Master Subscription and Services Agreement

Last Updated: 25 June, 2025

THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT (“AGREEMENT”) IS ENTERED INTO BY AND BETWEEN THE CUSTOMER (AS DEFINED BELOW), AND LUNA XIO, INC., A DELAWARE CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS AT 1900 EMBARCADERO RD., SUITE 109, PALO ALTO, CA 94303 (“LUNA”). THIS AGREEMENT GOVERNS CUSTOMER’S ACCESS AND USE OF LUNA MATERIALS. BY ACCEPTING THIS AGREEMENT, BY: (a) CLICKING A BOX INDICATING ACCEPTANCE, OR (b) EXECUTING AN ORDERING DOCUMENT THAT REFERENCES THIS AGREEMENT; OR (c) ACCESSING OR OTHERWISE USING ANY LUNA MATERIALS, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF CUSTOMER’S ACCEPTING THIS AGREEMENT (THE “EFFECTIVE DATE”). IF THE INDIVIDUAL AGREEING TO THIS AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THE TERMS OF THIS AGREEMENT. THIS AGREEMENT INCLUDES ANY CURRENT OR FUTURE ORDERING DOCUMENTS AND PSTS (AS DEFINED BELOW), AND ALL SUCH DOCUMENTS ARE INCORPORATED BY THIS REFERENCE. CUSTOMER AND LUNA MAY ALSO BE REFERRED TO HEREIN EACH AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.” THIS AGREEMENT INCORPORATES ANY PRODUCT SPECIFIC TERMS THAT MAY BE APPLICABLE TO CERTAIN LUNA MATERIALS.

1. DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Confidential Information” means all information and materials furnished by either party (the “Disclosing Party”), which: (a) if in written format is marked as confidential; (b) if disclosed verbally is noted as confidential at time of disclosure; or (c) in the absence of either (a) or (b) is information which a reasonable party would deem to be non-public information and confidential. Confidential Information shall include, but not be limited to: (w) Luna Materials; (x) nonpublic information relating to the Disclosing Party’s technology, products, services, processes, data, customers, business plans and methods, promotional and marketing activities, finances and other business affairs; (y) third-party information that the Disclosing Party is obligated to keep confidential; and (z) the nature, content and existence of discussions or negotiations between the parties. Confidential Information does not include information that the recipient of Confidential Information (“Receiving Party”), can demonstrate by documentation: (i) was already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information directly or indirectly from or on behalf of the Disclosing Party; (ii) was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party’s Confidential Information; or (iii) was or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of the Receiving Party or any of its Representatives.

“Customer” means the person, firm or company named in the Ordering Document. In the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Ordering Documents.

“Customer Application” means a software application that Customer creates to interoperate with the Luna Cloud or Luna Software using Luna API or SDK, and includes any services (web-based or other services) made available by Customer through that application.

“Customer Data” means any data that is uploaded by or on behalf of Customer to the Luna Cloud.

“Customer Materials” means any materials, resources, systems or networks provided or made available/accessible by Customer which may be necessary for the provision or performance of Technical Services.

“SoW Deliverables” means those reports, analyses and/or other materials specifically identified in a Statement of Work to be provided to Customer by Luna, provided, however that SoW Deliverables shall not mean or include any improvements, enhancements, additions, modifications or derivatives of Luna’s generally available commercial offerings.

“Documentation” means user manuals, training materials, descriptions and specifications, technical manuals, supporting materials and other information relating to the Luna Cloud or Luna Software made generally available by Luna, whether distributed in print, electronic, or video format, provided however that Documentation shall not include any marketing, advertising or social media content.

“Luna Analyses” means statistical and other information related to the performance, operation and use of the Luna Cloud and usage data derived from the use of Luna Materials (including the APIs), including, but not limited to, machine learning models, augmented human intelligence development, algorithm improvement, or similar aggregation activities.

“Luna Cloud” means: (a) means Luna’s communication and telemetry solution as a service; and (b) any other cloud-based software that Luna hosts and makes generally available through an application programming interface(s) (“API”).

“Luna Materials” means the Luna Cloud, Luna Software, Luna Support, Documentation, SoW Deliverables, and any and all related and underlying technology including without limitation, processes, formulas, tools, ideas, concepts, methodologies, models, software, know-how, business practices, trade secrets, information and ideas developed by Luna or its licensors; and any derivative works, modifications, or improvements of any of the foregoing; and all intellectual property rights therein.

