breach by You (during the term of this Agreement) of any of your obligations under the Agreement.
- Data. The Company may collect electronic data or information related to your use of the Apps, including user, technical and performance information about You, your locale, your Device, the operating system, the Apps, App usage, and data and processing instructions submitted to an App or to the Platform through an App, retrieved from the Platform through an App or Device, or otherwise supplied as a result of App, Platform or Device settings or instructions You have initiated or confirmed (collectively “Data”). Luna may use such Data to provide and improve upon the Platform, Apps, related features and functionalities, future enhancements and customer support. Luna may also: (a) analyze Data, combine Data with other data and create aggregated data for purposes consistent with this Section (collectively “Aggregate Data”); and (b) use without restriction such Aggregate Data provided that your identity, or the identity of the Customer, cannot be reasonably ascertained. Further, Luna or the App may provide Data to the Company’s contracted third party service providers for purposes consistent with this Section.
- Modifications to the Agreement. The Company reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material, the Company will provide at least thirty (30) days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at the sole discretion of the Company. By continuing to access or use the Apps after any revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, you are no longer authorized to use the Apps.
- General. (a) The Agreement constitutes the entire agreement between You and the Company, and supersedes all prior and contemporaneous written or oral agreements between You and the Company, regarding your use of the Apps . (b) You may be subject to additional terms and conditions that apply when You use or purchase the Company’s other products or services. (c) This Agreement will be governed by and construed under the law of the State of California without regard to conflict of laws provisions. If You and the Company have a dispute, You and the Company agree to try for sixty (60) days to resolve it informally. The federal and state courts of Santa Clara County, California shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of the federal and state courts of California and service of process being effected upon it by registered mail. You agree that any claim or cause of action related to this Agreement must be filed within one (1) year after the cause of action arose or be forever barred. (d) The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. (e) You must comply with all domestic and international export laws and regulations that apply to the Apps, which include restrictions on destinations, end users, and end use. (f) You represent and warrant that You are not:
(i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a“terrorist supporting” country; and (ii) listed on any U.S. Government list of prohibited or restricted parties. (g) You acknowledge and agree that Apple, Google and their respective subsidiaries and affiliates, are third party beneficiaries of this Agreement with the right to enforce this Agreement against You as a third party beneficiary. (h) You may not assign or transfer any of your rights or obligations under this Agreement to a third party without the prior written consent of the Company. The Company may freely assign this Agreement.
If You have any questions, complaints or claims with respect to the Apps, please contact the Company at: firstname.lastname@example.org