“Luna Software” means all software provided by Luna under an Ordering Document for installation and use by Customer, whether on a Customer operated desktop, device, server or cloud, and includes, but is not limited to source code, binaries, firmware, mobile applications, sample code, scripts, and Software Development Kits (“SDK”) whether or not originally developed by Luna.

“Luna Support” means the maintenance, support and technical assistance that Luna makes generally available to its licensees of Luna Software. 

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

“Ordering Document” means a quote, order form, proposal and/or SOW. By entering into an Ordering Document hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Ordering Documents may be entered into by Customer either directly with Luna or with a Reseller.

“Product Specific Terms” or “PSTs” are additional terms and conditions that are applicable to the use of certain Luna Materials. PSTs will be set forth in accompanying material, a URL, or as an addendum to an Ordering Document, or by other reasonable means.

“Purchase Order” or “PO” means Customer’s written or electronic order to Luna for the Luna Cloud, Luna Software, Luna Support and/or Technical Services.

“Representatives” means a party’s employees, officers, agents and legal advisors.

“Reseller”means an independent third party with which Luna has a reseller agreement in place authorizing the resale of some or all of the Luna Materials by such third party to Customer.

“Statement of Work” or “SOW” means a Statement of Work as signed between the parties that at a minimum: (a) is signed on behalf of both parties by their authorized representatives; (b) contains a description of the Technical Services to be performed and the SoW Deliverables, if any, to be delivered to Customer; (c) the amount, schedule, and method of payment; and (d) any other terms and conditions agreed upon by the parties in connection with the Technical Services to be performed pursuant to such Statement of Work. 

“Subscription Term” means the period of time during which Customer is: (a) authorized to access the Luna Cloud; and/or (b) licensed to install and use Luna Software, as specified in the applicable Ordering Document.

“Technical Services” means those services which may include configuration, integration, implementation, installation, training and/or other professional services, specified in one or more Ordering Documents signed by an authorized representative of both parties.

2. ACCESS TO LUNAMATERIALS

2.1 Luna Cloud. During the Subscription Term, Luna: (a)grants Customer a non-exclusive, non-transferable, limited right to access and use the Luna Cloud in accordance with the terms herein; (b) will make the Luna Cloud available to Customer for Customer Data pursuant to this Agreement, and the applicable Ordering Documents; and (c) will use commercially reasonable efforts to make the Luna Cloud available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Luna shall give advance electronic notice); and (ii) any unavailability caused by circumstances beyond Luna’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, criminal acts of third parties, Internet service provider failure or delay, or denial of service attack.

2.2 Luna Software. During the Subscription Term, Luna grants Customer a non-exclusive, non-transferable, limited license to install and use Luna Software as specified in the Ordering Document for Customer’s internal use, in accordance with the terms herein, and subject to any applicable Product Specific Terms.

2.3 Luna Materials. If there are Luna Materials in addition to the Luna Cloud or Luna Software listed on an Ordering Document, Lunawill make such Luna Materials available for access and use. Customer acknowledges that such other Luna Materials may be subject to additional PSTs.

2.4 Reseller Orders.. Customer may enter into an Ordering Document with a Reseller for the purchase of the Luna Cloud, Luna Software or Luna Materials governed by this Agreement. Where Customer purchases through a Reseller, the Reseller and Customer will enter into a separate agreement setting forth the fees to be paid by Customer to the Reseller for the applicable Luna Cloud, Luna Software and/or Luna Materials, as well as any other terms or conditions that may apply between them (“Reseller Agreement”). Subject to receiving payment from the Reseller, Luna will provide to Customer the Luna Cloud, Luna Software and/or Luna Materials under any such Ordering Document pursuant to the terms and conditions of this Agreement. Customer acknowledges that Luna will not be responsible for: (a) the obligations of the Reseller to Customer under the Reseller Agreement; (b) the acts or omissions of the Reseller; or (c) for any Reseller or third party products or services furnished to Customer by the Reseller. Customer’s sole and exclusive recourse with respect to any rights or obligations set forth in the Reseller Agreement will be against the Reseller. Section 6 (Fees and Payment) below will not be applicable where Customer purchases through a Reseller as payment and taxes will typically be addressed in the Reseller Agreement, unless the relationship between Luna and Reseller is terminated, in which case the Fees shall be paid directly to Luna. Customer acknowledges and agrees that Luna may share
 Customer Confidential Information with Reseller as a Representative subject to Section 8.  If there is any conflict between the provisions of this Agreement and the Reseller Agreement, then the provisions of this Agreement prevail.

3. USAGE OF LUNA CLOUD AND LUNA SOFTWARE
4. Subscriptions. Customer acknowledges that use of the Luna Cloud may require Customer to license and install certain Luna Software.Unless otherwise provided in the applicable Ordering Document access to and use of the Luna Cloud and Luna Software are purchased as subscriptions for the Subscription Term stated in the applicable Ordering Document. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Luna regarding future functionality or features.
5. Customer Responsibilities. Customer will: (a) be responsible for: (i) procuring and the deploying the necessary Luna Software for Customer’s desired flow of information across locations and devices; and (ii) the design, operation, performance and use of any Customer Application; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Luna Materials, and notify Luna promptly of any such unauthorized access or use; and (c) use the Luna Materials only in accordance with this Agreement and applicable laws and government regulations

3.3 Customer Data. Customer manages and controls its installation, deployment and use of Luna Software and determines the collection and transmission of Customer Data which is used with Luna Cloud. Customer acknowledges and agrees that it – and not Luna – is solely responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data and Customer’s use of Customer Data with the Luna Materials. Customer agrees to abide by all applicable laws and regulations regarding the collection, disclosure, and use of the Customer Data, including without limitation, all applicable privacy and data security laws and regulations. Customer acknowledges and agrees that it will not send to Luna or upload any sensitive, personally identifiable information that is subject to specific regulations or laws that impose increased protections and/or obligations with respect to handling that type of information (including, but not limited to, financial, health, social security numbers or other government identification numbers, ethnicity, sexual orientation and political affiliations or any other information where unauthorized disclosure could cause material or severe harm or impact to Luna or third parties.

3.4 Restrictions. Customer will not: (a) make the Luna Materials available to anyone other than Customer, or use the Luna Materials for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Ordering Document or the Documentation; (b) sell, resell, license, sublicense, distribute, rent or lease the Luna Materials or any portions thereof, or include any portions of Luna Materials in a service bureau or outsourcing offering; (c) use the Luna Cloud or Luna Software to store or transmit Malicious Code or any infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) interfere with or disrupt the integrity or performance of the Luna Cloud or third-party data contained therein; (e) attempt to gain unauthorized access to any Luna. Materials ; (f) copy or use any of Luna intellectual property except as permitted under this Agreement; (g) modify, copy, or create derivative works of the Luna Materials or any part, feature, function or user interface thereof; (h) frame or mirror any part of the Luna Cloud, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; (i) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Luna Cloud or any Luna Software (or SoW Deliverables, if applicable), or parts thereof, or access it to: (i) build a competitive product or service; (ii) build a product or service using similar ideas, features, functions or graphics of any Luna Materials; or (iii) copy any ideas, features, functions or graphics of any parts of the Luna Materials .

3.5 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. Luna may identify and describe the Open-Source Components of Luna Software on a webpage, in Documentation, README or text files, or by some other reasonable means. Luna’s use of Open-Source Components in the Luna Software will not: (a) materially or adversely affect Customer’s right to use that part of the Luna Software; or (b) cause any Customer software to become subject to an open-source license, provided Customer only uses Luna Software in accordance with the terms of this Agreement and uses any Open-Source Components in accordance with the applicable Open-Source License.

3.6 Use with Third Party Products. If Customer uses Luna Materials with third party products, such use is at Customer’s sole risk. Customer is responsible for complying with any third-party provider terms, including its privacy policy. Luna does not provide support or guarantee ongoing integration support for products that are not a native part of the Luna Materials.

6. SUSPENSION. Any use of the Luna Materials in breach of Section 3.0, may result in Luna’s suspension of access to the Luna Cloud and/or Luna Support and/or Technical Services, provided, however that Luna will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

7. TECHNICAL SERVICES
8. Provision of Technical Services. Luna will perform Technical Services for Customer if and as set forth in each applicable SOW, subject to the terms and conditions of this Agreement and the applicable SOW.
9. Assistance.Customer acknowledges that timely performance of Technical Services may be contingent upon access to applicable Customer Materials, personnel and/or facilities. Customer agrees to provide such access, and to reasonably cooperate with Luna during a Technical Services project. Luna will have no liability for any delay or deficiency to the extent resulting from Customer’s inability or unwillingness to provide such Customer Materials and access as described in this Section.
10. Customer Materials. Customer hereby grants Luna a limited, revocable right to use any Customer Materials solely for the purpose of providing Technical Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in and to the Customer Materials. Customer warrants that Customer has and will have sufficient rights in the Customer Materials to grant the rights to Luna under this Agreement and that the Customer Materials will not violate any third-party rights.
11. FEESANDPAYMENT
12. Fees. Customer will pay all fees specified in Ordering Documents (“Fees”). Except as may otherwise specified herein or in an Ordering Document: (a) payment obligations are non-cancelable and Fees paid are non-refundable; and (b) quantities purchased cannot be decreased during the relevant Subscription Term. 
13. Invoicing and Payment. Customer will provide Luna with valid and updated credit card information, or with a valid Purchase Order or alternative document reasonably acceptable to Luna. If Customer provides credit card information to Luna, Customer authorizes Luna to charge such credit card for all items listed in the Ordering Document for the initial Subscription Term and any renewal Subscription Term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Ordering Document. In addition, if there are quantity or usage limits applicable and Customer exceeds such limits during its Subscription Term, Customer authorizes Luna to invoice – and Customer agrees to pay – such excess charges in accordance with the fees and invoicing schedule on the applicable Ordering Document. If the Ordering Document specifies that payment will be by a method other than a credit card, Luna will invoice Customer in advance and otherwise in accordance with the relevant Ordering Document. Unless otherwise stated in the Ordering Document, Fees are due net thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Luna and notifying Luna of any changes to such information.
14. Overdue Charges. If any invoiced amount is not received by Luna by the due date, then without limiting Luna’s rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; and/or (b) Luna may condition future subscription renewals and Ordering Documents on payment terms shorter than those specified in the “Invoicing and Payment” section above.
15. Suspension of Use and Acceleration. If any charge owing by Customer under this or any other agreement is thirty (30) days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized Luna to charge to Customer’s credit card), Luna may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend access to the Luna Cloud and/or Luna Support and/or Technical Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Luna will give Customer at least ten (10) days’ prior notice that its account is overdue before suspending services to Customer.

16. Payment Disputes. Luna will not exercise its rights under the “Overdue Charges” or “Suspension of Use and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
17. Taxes. Luna’s Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Luna has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Luna will invoice Customer and Customer will pay that amount unless Customer provides Luna with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Luna is solely responsible for taxes assessable against it based on its income, property and employees.

18. INTELLECTUAL PROPERTY RIGHTS
19. Customer Materials. Lunaagrees that Customer or its suppliers retain all right, title and interest (including all intellectual property rights) in and to the Customer Application(s), Customer Data and Customer Materials. Except for the express limited rights set forth in this Agreement, no right, title or interest in any Customer Data or Customer Materials is granted to Luna.
20. LunaMaterials . Customer agrees that Luna or its suppliers retain all right, title and interest (including all intellectual property rights) in and to the Luna Materials. Except for the express limited rights set forth in this Agreement, no right, title or interest in any portions of Luna Materials is granted to Customer. There are no implied licenses.
21. License to SoW Deliverables. The Technical Services Luna performs (e.g., providing guidance on configuring the Luna Cloud or assistance on installing Luna Software), and any resulting SoW Deliverables are generally applicable to Luna’s business and are part of Luna Materials. Subject to the terms and conditions of this Agreement (including the restrictions in Section 3.4 (Restrictions)), Luna hereby grants Customer a limited, non-exclusive, royalty-free, non-transferable worldwide license to use the SoW Deliverables internally solely in connection with Customer’s use of the Luna Cloud and/or Luna Software during the Subscription Term in which such Customer has use of such Luna Cloud and/or Luna Software. The parties may mutually agree to SOWs with additional terms and restrictions related to the use of SoW Deliverables provided as part of that project, in which case those terms and restrictions will apply for purposes of those SoW Deliverables only.
22. License by Customer toLuna. During the applicable Subscription Term Customer grants Luna, its Affiliates and applicable service providers a worldwide, limited license to host, copy, use, transmit and display Customer Data for Luna to provide and improve theproper operation of the Luna Cloud, Luna Software and associated systems in accordance with this Agreement. Subject to the limited license granted herein, Luna acquires no right, title or interest from Customer in or to any Customer Data.
23. License by Customer to Use Feedback. Customer grants to Luna and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the Luna Materials. 
24. Luna Analyses. Customer acknowledges and agrees that Luna may collect and use Luna Analyses to create statistical analyses and to develop, improve, support, and operate its products and services. Luna Analyses will not incorporate any Customer Data or Confidential Information in a form that could serve to identify Customer or any users of the Customer Application. Luna retains all intellectual property rights in Luna Analyses. Luna agrees that it will not sell or use Luna Analyses for the benefit of any third party.
25. Federal Government End Use Provisions.Luna provides the Luna Cloud and Luna Software, including related technology, for ultimate federal government end use in accordance with the following: The Luna Cloud and Luna Software consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Luna Cloud and Luna Software shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.

26. CONFIDENTIALITY

27. Restrictions. Each Party acknowledges that in connection with this Agreement such Party may receive or gain access to Confidential Information of the Disclosing Party. As a condition to being provided with such Confidential Information, the Receiving Party agrees: (a) not to use the Disclosing Party’s Confidential Information other than as strictly necessary to exercise its rights or perform its obligations under this Agreement, including without limitation not to use any of the Disclosing Party’s Confidential Information in any manner to the detriment of the Disclosing Party or to obtain any competitive advantage relative to the Disclosing Party; (b) to maintain the Disclosing Party’s Confidential Information in strict confidence and not to disclose the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent, provided, however, that the Receiving Party may disclose the Confidential Information to its Representatives who: (i) have a “need to know” for purposes of any performance, or exercise of any rights with respect to such Confidential Information under this Agreement; (ii) have been apprised of this restriction; and (iii) are themselves bound by written nondisclosure agreements or obligations at least as restrictive as those set forth in this Section provided, further, that the Receiving Party shall be responsible for ensuring its Representatives’ compliance, and shall be liable for any of its Representatives’ noncompliance; and (c) notify the Disclosing Party in writing immediately of any unauthorized access, possession or use of the Disclosing Party’s Confidential Information of which it may become aware and cooperate fully with the Disclosing Party in any investigation or litigation relating to or arising from any such unauthorized acts.
28. Standard of Care. The Receiving Party shall use, and ensure that its Representatives use, reasonable care, at least as protective as the efforts it uses with respect to its own confidential information, to safeguard the Disclosing Party’s Confidential Information from use or disclosure other than as permitted hereby.

8.3  Exceptions. If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall: (a) to the extent legally permissible, provide prompt written notice to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy or waive its rights under this Section; and (b) disclose only the portion of Confidential Information that it is legally required to produce. If a protective order or other remedy is not obtained, or the Disclosing Party waives compliance, the Receiving Party shall, at the Disclosing Party’s expense, use reasonable efforts to obtain assurance that confidential treatment will be afforded the Confidential Information.

29. REPRESENTATIONS ANDWARRANTIES
30. Representations.Each party represents that it has validly entered into this Agreement and has the legal power to do so.
31. LunaWarranties. Lunawarrants that: (a) the Luna Cloud will operate in substantial conformity with the applicable Documentation during the applicable Subscription Term; (b) for ninety (90) days from delivery, the Luna Software substantially complies with the applicable Documentation, unless other terms are set forth in PSTs for such Luna Software; and (c) Technical Services will be provided in a professional and workmanlike manner and substantially in accordance with the applicable SOW. If Luna is not able to correct any reported non-conformity with this warranty, either Party may terminate the applicable Ordering Document or SOW (as applicable), and Customer, as its sole remedy, will be entitled to: (i) receive a refund of any prepaid unused Subscription Fees for the Luna Cloud or the Fees paid for the non-conforming Luna Software (unless other terms are set forth in PSTs for such Luna Software); and/or (ii) a refund of the Fees paid for the non-conforming Technical Services; as applicable. This warranty will not apply if the error or non-conformance was caused by misuse of the Luna Cloud or Luna Software, modifications to the Luna Software by Customer or any third-party, or third-party hardware, software, or services used in connection with the Luna Cloud or Luna Software. For Technical Services, this warranty will not apply unless Customer provides written notice of a claim within thirty (30) days after expiration of the applicable SOW.
32. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, THE LUNA MATERIALS AND TECHNICAL SERVICES ARE PROVIDED “AS IS,” AND LUNA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. LUNA DOES NOT WARRANT THAT THE USE OF THE LUNA MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

33. MUTUALINDEMNIFICATION
34. Indemnification by Luna.Luna will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any portion of the Luna Cloud or the Luna Software provided pursuant to an Ordering Document, and when used during the applicable Subscription Term in accordance with this Agreement, infringes any US intellectual property right of such third party and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by Luna (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of such Luna Materials results (or in Luna’s opinion is likely to result) in an infringement claim, Luna may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using such Luna Materials; or if (a) and (b) are not commercially reasonable; (c) terminate this Agreement, or the applicable Ordering Document or SOW, and refund to Customer any prepaid unused Fees for the Luna Cloud, and refund any fees paid for the Luna Software as depreciated on a pro-rata basis over the then current Subscription Term. The foregoing indemnification obligation of Luna will not apply to the extent the applicable claim is attributable to: (i) the modification of the Luna Cloud or Luna Software by any party other than Luna or based on Customer’s specifications or requirements; (ii) the combination of the Luna Cloud or Luna Software with products or processes not provided by Luna; (iii) any use of the Luna Cloud or Luna Software in non-conformity with this Agreement; or (iv) any action arising as a result of Customer Data, or any deliverables or components not provided by Luna.
35. Indemnification by Customer. Customer will defend Luna and its Affiliates against any claim, demand, suit or proceeding made or brought against Luna by a third party arising from: (a) Customer’s use of the Luna Materials or any Deliverable in an unlawful manner or in violation of the Agreement, the Documentation, or Ordering Document; (b) any Customer Application, Customer Data or Customer’s use of Customer Data with the Luna Materials; or (c) any Customer product or service used in connection with the Luna Materials, and will indemnify Luna from any damages, attorney fees and costs finally awarded against Luna as a result of, or for any amounts paid by Luna under a settlement approved by Customer in writing. 
36. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party will: (a) promptly notify the indemnifying party in writing of the claim; (b) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense; and (c) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim shall not relieve the indemnifying party of its obligations. However, the indemnifying party shall not be liable for any litigation expenses the indemnified party incurred before such notice was given, or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
37. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

38. LIMITATIONOFLIABILITY
39. Exclusion of Consequential and Related Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, PRODUCTION, GOODWILL OR ANTICIPATED SAVINGS, OR BUSINESS INTERRUPTION OR OTHER COMMERCIAL, PERSONAL, ECONOMIC OR OTHER DAMAGES, LOSSES OR INJURY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES OR INJURIES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
40. Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT WILL LUNA’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT RECEIVED BY LUNA FROM CUSTOMER PURSUANT TO THIS AGREEMENT (OR IN THE CASE OF CUSTOMER PURCHASING FROM A RESELLER, THE AMOUNT RECEIVED BY LUNA FROM THE RESELLER FOR CUSTOMER’S PURCHASES OF THE LUNA CLOUD, LUNA SOFTWARE AND LUNA MATERIALS), IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE
41. Exceptions. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES SHALL NOT APPLY IN ANY MANNER WHATSOEVER TO A PARTY’S FRAUD OR WILLFUL MISCONDUCT OR FOR CLAIMS AND DAMAGES ARISING FROM INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, BREACH OF SECTION 3.4 (RESTRICTIONS) OR 8 (CONFIDENTIALITY), AND DUTIES AND OBLIGATIONS PURSUANT TO SECTION 10 (INDEMNIFICATION).
42. Term of Agreement. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. If there is no Ordering Document, SOW or Retrieval Right currently in effect, either party may terminate this Agreement upon written notice to the other party. Each Ordering Document will terminate upon expiration of the applicable Subscription Term, unless expressly stated otherwise therein or in this Agreement.
43. Term of PurchasedSubscriptions.The term of each subscription shall be as specified in the applicable Ordering Document. Except as otherwise specified in an Ordering Document, Subscription Terms will automatically renew for additional one (1) year Subscription Terms, unless either Party gives the other written notice (email acceptable) at least thirty (30) days before the end of the relevant Subscription Term. Except as expressly provided in the applicable Ordering Document, renewal of promotional or one-time priced subscriptions will be at Luna’s applicable list price in effect at the time of the applicable renewal.
44. Termination for Cause. Either Party may terminate this Agreement (including all related Ordering Documents) if the other Party: (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that Party and is not dismissed within sixty (60) days. Except where an exclusive remedy is specified, the exercise of either Party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. For any termination of this Agreement by Customer for cause in accordance with Section 12.2, Customer shall be entitled to a refund of: (a) any prepaid unused Subscription Fees for the Luna Cloud; and (b) a pro-rata portion of the Fees for Luna Software for the then current Subscription term purchased hereunder
45. Effect of Termination; Luna CloudCustomer Data Retrieval. Upon written notice to Luna, Customer will have up to thirty (30) calendar days from termination or expiration of this Agreement to access the Luna Cloud solely to the extent necessary to retrieve Customer Data (“Retrieval Right”). If Customer exercises its Retrieval Right, this Agreement and the applicable Ordering Document shall continue in full force and effect for the duration of the Retrieval Right. Luna shall have no further obligation to make Customer Data available after termination of this Agreement and may thereafter promptly delete Customer Data. After the Retrieval Right period, Customer will have no further access to Customer Data and shall cease use of and access to the Luna Cloud (including any related Luna Materials) and delete all copies of the Documentation, any associated passwords or access codes, and any other Luna Confidential Information in its possession. Notwithstanding any termination or anything to the contrary in this Agreement or any Ordering Document, Customer shall pay for all of its use of the Luna Cloud.

46. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Effect of Termination; Customer Data Retrieval.” will survive any termination or expiration of this Agreement for so long as Luna retains possession of Customer Data.

47. GENERALPROVISIONS
48. Export Compliance.The Luna Materials and other Luna technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Luna and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use the Luna Cloud or any Luna Materials in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria or Crimea) or in violation of any U.S. export law or regulation.
49. Modification. From time to time, Luna may modify this Agreement. Unless otherwise specified by Luna, changes become effective for Customer upon renewal of the then-current Subscription Term or upon the effective date of a new Ordering Document after the updated version of this Agreement goes into effect. Luna will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Ordering Document, and in any event continued use of the Luna Cloud or Luna Software after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
50. Entire Agreement andOrderofPrecedence.This Agreement is the entire agreement between Luna and Customer regarding Customer’s access and use of the Luna Materials, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that if Customer issues a Purchase Order, then: (a) any such purchase order submitted by Customer is for its internal purposes only, and Luna rejects, and in the future is deemed to have rejected, any Purchase Order terms to the extent they add to or conflict in any way with this Agreement or the applicable Ordering Document and such additional or conflicting terms will have no effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Ordering Document, (2) this Agreement, and (3) the Documentation. No term or condition in any agreement between a Reseller and Customer modifies this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
51. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
52. Third-PartyBeneficiaries.There are no third-party beneficiaries under this Agreement.
53. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
54. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
55. Assignment. A Party may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Ordering Documents), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. 
56. Dispute Resolution. Each Party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other Party of the specific issue(s) in dispute (and reference the relevant provisions of the Agreement which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the Parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The Parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this section shall not apply to claims subject to indemnification under Section titled “Mutual Indemnification” or prior to a Party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
57. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this section and will be deemed to have been received by the addressee: (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch; (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (d) if given by email, immediately upon receipt. Email notifications to Luna shall be to legal@lunaxio.com. Notwithstanding the foregoing, except for notices pertaining to non-payment and except as otherwise expressly permitted in this Agreement or in an Ordering Document, notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email.
58. Governing Law; Jurisdiction and Venue. This Agreement will be governed by and construed under the law of the State of California without regard to conflict of laws and provisions. 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 courts of California and service of process being effected upon it by registered mail sent to the address set forth at the beginning of this Agreement.